ARE PLANNING APPEAL RIGHTS NECESSARY? A COMPARATIVE STUDY OF AUSTRALIA, ENGLAND AND VANCOUVER BC

摘要

Planning appeal rights are a common feature of land use planning systems in Australia and England and the appeal right is a full merits review which enables the appeal body to stand in the shoes of the original decision maker. Such appeal rights are often justified on the basis that they ensure that local councils, or other planning authorities, are held accountable and do not act in a capricious matter. However, in jurisdictions where these merit appeals exist they sometimes create tension as they allow appeal bodies to overturn the planning decisions of democratically elected and accountable local councils. Through a comprehensive literature review, a series of over 145 qualitative based interviews as well as personal observations, this paper sets out the conclusions of a comparative study on the planning appeals systems in three Australian states (New South Wales, Victoria and Western Australia) and England to the urban governance system in the Canadian city of Vancouver BC. In Vancouver there are very limited planning appeal rights and the substance of planning decisions generally cannot be reviewed or appealed other than very narrowly in the common law courts. The development approvals processes in the city of Vancouver are also assessed and compared where it is found that in Vancouver planning and design decisions reside with specialist approvals boards comprised of skilled experts. This is compared with the approvals systems in Australia and England where decision-making power most often resides in local elected officials who may, or may not, delegate these powers to professional staff. The paper concludes that an appeal right against planning decisions is fundamental; as the study has shown that local governments have shown a capacity to make decisions based not on the planning merits but on other factors. The maintenance of appeal rights shields citizens from the possibility of parochial, erratic and potentially corrupt local decision-makers. However, the paper also argues that the scope of appeal right need not be a full merits review. Merits based appeals are found to be undemocratic as they often serve to replace the value judgement of the local council with that of the appeal body member who is neither elected nor accountable. Merit appeals create a parallel planning approvals system whereby local government is effectively usurped by developers on their way to an appeal hearing. To counter this, the paper argues that an alternative appeal process may be the answer. That is, an appellant must first demonstrate that the decision of the council is flawed in some manner before it can be overturned. Further, it is suggested that if more planning decisions were determined by professional staff, acting on behalf of, yet accountable to, their local councils, then many of the arguments for merits review appeals would dissipate. However, it is recognised that measures would be required to ensure the system did not descend into technocracy with planners making decisions in a political vacuum.