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Bathurst Burr: when self-deception is a standard condition

council standard conditions

Standard conditions prevent rain water being harvested for drinking unless the developer gets an exemption

By Michael Mobbs

24 February 2014 — Self-deception is standard business for local councils in Australia.

This condition is real, dominates council and developer decision-making and needlessly increases the cost of development.

This self-deception is practiced daily across Australia. It may be seen in the standard conditions local councils put into every development and building approval they issue each week.

The conditions:

  • run with the title and govern the use of the land and project until overturned by a future project
  • make up the bulk of the content of development and building approvals
  • are typically published on their websites so designers and developers may design and cost them into their projects
  • are included in most recommendations to councils for decisions by councillors, and in the majority of developments given, and which are delegated to council staff for approval
  • assume and promote, and mostly require, unsustainable development
  • omit requirements to stop, reduce or anticipate climate change
  • show no leadership from council, and invite none from developers, to achieve sustainable use of timber, water, energy and materials

Standard conditions are the default position of both developers and local councils. They say, without explicitly stating it, that, “We expect to approve and require unsustainable development by standard conditions. Ignore the claims in Council’s website that we aspire to sustainable development.”

There’s nothing I’ve seen, for example, in standard conditions by Australian councils that require developments not to use timber harvested from rainforests in Malaysia, Indonesia or elsewhere. Forest destruction of an enormous scale is one of the single biggest causes of climate change.

It’s standard conditions that cause most timber in Australia to be imported and sold from these places of pillage and destruction. Bonaparte’s retreat from Moscow, destroying everything in the path of his fleeing army; even Genghis Khan’s ravages of the water and other infrastructure of the countries he conquered – nothing, except the systemic environmental destruction in China, matches the scale and enormity of the ecological damage in countries such as Malaysia and Indonesia.

Here’s an example of a standard condition taken from 181 pages of standard conditions from one of the many councils claiming on its website to be a world leader in sustainability.

(239) WASTE AND RECYCLING COLLECTION CONTRACT

Prior to an Occupation Certificate being issued and/or commencement of the use, whichever is earlier, of the building the owner must ensure that there is a contract with a licensed contractor for the removal of all trade waste. No garbage is to be placed on the public way, for example, footpaths, roadways, plazas, and reserves at any time.

That means the council assumes there will be waste and that it needs to be taken away. And there must be a contract requiring payment – forever – by the owner(s) and showing times of removal (unless a future approval changes the condition).

This condition drives up the construction cost of development by thousands of dollars, and the cost of running a business, or living in a house or unit, by thousands of dollars for each year.

An example of rising waste collection costs.

Over the several years a Sydney restaurant in Surry Hills charged customers extra if they left food uneaten on their plates I got to know the owner and chef well. I’ve heard her take time with new customers to ask whether they wanted a small, medium or large serving, and to inform them of her charging policy. And I’ve heard her ask customers not to return when they left food on their plate.

Every time I ate there I went to the kitchen to thank her and every time she would show me the one small 10-litre bucket into which all of the waste food from the night’s cooking had gone. It was composted.

And every time she spoke to me with dismay of the unsympathetic harrying inflicted upon her by the council’s waste inspectors. These inspectors insisted she show them her trade waste contract and when she said she had none because she had no waste they would threaten her with fines and “heavy” her to get one. How educated and in touch would you say such a council officer is with the modern food-to-compost technology of sustainable restaurants?

The same council is the author of the waste and other unsustainable standard conditions in the notes below.

Councillors are unaware

Unless they’re a local government lawyer or planner or developer who deals with council approvals, most councillors have no knowledge of the extent, complexity or cost of standard conditions to both councils and developers.

Worse, when they make policies and plans and set visions or goals, councillors do not direct staff to review and amend standard conditions to bring them into line with the new policy or goals. Performance measures for council managers give them no incentive to simplify red tape and to amend the role, cost and negative impact of standard conditions.

Compare US Secretary of State John Kerry’s approach to climate change; Kerry’s made it part of the day-to-day business of his department.

Kerry insists climate change be a topic in every meeting between senior American and foreign officials. Thus, when government paid officials go to work they must demonstrate they’re implementing government policy.

He is also doing something any level of government can do; getting what is called a “whole of government” approach, where the policies are implemented at all levels and by all people working for that particular level of government.

That symmetry is not matched when councils and developers discuss the design of a project. To raise climate change solutions with council staff at the design stage is to trigger surprise and uncertainty in council staff who express opposition or concern about doing something unusual that they’ll have to deal with.

There are no standard conditions requiring projects to cut climate change impacts that require staff to address climate change I’m aware of. (If anyone can show me a council with climate stopping standard conditions that match Kerry’s smart administration I’ll walk backwards around Chippendale.)

In sum, sustainable development is the exception not the norm in Australia. The root causes are standard conditions.

Here’s a solution; an example of a sustainable condition by which councils would invite all developments to assume there will be no food waste, to require there will be none. It provides financial incentives for compliance:

“No waste or recycling contract shall be made for the building the use of which shall create no waste that leaves the site. In particular:

  • all food must be composted on site and used on gardens at the building, nearby parks or gardens or nearby farms
  • all glass waste shall be reduced to granules or other state that is suitable for use in recycling in cement and other materials
  • all cardboard waste shall be compacted on site and recycled
  • Where a building has no waste there shall be no rates for any waste service and a rate reduction will be allowed in each rate notice at an amount determined in Council’s rating decisions
  • Where a building owner seeks exemption from this condition they shall submit with the application for the exemption a request for a determination of the amount of higher rates to be paid.”

Consider the strategic barriers to this condition being implemented. If no food waste was standard for developments what would happen to the size, frequency and cost of waste collection to councils and developers?

The size and frequency of garbage trucks and their roaring dawn visits would shrink overnight. The portion of rates allocated to garbage would almost vanish, too.

What are the chances of a council garbage chief agreeing to it? It means his/her fleet of trucks would be shrunk. Would the chief choose sustainable financial trends and a diminished number of workers and trucks? Or choose to maintain the unsustainable army over which he/she exercises dominion at the expense of ratepayers?

Standard conditions assume almost every aspect of developments will be unsustainable. They support existing unsustainable council services, systems and fiefdoms. They offer no incentives for going sustainable to either council staff or developers. They are a disgrace and should be simplified with a red pen, some laughter born of hope, and swept out with a big broom labelled “less is more”.

Typical unsustainable conditions assume:

  • failing council business models will continue indefinitely
  • waste will be created and council’s services will be kept busy taking it away at a growing financial and environmental cost
  • councils waste services will continue to require garbage trucks rather than winding them down then getting rid of them or getting smaller ones
  • water and sewage will not be used sustainably and that to do so will cost more money arguing for a change if an exemption is made
  • government owned water and energy businesses may make decisions after the council has decided to approve the project and require – without a time limit – amendments to the design of the project, which allow the business to sell its water or energy to the building owners for an unlimited period in the future
  • there will be airconditioners, black or dark coloured roofs, no food production, no public transport, mostly car parking instead of mostly car share

Thus, any council seeking, say, to offer water or energy or waste services to an existing building that competes with a government business will have to devise a way to revoke or amend the approval previously issued and requiring the building to meet any requirements of the government monopoly service provider.

Standard conditions:

  • prevent rain water being harvested for drinking unless the developer gets an exemption – rough cost estimate of winning exemption is over $1000 for an ordinary house
  • make the plumbing for rain water far more expensive and complicated than it need be
  • prevent sewage being recycled for water to flush toilets and wash clothes unless the developer gets an exemption

It may be defensible to have red tape if it were productive and sustained our culture. But it isn’t and it doesn’t.

Anyone who tries to go sustainable will confront standard conditions that match the default position of all councils no matter the trumpeting calls and self-back-patting they award themselves on their websites. They have to argue to have the standard conditions replaced with sustainable ones.

Councils are conservative; most don’t implement new, best practices and are culturally frightened of change. Being sustainable in their day-to-day business is not what they do. It’s what they’re afraid of doing.

And their elected representatives rarely have any sense of the huge, avoidable costs their staff are creating out the back room with their standard conditions.

What’s the solution?

Start from a project that doesn’t pollute.

Why can’t councils assume a project will not pollute as the starting point and compel developers who don’t have best practice designs to shoulder the burden of persuading council the pollution is unavoidable?

Why can’t councils that claim to be going sustainable make their standard conditions require sustainable development? Their legislation expects it. The community expects it.

Most developments do not come to council for approval. Staff decide them and burden applicants with standard conditions. Any councillor truly committed to lowering costs of development would review and amend standard conditions to empower developers to propose sustainable projects and offer financial rewards for doing so such as height or floor space bonuses and rate reductions.

Why can’t councils require developers to prove their project must pollute, must create waste, must use timber from Malaysia and Indonesia, must have cars parked there, must use tiles and cement and stuff that sucks up huge amounts of energy, water and embodied energy during the construction, must take months to build instead of a few weeks using modular construction methods?

Why can’t councils require, instead, a condition like this for food waste:

Standard condition: No waste:

No food waste may leave the premise as garbage. All food waste will be composted and used for gardens on the site or the road verge unless the applicant is able to demonstrate that there is no feasible technology available for the site

For so long as the property composts all food waste it shall be entitled to a reduction in council rates equal to the amount saved from the garbage and tipping costs saved and an amount equal to the reduction in air pollution saved

Where the applicant is unable to demonstrate there is no feasible technology for preventing food waste to leave the site the rates for the property shall be higher by an amount at least equal to five per cent of the existing rate.

How would this condition affect developers, property owners and property values?

It would increase the value of the property.

The property value of a building is partly composed of the cost of operating the building.

Savings in operating the building for garbage, water, sewerage, energy or other costs can be capitalised and will increase the value of the building.

Every building, road, garbage truck, car, gutter, stormwater grate, dark or other coloured roof we see has been carefully, lengthily considered, required and approved with detailed conditions by councils.

The conditions are drawn up, documented and engineered by university and technically qualified architects, designers, engineers and financiers.

These folk have wrought the cities we live in and impose development requirements that are destroying our cultures.

Yes, these folk also require water, energy and transport systems that bring great increases in human welfare and health. In important, life-giving ways they sustain our culture.

But now we can see that the sum total of the damage being done by their designs and red tape is greater than the benefits. The standard design and approval solutions are unsustainable financially and environmentally.

To see how conservative council staff are, to bring this self-deception into public view and see the disconnect between rhetoric and daily practice, ask your local councillor act to increase property values, achieve truth in advertising about the council’s move towards sustainable development and to get council to have their standard conditions amended to assume sustainable development.

If this proves too much Councils might at least turn their conditions into plain English any reader may understand.

Michael Mobbs built Sydney’s Sustainable House in 1996, which provides it’s own water, sewage and energy services in inner Sydney. He has written two books, Sustainable House and Sustainable Food. See www.sustainablehouse.com.au.

Examples of standard conditions used by a council trumpeting it’s going sustainable:

Let us count the ways and gaze up at the mountain of conditions that cause financial and environmental damage to the recipients of the approvals every day they go out to direct the form and impact of development big and small.

Sydney City Council: http://www.cityofsydney.nsw.gov.au/development/development-applications/standard-conditions

Some unsustainable conditions used daily by the council are reproduced here in full:

“WASTE AND RECYCLING [Planner: Use for new residential and mixed use buildings with a residential component. Requires Council’s approval because Council collects waste from residential buildings]

(235) WASTE AND RECYCLING MANAGEMENT – RESIDENTIAL (a) The Waste Management Plan accompanying this Development Application has not been approved by this consent. [Planner: Only use (a) if a Waste Management Plan was submitted with the DA, otherwise delete] (b) A Waste Management Plan is to be submitted to and approved by Council prior to a Construction Certificate being issued. The plan must comply with the Council’s Policy for Waste Minimisation in New Developments 2005. All requirements of the approved Waste Management Plan must be implemented during construction of the development. (c) The building must incorporate designated areas or separate garbage rooms constructed in accordance with Council’s Policy for Waste Minimisation in New Developments 2005, to facilitate the separation of commercial waste and recycling from residential waste and recycling.

UPON COMPLETION OF THE DEVELOPMENT (d) Prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, the Principal Certifying Authority must obtain Council’s approval of the waste and recycling management facilities provided in the development and ensure arrangements are in place for domestic waste collection by Council. [Planner: Use for commercial, retail, industrial development]

(236) WASTE AND RECYCLING MANAGEMENT – COMMERCIAL (a) The Waste Management Plan accompanying this Development Application has not been approved by this consent. [Planner: Only use (a) if a Waste Management Plan was submitted with the DA, otherwise delete] (b) A Waste Management Plan is to be approved by the Certifying Authority prior to a Construction Certificate being issued. The plan must comply with the Council’s Policy for Waste Minimisation in New Developments 2005. All requirements of the approved Building Waste Management Plan must be implemented during construction of the development.

UPON COMPLETION OF THE DEVELOPMENT (c) Prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, the Principal Certifying Authority must ensure that waste handling works have been completed in accordance with: the Waste Management Plan; other relevant development consent conditions; and Council’s Policy for Waste Minimisation in New Developments 2005. [Planner: Use for minor development]

(237) WASTE AND RECYCLING MANAGEMENT – MINOR The proposal must comply with the relevant provisions of Council’s Policy for Waste Minimisation in New Developments 2005 which requires facilities to minimise and manage waste and recycling generated by the proposal.

(238) WASTE AND RECYCLING COLLECTION CONTRACT (SERVICED APARTMENTS) Prior to an Occupation Certificate being issued and/or commencement of the use, whichever is earlier, the building owner must ensure that there is a contract with a licensed contractor for the removal of all waste. No garbage is to be placed on the public way, e.g. footpaths, roadways, plazas, reserves, at any time. Note: Serviced apartments are not subject to a domestic garbage rates levy and therefore a domestic garbage service will not be provided by Council. [Planner: Use for any development other than residential]

(239) WASTE AND RECYCLING COLLECTION CONTRACT Prior to an Occupation Certificate being issued and/or commencement of the use, whichever is earlier, of the building the owner must ensure that there is a contract with a licensed contractor for the removal of all trade waste. No garbage is to be placed on the public way e.g. footpaths, roadways, plazas, and reserves at any time.” p79, 80

(44) NOISE FROM GLASS REMOVAL Glass must not be emptied or transferred from one receptacle to another anywhere in a public place. All glass must be emptied / transferred within the premises and removed in containers.

(432) SYDNEY WATER CERTIFICATE A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section on the web site www.sydneywater.com.au then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 13 20 92 for assistance.” Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to Council or the Principal Certifying Authority prior to an Occupation Certificate or subdivision/strata certificate being issued.

(455) RAINWATER HARVESTING & RAINWATER TANKS (a) Use Rainwater is only to be collected from roof catchments and its use is restricted to toilet flushing, washing cars, garden use and for washing machines only.

(i) All rainwater tanks installed are to be maintained by the owner in accordance with these provisions, the NSW Health Department Circular no 2002/1 “Use of rainwater tanks where a reticulated potable supply is available” and any other local water utility requirements.”

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