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By the authority of state legislation, local governments in all jurisdictions are required to prepare a range of statutory planning documents that are legally binding. At the local level, these include planning schemes, by-laws, codes and regulations within which the operational rules and criteria for development are set out. There is considerable variation in the format and content of these instruments within and between jurisdictions and the level of authority and autonomy given to local government to regulate. Regulations exist to control and manage the use and development of private land and are an integral part of the development process.

The regulations can be broadly categorised as follows:

Development control

Local councils have power over development assessments and are able to grant approval, grant approval with conditions, or refuse an application. The controls regulate allowable densities, height, external design and siting, building materials, open space provisions, and in some jurisdictions the level of developer contribution required to cover physical and/or community infrastructure costs arising from the proposed development. Local councils also have control over the demolition of buildings.

Land release/supply, subdivision control and infrastructure provision

The level of control over subdivision varies between jurisdictions. Where local councils do have control, this includes discretion over engineering standards for roads, drainage, allotment size and, in some jurisdictions, water and sewerage arrangements. Although local government has a significant role in infrastructure provision, it plays a more limited role in relation to land release/supply and coordination, especially in the major capital cities.

Building regulation

Local government does not set building regulations, it administers them in accordance with the Building Code and planning and building by-laws (for example relating to matters such as bushfires, water, waste management, salinity and energy efficiency). Where applications do not conform with the building regulations they are generally rejected in the first instance.

The Australian Building Codes Board

The Australian Building Codes Board (ABCB) is a joint initiative of all levels of Australian Government. The ABCB is responsible for:

  • developing and managing a nationally uniform approach to technical building requirements, embodied in the Building Code of Australia (BCA)
  • developing a simpler and more efficient building regulatory system
  • enabling the building industry to adopt new and innovative construction technology and practices.

The Board is responsible for the strategic oversight and direction of the regulatory reform program, policy development and direction, priorities and budget and financial control.

The Board consists of four industry representatives, a representative of the Australian Government, all state and territory governments, senior executives responsible for building regulatory matters, and an ALGA representative. The ABCB reports directly to the Australian Government, state and territory ministers responsible for building regulatory matters.

Productivity Commission Review of Building Regulation

Current funding arrangements for the Australian Building Codes Board (ABCB) are due to cease in June 2005. In February 2004, the Productivity Commission was requested by the Australian Government to undertake a research study on the contribution that reform of building regulation has made, through the ABCB and the Building Code of Australia (BCA), to the productivity of the building and construction industry.

Following the recommendations from the Productivity Commission report, released in November 2004, the Australian Government, in conjunction with the states and territories has begun to negotiate a new Intergovernmental Agreement (IGA) governing the operation of the ABCB.

In addition to the development of a new IGA, key findings from the Commission Study include:

  • Local governments are inappropriately eroding the national consistency of building regulation through their planning approval processes.
  • Regulations introduced by local government contain extra requirements, with increased costs for uncertain benefit.
  • No formal impact assessment or cost/benefit analysis is required for additional regulatory requirements imposed by local government through planning regulation.

In response to the Productivity Commission's recommendations, ALGA welcomes changes to the ABCB that seek to strengthen the role of the Board as it relates to the:

  • clarification of performance based requirements
  • improved delineation between planning and building regulation
  • incorporation of environmental requirements into the BCA through appropriate evaluation and analysis
  • a whole of government approach
  • the clarification of the objectives of building regulatory reform.

However, in responding to those recommendations noted above, ALGA does not consider the capacity for local government to respond to community expectation to inappropriately erode national consistency. As the Productivity Commission notes, councils can sometimes be frustrated by a lack of response from other tiers of government in introducing controls that better respond to local need or which address issues like environmental sustainability.

ALGA is of the view that it is a fundamental responsibility of local government to respond to the needs and aspirations of local communities. Individual communities, through their local elected representatives should have the freedom to develop desirable standards for their built environment.

Through effective community partnerships, local government has the ability to develop innovative, best-practice solutions to local requirements. This process ultimately leads to better built environments, tailored to community needs and should be encouraged, not restricted through further regulation.

ALGA is seeking to ensure that the role of local government to uphold community expectation is recognised in the negotiation of a new Inter-Governmental Agreement (IGA). ALGA's submission to the Productivity Commission study and response to the Commission's draft Report expand on the position of local government in relation to these recommendations and the reform of building regulation.

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