03 Sep 2009

Modernising Victoria's Planning Act

by Sallyanne Everett, Asra Hewitt

The changes proposed by the five Response Papers do not represent a complete overhaul of Victoria's Planning Act but a substantial upgrade.

In March 2009, the Victorian Government released the discussion paper "Modernising Victoria’s Planning Act: A discussion paper on opportunities to improve the Planning and Environment Act 1987" as part of a review of Victoria's principal planning legislation - the Planning and Environment Act 1987. An expert panel was also appointed to assist with the review and almost 200 written submissions were made in response to the Paper.

In August 2009, the Department of Planning and Community Development (DPCD) issued five Response Papers setting out proposed changes to the Act that respond to the issues and submissions arising from the Discussion Paper. In this article we briefly look at each of the Response Papers and the key changes proposed which are intended to improve the operation of Victoria's planning system.

Response Paper No. 1: The Objectives of Planning

In considering whether the current objectives of the Act are still relevant to the planning challenges of the future, the Response Paper acknowledges the role that the objectives play in providing high level guidance on the direction of planning and the planning framework. They do not seek to set out Government policy, but assist in the task of balancing competing policy objectives by decision makers.

In that context, the Response Paper comments that the current objectives are adequate to support policy development in the areas of climate change, housing affordability, environmentally sustainable development, heritage and culture. However health, design for sustainability and high quality urban design are identified as matters that ought to be included:

"The introduction of these new high level planning objectives will support Victoria's liveability through the recognition that planning can impact and enhance the provision of healthy environments, and the recognition that good quality and sustainable urban design is an essential contributor to a range of environmental, social and economic benefits for Victorian communities."

It is also proposed to make clear the requirement that all significant environmental, social and economic effects must be considered, by inserting a new objective "to balance environmental, social and economic considerations in decisions about the use and development of land".

Response Paper No. 2: The Amendment Process

This Response Paper notes that issues with the current amendment process include the length and uncertainty of the process, the varying quality of amendment documentation and that all amendments currently use essentially the same process, including amendments of a minor or technical nature which in 2008 represented approximately 36 percent of all approved amendments.

To improve efficiency in the process, the Response Paper proposes two separate tracks for the assessment of amendments - one for technical amendments and the other for standard amendments. The technical amendment track will apply to a prescribed class of amendments. Under this track, the Minister will prepare and approve the amendment without exhibition or consultation except that the Minister may consult with the relevant planning authority.

The standard amendment track will apply to all other amendments (except for state significant major developments, discussed below) and largely follow the current process with some important differences, which include:

1. Authorisation to prepare an amendment

While it is proposed to retain the requirement for Ministerial authorisation to prepare an amendment, new procedures will be put in place to simplify this step and clarify the information required to support a request for authorisation.

2. Who can prepare an amendment

Currently, an amendment can be prepared by the Planning Minister, a Council, another Minister or public authority. Under the proposed changes, the Minister will have the ability to authorise 'any person' to prepare an amendment. This may include a proponent where the planning authority doesn’t agree to prepare an amendment at the proponent's request or fails to make a decision on the request within 40 business days.

An authorised person will also be able to give notice of the amendment, consider submissions, refer submissions to a Panel, consider the Panel's report and make a recommendation to the planning authority about whether or not the amendment should be approved or refused.

Ministerial Guidelines will set out the circumstances in which a person may be an authorised person as well as the requirements for making an application to the Minister for authorisation. Authorisation will be limited to a specific amendment proposal and may be given subject to conditions and can be withdrawn at any time. Section 39 will also be amended to allow applications to VCAT for a review of a defect in procedure by an authorised person.

The Response Paper points out that the role of an authorised person will be to carry out certain procedural steps in the amendment process to enable the amendment to progress. It is not to make any decisions about the amendment or to exercise any of the broader functions and powers of a planning authority.

3. Certification of the amendment before exhibition

It is proposed to introduce a new requirement that an amendment be certified by the Secretary of the DPCD prior to its exhibition. This is to ensure that the amendment is in an appropriate form and to allow the Secretary to specify any public notice requirements. The response paper states that while this step will take additional time at the beginning of the process, it is intended to avoid problems later in the process and reduce the risk of procedural challenges and possibly the need to repeat steps.

4. Panel and directions hearing

The date for directions hearing is to be pre-set and specified in the public notice exhibiting the amendment. Such date is to be no more than 40 business days following exhibition, with a Panel hearing to be held within 30 business days from the directions hearing.

The proposed changes also provide that the directions hearing may be conducted by a person other than the Panel considering the submissions. While no changes to the Panel process are proposed, the Panel will be required to give any authorised person an opportunity to be heard and report its findings to such person as well as the planning authority.

5. Recommendation by the planning authority

Currently, a planning authority may adopt an amendment with or without changes or abandon the amendment. Under the proposed changes the planning authority is to make recommendations to the Minister as to whether an amendment be approved with or without changes or refused. The planning authority will not be able to abandon an amendment, with this power residing with the Minister.

Further, the existing ability for the planning authority to approve the amendment will be removed, with the Minister making the final decision on all amendments following recommendation by the planning authority.

6. Performance measures

To further improve the efficiency, effectiveness and transparency of the amendment process, it is proposed to introduce performance measures for undertaking a specific steps in the standard amendment track process. These measures are also intended to guide annual reporting on planning activity, discussed in Response Paper No. 5.

Response Paper No. 3: The Permit Process

There are approximately 50,000 permit applications lodged in Victoria each year using largely the same assessment approach. To assist in streamlining the assessment for up to 20 percent of applications, the Response Paper proposes introducing separate assessment tracks for permit applications based on whether the application is considered against clearly defined codes and requirements (the code assess track) or requires an assessment of its merits or against policy (merit assess track).

Under the code assess track, a decision on the permit application is to be made within a reduced time period of 14 days, directly by an authorised officer of the responsible authority without the need for public notice or review. The permit applicant will however have the opportunity to review the decision before VCAT and a simplified review process is proposed to be established to determine these types of applications.

The Response Paper also proposes changes to the process of amending permits including removal of the ability to a change a permit (including any plans, drawings and other documents approved under permit condition) by way of secondary consent. Any change is proposed to be approved under the amendment process in Division 1A of Part 4 of the Act.. Further, the current restriction on the ability of a responsible authority to amend permits issued at the direction of VCAT would be removed except for permits identified by VCAT.

To clarify those conditions which are to continue beyond the completion of a development, it is proposed to amend the structure of permit conditions to specify those that apply while a development is being carried out and those which are to have an ongoing life.

The paper also proposes a range of other changes to the Act, the VPPs and Regulations to improve and streamline the permit application process, clarify notice requirements, standardise permit conditions, improve the efficiency of the referral process and clarifying the permit triggers and aspects of a proposal that may be objected to.

Response Paper No 4: State Significant Major Development

This Response Paper responds to the opportunity provided by the review to implement a more proactive and transparent process for managing state significant development projects and identifying who will decide on whether or not they ought to be approved.

It is proposed to establish criteria for state significant major developments and create a new assessment process to be included in Part 9A of the Act. The assessment process adopts the "impact assessment track" contained in the Leading Practice Model prepared by the national Development Assessment Forum. This is designed for the assessment of proposals having the potential for significant impact and requires the preparation of an impact assessment report, publication of the report as part of the evaluation process and consideration of the proposal and submissions by an expert panel.

The proposed new provisions will not affect the assessment and approval processes for mining projects or other projects having specific assessment provisions such as major transport infrastructure the subject of the Major Transport Projects Facilitation Bill 2009.

Draft project criteria based on the scale and nature of development, the level of economic investment and its contribution to employment are included in the paper, with the following types of development for utility or infrastructure provision, industrial or commercial development being specified:

  • development in metropolitan Melbourne with a capital investment value (CIV) of $100M or more or expected to provide 100 or more full time equivalent (FTE) jobs;
  • development outside metropolitan Melbourne with a CIV of $50M or more or expected to provide 50 or more FTE jobs;
  • renewable energy projects with a capacity of 30 megawatts or more;
  • certain tourism developments including nature base tourism with a CIVof $10M or more;
  • development with a CIV of $40M or more in the Ports of Melbourne, Geelong, Hastings or Portland.

The draft criteria also specify the following as matters of state significance:

  • development requiring an Environment Effects Statement;
  • development by or on behalf of the State with a CIV of $10M or more;
  • any class of development or area specified in a planning scheme or by the Minister as being of state significance.

Where a development proposal meets the specified criteria and is defined as a state significant development, it must be assessed using the new process. In many respects, the process appears similar to a mini-EES assessment process, with exhibition of an impact assessment report, a program of public engagement, appointment of independent expert panel to assess the proposal and submissions having an enquiry role and including a requirement to conduct public hearings to consider submissions.

Following receipt of the panel report, the Minister may approve or refuse the proposal and give statutory effect to the decision by issuing a planning permit, making a planning scheme amendment or a combination of both.

Response Paper No 5: Other Modernisation Initiatives

This Response Paper identifies the remaining improvement opportunities to the operation of the Act with a focus on section 173 agreements, monitoring and reporting, e-Planning, fees and other technical issues. The proposed changes to the provisions governing section 173 agreements address issues raised during the public submission process as well as issues discussed in the 2004 "Review of Section 173 Agreements - Discussion Paper" prepared by Mark Dwyer. The proposed changes include:

  • removing the need for the Minister to be involved in lodging, ending and amending agreements, where not a party to the agreement;
  • introducing a right of review to VCAT for disputes relating to the interpretation or processes governing the amending and ending of agreements;
  • provision for assignment of obligations to subsequent owners of separate lots;
  • requirement that all agreements be registered on title.

The Response Paper also proposes to formalise current reporting activities by requiring the Minister, DPCD, planning and responsible authorities and referral authorities to provide annual reports of their planning activities, in line with the 2008 recommendations made by the Victorian Auditor-General's Office.

Where to from here?

Consistent with the theme of the Discussion Paper, the changes proposed by the five Response Papers do not represent a complete overhaul of Victoria's Planning Act but a substantial upgrade. The changes offer potential for substantive improvements in the key areas of the permit process, planning scheme amendments, assessment and determination of projects of state significance and section 173 agreements.

However, the extent to which real improvements will be made will depend on the detail of the statutory amendments and the various supporting documentation which will give effect to the proposed changes including Ministerial Guidelines, Regulations, amended VPPs, Practice Notes and Procedures.

Feedback on the proposed changes is being sought by DPCD to assist in shaping the final changes to the Act, with the intention that a draft Bill will be released for comment in November before its introduction in Parliament.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.