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Focus: Planning legislation shake up

18 February 2013

In brief: Following proposed zoning reforms announced last year, the Victorian Minister for Planning has put forward a raft of statutory reforms in amending legislation designed to improve the operation of the Victorian planning system. Special Counsel Meg Lee and Lawyer Will Duffy discuss the proposed changes. 

How does it affect you?

  • All users of the planning system, developers, councils, authorities and members of the public will need to come to grips with the role of new planning bodies – Planning Application Committees and the two differing types of referral authorities. 
  • Changes to the Section 173 Agreement provisions will need to be reflected in any new agreements entered into going forward to provide for changes such as the new means of ending agreements.
  • Any holders of permits issued at the direction of the Tribunal will now be able to apply to the relevant Council for amendment rather than returning to the Tribunal.

Replacing Development Assessment Committees

Section 5 of the Planning and Environment Amendment (General) Bill 2012 (the Bill) repeals the existing Part 4AA of the Planning & Environment Act 1987 (the P&E Act), which establishes Development Assessment Committees and a new body called the Planning Application Committee (PAC).

The primary function of the PAC is to act as an advisory body, both to the Minister and responsible authorities, on any matter relating to planning permit applications and is intended to provide a pool of specialist planning expertise as a resource for responsible authorities (often municipal councils).

A responsible authority may also refer any matter regarding planning permit applications to the PAC and, with Ministerial consent, delegate certain functions to it as well. The Minister may also delegate certain functions to the PAC.

The role of the PAC will be similar to, but expands upon, the current advisory committee role performed on an ad hoc basis by Planning Panel Victoria when appointed by the Minister.

Referral authorities

A core component of the P&E Act is the referral of planning permit applications to expert bodies for comment. The P&E Act currently enables a planning scheme to specify that a person or body is a referral authority for certain kinds of permit applications. A referral authority must be given a copy of such applications and may (within a prescribed time) object to, comment on, require the inclusion of conditions, or request further information regarding, the application. Where such bodies require conditions, responsible authorities must impose those conditions. Where a referral authority objects to the permit being granted, the permit must be refused.

The Bill splits the current concept of a referral authority into two distinct entities, being recommending referral authorities (RRA) and determining referral authorities (DRA). Their roles are explained as follows:

Recommending referral authorities

An RRA may comment on a permit application. The responsible authority must consider the comments, but is not obliged to refuse the application on the basis of these comments, or to include any conditions advised by the referral authority.

The responsible authority, however, must notify an RRA of its decision to either grant or refuse a permit.

An RRA has the power to apply to VCAT for a review of the responsible authority's decision if the permit is granted despite the objection of the RRA, or a condition recommended by the RRA is not included on the permit. In such circumstances, the responsible authority is prevented from issuing the permit until the application for review is determined by the tribunal or is withdrawn.

Determining referral authorities

A responsible authority must refuse to grant a permit if it is objected to by a DRA, and must include all conditions required by the DRA. This is the current status quo for all referral authorities.

The sting in the tail will be the amendments to the scheme that will be needed following the passing of the Bill, in order to identify those current referral authorities that are to be 'down graded' to the status of an RRA. It may be that the same body may be a RRA for some applications and a DRA for others. There has been no detail provided on which authorities will fall into which category and a planning scheme amendment will be required to facilitate this part of the Bill.

Referral authorities will need to review their processes accordingly once these changes are made.

Duties and responsibilities

The Bill also specifies certain duties that must be observed by all referral authorities, being:

  • to have regard to Victorian Government's planning objectives;
  • to have regard to directions of the Minister;
  • to comply with the P&E Act;
  • to comply with the planning scheme; and
  • to provide information and reports as required by the Minister.

Section 197 of the P&E Act is amended to extend to referral authorities the broad requirement to act as promptly as is reasonably practicable (which currently applies to responsible and planning authorities, municipal councils, panels and other public authorities).

Section 19 of the Bill introduces a new s56A, which obliges referral authorities to keep a free, publicly accessible register of all applications that contains all relevant information (as prescribed in the regulations) regarding each application.

Compensation

The new s94(2A) provides that a referral authority may be liable to pay compensation where a permit has been cancelled or amended because of a material mistake arising from an act or omission of the referral authority. This provision currently only applies to responsible authorities.

This change will likely have significant resource implications for referral authorities.

Information and notice requirements

A number of requirements have been introduced regarding the transfer of information between referral authorities, responsible authorities, applicants and objectors. These requirements are designed to alert relevant parties to issues with permit applications (or amended permit applications) earlier and more comprehensively, allowing those parties to address outstanding issues sooner. For example, a responsible authority when referring an application to a referral authority will be required to include information (as prescribed in the regulations) to assist the referral authority in understanding the reasoning behind the referral (amending s55(1) of the P&E Act).

Similarly, under a new s55(3), requests for more information to the responsible authority from the referral authority will also be sent to the applicant, so they may prepare that information in advance of the formal request from the responsible authority.

Importantly, a new s56(3A) requires a referral authority to give to the applicant a copy of any decisions and comments it has regarding the application (which is currently not expressly provided for under the P&E Act).

Planning scheme amendments

Under the current P&E Act, municipal councils can act as planning authorities for any planning scheme operating in that council's municipal district if authorised by the Minister. The new s8A is aimed at facilitating planning scheme amendments, by introducing a 10-day deadline for Ministerial authorisation to prepare and exhibit an amendment to a planning scheme. If the Minister has not notified the council of a decision on the proposed amendment within the required time, the council may prepare the amendment without authorisation.

Municipal councils, under a new s8B, may now also prepare planning amendments for an area adjoining its municipal district where authorised to do so by the Minister.

The new s20A establishes an additional process for the preparation and approval of amendments to planning schemes. Essentially, if the Minister decides to prepare an amendment falling within a certain class prescribed in the regulations, the public notice requirements of ss 17, 18 and 19 of the P&E Act do not apply.

The change is aimed at expediting minor and technical alterations to a planning scheme.

Section 173 agreements

Key changes are made to the s173 agreement provisions, including:

  • The removal of the requirement for Ministerial approval to end an agreement.
  • A new way (in the new ss 178A to 178I) in which an agreement may be ended or amended – no longer requiring agreement of all persons bound by the covenants. The process is now an application to the responsible authority addressing various matters that must be considered by it in making the decision. Notice must be given to any other parties to the agreement or those that may suffer material detriment. Objections may be made to the proposal and various notice periods must be observed before the agreement is ended or amended. The responsible authority may also, on its own initiative, propose to end or amend an agreement.
  • Section 181(1) is amended to make it mandatory for a responsible authority to apply to the registrar of titles to record an agreement relating to land, to ensure potential new owners are aware of the agreement and its conditions.
  • The new s182A provides that, on the subdivision of land subject to an agreement, each subsequent owner becomes a party to that agreement.
  • Sections 184(3) and (4) of the P&E Act are repealed and replaced with a new mechanism for review of decisions in relation to amending or ending an agreement. These sections allow a party to an agreement, an objector (or person entitled to object) or an applicant to end or amend an agreement to apply to VCAT for a review of the decision.

Proceedings before VCAT

A number of relatively minor changes have been made to the way in which VCAT is, or can become, involved in the permit process, including:

  • the ability for a responsible authority to amend a permit issued at the direction of VCAT (rather than needing to go back to VCAT under s87A to seek the amendment). VCAT can, however, expressly require (in permits it issues) that an amendment to the permit (or to certain conditions) must only be made upon further application to VCAT;
  • providing the President of VCAT with the ability to direct an applicant for review of the grant of a permit to publish notice of the application;
  • the repeal of s90(1)(d) of the P&E Act, which requires VCAT to give the Minister a reasonable opportunity to be heard at the hearing of an request to amend or cancel a permit; and
  • the ability for VCAT to confine its review to certain matters only if so agreed by the parties involved.

General amendments

A number of general amendments are made to the P&E Act, including:

  • introduction of mandatory consideration by a planning authority of the social and economic effects of a proposed amendment to a planning scheme (which is currently discretionary);
  • providing for an extension from three to six months after permit expiry in which an owner or occupier of land may request the responsible authority to extend the expiry date of the permit, and 12 months in which to apply for an extension to the permit completion date where the development, or stage of development, had started lawfully before expiry;
  • establishing that certain procedural requirements that apply to a panel appointed under Part 8 also apply to an advisory committee under Part 7 if the advisory committee conducts a hearing; and
  • the insertion of a new Division 1A into Part 8 of the P&E Act, which provides for the appointment of a 'directions panel' that may give directions under s159 regarding hearings conducted by a panel appointed under Division 1.

Amendments to the Subdivision Act

Amendments to the Subdivision Act 1988 are also proposed in relation to circumstances in which a council can require a person subdividing land to provide land or a payment for open space (currently set out in s18).

Section 18 is amended to apply only where the requirement for the public open space is not specified in the planning scheme. Where the requirement is specified in the planning scheme, the new s18A sets out the requirements for achieving compliance with a public open space requirement specified in a planning scheme, including timing of payments, the process of identifying the open space required and regulation of subsequent open space requests.

This amendment resolves some debate on this issue in recent tribunal and court cases.

Where to from here?

The Bill was introduced into the Legislative Assembly in 2012, received its second reading speech on 30 August 2012 and passed both Houses on 7 February 2013. It has not been amended since being introduced and is currently awaiting assent before coming into force in its current form on the date of proclamation. The impact on referral authorities will not be known until a further legislative amendment or a planning scheme amendment sets out which authorities fall into which of the two categories.


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