In brief

  • The Planning and Environment Amendment (General) Bill 2009 (Vic) proposes to introduce a dedicated process for the assessment and approval of projects of State significance.
  • Projects which are declared to be ‘State significant developments’ will not be able to commence until the Minister has given approval for the State significant development to proceed. Ministerial approval will be based on a pre-approved application, the outcome of stakeholder engagement, and the result of a planning panel hearing.
  • DPCD has indicated that the ‘State significant developments’ could include commercial or industrial projects involving major capital expenditure, renewable energy projects which exceed 30MW, and projects by or on behalf of the State which exceed $10 million.  

1 Introduction

The Planning and Environment Amendment (General) Bill 2009 (Vic) (P&E Amendment Bill) proposes a number of significant amendments to the planning and environment approvals regime in Victoria. One of the key features of the P&E Amendment Bill is a new planning assessment and approval process for projects which are declared to be ‘State significant developments’. This proposed process is outlined in this article.

The P&E Amendment Bill follows the release of several Planning Response Papers by the Department of Planning and Community Development (DPCD) in August 2009.1

The P&E Amendment Bill was released for public comment on 10 December 2009 and comments are due by 12 February 2010. A submission can be lodged with the DPCD by following the procedure outlined on DPCD’s webpage.2

2 Overview of the assessment process for State significant developments

There is currently no specific process for assessing projects of State significance in the Planning and Environment Act 1987 (Vic) (P&E Act).3 The P&E Amendment Bill proposes to introduce a dedicated legislative regime to assess and approve these projects4 which, according to the Commentary on the P&E Amendment Bill, will ‘ensure that the level of information, community engagement, assessment and review applied is proportionate to the significance of the development.’5

The proposed assessment framework is displayed in Figure 1, and outlined in more detail below.6  

3 Declaration of a project of State significance

Under the regime proposed by the P&E Amendment Bill, the Minister will be able to declare a use or development, or a class of use or development, to be a ‘State significant development’.8 Once a use or development is declared to be a State significant development, the use or development cannot legally commence until approved under the proposed State significant development assessment and approval procedure.9

Importantly, the P&E Amendment Bill proposes to give the Minister the power to exempt part of a State significant development from all or any of the requirements of the assessment and approval procedure.10 The Commentary suggests that this power is intended to enable the Minister to allow ‘preliminary works’ to be carried out,11 although the purposive aspect of the power referred to in the Commentary is not set out in the P&E Amendment Bill itself. In any event, if part of a State significant development is exempt from the proposed State significant developmen assessment and approval procedures, it will still be subject to the ‘normal’ requirements of the P&E Act and the relevant planning scheme.

4 What types of projects will be subject to the new process?

It is proposed that the Minister will issue guidelines or a direction outlining when the Minister will exercise the discretion to declare a proposed use or development to be a State significant development. Draft guidelines were proposed in DPCD’s Response Paper 4,12 and included:

  • developments for which an environmental effects statement is required
  • any industrial or commercial development within metropolitan Melbourne with a capital investment of greater than $100 million, or which is expected to create 100 or more full time equivalent jobs
  • any industrial or commercial development outside of metropolitan Melbourne with a capital investment of greater than $50 million, or which is expected to create 50 or more full time equivalent jobs
  • any development by or on behalf of the State government with a capital investment of $10 million or more, and
  • any use or development of land for the purpose of a wind energy, solar power or other renewable energy facility with a capacity of 30MW or more.

The process is not proposed to apply to major transport infrastructure assessed under the Major Transport Projects Facilitation Act 2009 (Vic) (MTPF Act), or other projects with specific approvals processes (such as mining developments, which are assessed under specific mining legislation).

5 Scoping the application

A proponent of a project which is declared to be a State significant development will need to apply to the Minister for approval of the project under the State significant development assessment and approval procedure. It is proposed that the application for approval will need to include:

  • an impact report, which outlines all relevant impact assessments,13 and
  • a community engagement strategy, tailored to the needs of the project.14

The Secretary of DPCD will conduct a preliminary assessment of the application, and must be satisfied that the application is in an appropriate form and addresses all matters required by the regulations and the Minister’s directions. The Commentary notes that this preliminary assessment is designed to ensure that prior to public consultation, the application is complete, includes all relevant information, and is up to an appropriate standard. Before approving the application, the Secretary may require the proponent to carry out consultation on the application, to ensure all issues are addressed.

Once the Secretary approves the application, the Minister will:

  • specify notice requirements for the project
  • set a timetable for project assessment (including setting a period for public consultation, and
  • assign a case manager to manage assessment of the project under the State significant development assessment and approval procedure.

6 Community and stakeholder engagement

The assessment of the proposed State significant development will then enter into a community and stakeholder engagement phase. During this phase:

  • the proponent must undertake consultation in accordance with the approved community engagement strategy and any Ministerial direction
  • the proponent must consult with any person or body specified by the Minister, and
  • any person can make a submission in relation to the proposed State significant development. All submissions will be publicly available, and the Minister may require the proponent to prepare a report responding to the issues raised in the public submissions.

There is very little detail about how these procedures will function in the P&E Amendment Bill. Experience of the community consultation plans and processes required by the Pipelines Act 2006 (Vic) may provide some precedent of how the proposed consultation requirements could operate, though under that Act the consultation plan must be approved before an application is made for the pipeline licence not—as appears to be the case under the P&E Amendment Bill—after the application has been scoped and approved. Fortunately though, the P&E Amendment Bill has wisely avoided prohibiting entry onto land before the consultation plan has been approved.

7 Panel review and assessment

After the closing date for submissions, the Minister will refer:

  • the application
  • any submissions received during the community and stakeholder engagement phase, and
  • any other matters specified by the Minister,

to an appointed planning panel. A planning panel will be established to consider each State significant development.

The planning panel will have an inquiry role and conduct public hearings to consider the application and any submissions received. The proponent of the proposed State significant development may be asked to contribute to the cost of running the planning panel.

The planning panel will be required to report its findings to the Minister, and make any recommendations it thinks fit.

8 Decision by the Minister

Once the planning panel’s report is received, the Minister will decide whether to approve the State significant development. In making this decision, the Minister must have regard to the objectives of planning in Victoria,15 the Victoria Planning Provisions, the panel’s report, and any significant environmental, social or economic effects of the project.16

If the Minister decides to approve all or part of the project, the Minister will advise the proponent that the Minister has decided to approve the use or development. The Minister will also advise whether the apprval will be implemented by:

  • amending the planning scheme to allow the State significant development to proceed
  • granting a permit for a purpose related to the State significant development, or
  • a combination of amending the planning scheme and granting a permit.

A Minister’s decision will not be subject to review by the Victorian Civil and Administrative Tribunal, and the Tribunal’s jurisdiction to entertain declaration applications under section 149B of the P&E Act will also be circumscribed.17

9 Statutory implementation

If the Minister amends a planning scheme to allow the State significant development to proceed, the standard planning scheme amendment requirements of exhibition, notice and referral to a panel will not apply to the planning scheme amendment.18

If the Minister grants a permit to allow the State significant development to proceed, the standard permit notice and referral requirements will not apply to the grant of the permit.19

The responsible authority under the planning scheme will be responsible for the administration and enforcement of the permit in most cases. However, the Minister will be responsible for the administration and enforcement of the permit if:

  • the Minister reserves this power in the grant of the permit
  • the proponent applies to amend the permit
  • there is a correction of the permit, or
  • the proponent applies to extend the expiration date of permit.20

10 What do I need to do?

The proposed process is intended to provide certainty to proponents, agencies and the community in relation to how large-scale developments will be assessed under the planning and environment approvals regime. However, there are some features of the process that require consideration—such as the exemption power, the absence of an obligation to publish the planning panel's report, the nature of public consultation that will be required (and how it differs to current industry practice), and the scope and extent of any economic and social assessments that will be needed as part of the assessment process.

Its interaction with other statutory approval processes could also be clarified. For example, under existing legislation a works approval application under the Environment Protection Act 1970 (Vic) that is exhibited with an EES or planning scheme amendment is exempt from the third party appeal rights to VCAT. This exemption would not appear to apply to the assessment of a State significant development under the proposed P&E Amendment Bill.

Further, the lack of statutory timeframes which apply to the various assessment stages of a State significant development is a notable exclusion from the proposed assessment procedure, especially in light of the rigid timeframes specified for transport projects assessed under the MTPF Act.

Submissions on the amendments proposed by the P&E Amendment Bill are due by 12 February 2010. Freehills can assist by:

  • helping you draft your submission to allow DPCD to be better informed about the implications of the P&E Amendment Bill, and
  • ensuring your business or organisation is ready to take advantage of the opportunities, and manage the risk, created by the amendments proposed by the P&E Amendment Bill.