The Victorian Government has released five response papers (Response Papers) in relation to its proposed reform of the Planning and Environment Act 1987 (Vic) (Act). The Response Papers propose reforms to address issues raised by public submissions to the discussion paper released earlier this year entitled Modernising Victoria’s Planning Act (Discussion Paper). Outlined below is a summary of the reforms proposed by each Response Paper.
It is anticipated that a draft Bill incorporating these proposals will be completed by November. Comments will be then be sought before the Bill is presented to Parliament.
Response Paper No. 1 – Objectives
Response Paper No. 1 addresses the continued relevance of the ‘objectives of planning in Victoria’ contained in section 4(1). The Response favours maintaining broad and durable objectives that can be adapted to future issues as they arise, over the introduction of more specific objectives. In particular, suggestions contained in some submissions that the objectives should specifically address issues of climate change, housing affordability, environmentally sustainable development, heritage and culture are rejected, as such issues are more appropriately addressed through Planning Schemes.
Nonetheless, the Response recognises that some updates to the current objectives are necessary. Proposed additions to the objectives include:
- securing a healthy environment for all Victorians, and
- promoting sustainable, high quality design for urban and built form.
Factors which require consideration
The Response also proposes to modify:
- sections 12(2)(b) and (c), the matters to be had regard to when preparing a planning scheme or amendment, and
- sections 60(1) and (1A), the matters which must be considered when granting a permit.
to require responsible authorities to consider all significant environmental, social and economic effects. Under the current formulation, it is only significant environmental effects which must be considered, while social and economic effects may be considered where appropriate.
Response Paper No. 2 – Planning Scheme amendment process
Response Paper No. 2 considers the Planning Scheme amendment process specified by the Act and seeks to increase the process’ efficiency, effectiveness and transparency.
Submissions recognised the high levels of inefficiency associated with the current single amendment process, which applies regardless of the type of amendment sought. Given that over one third of amendments approved in 2008 were for technical matters, the Response Paper proposes to introduce two ‘amendment tracks’ – a technical amendment track and a standard amendment track.
Technical amendment track proposal
Regulations would prescribe the types of amendments which could be classified as ‘technical amendments,’ but it would likely include corrections to anomalous provisions, removal of redundant provisions, modifications required to reflect the Planning Scheme policy intent, and VPP amendments.
The Act would be amended to exempt technical amendments from the usual exhibition and notice requirements contained in Part 3, Division 1 of the Act, and instead require an application to the Minister by any person for a technical amendment, preparation of the amendment by the Minister, consultation by the Minister with the relevant planning authority, and a decision by the Minister to approve or reject the amendment.
Reforms to the standard amendment process
A number of reforms to the current process are proposed in respect of standard amendment applications:
Allow any person to prepare an amendment
Any person, including a proponent, could be authorised by the Minister to prepare the amendment. The ‘authorised person’ would also be able to recommend that the planning authority support the amendment.
Require certification of the amendment, prior to exhibition
As poorly drafted amendments can be exhibited and mistakes or poor drafting subsequently discovered, this can result in inefficiency and require repetition of steps in the planning scheme amendment process. It is proposed to overcome this problem by amending the Act to require the amendment to be certified by the Secretary of the Department before it is exhibited.
Decision to be made by Minister, not planning authority
The Response Paper recognises the problems of uncertainty and inefficiency associated with allowing either the planning authority or Minister to make the decision. Consequently, it proposes to strip planning authorities of their power to abandon or adopt an amendment, only allowing them to recommend that the Minister approve or refuse the amendment.
Statutory timeframes are proposed for each stage of the planning scheme amendment process. For example, certification of an amendment is proposed to occur within 15 business days, a panel must report to a planning authority within four weeks (one-person panel), six weeks (two-person panel) or eight weeks (three-person panel), and the Department must complete the assessment to enable a decision on the amendment to be made within 30 business days of receiving the amendment and prescribed information.
Response Paper No. 3 – Planning permit process
Response Paper No. 3 considers the planning permit process and seeks to maximise efficiency in order to reduce the regulatory burden upon decision makers.
Permit assessment tracks As with planning scheme amendments, two assessment tracks are proposed depending upon the nature of the permit application.
Code assess track
A fast track process, the Code assess track, would be used for permit applications that could be assessed against clearly defined standards or criteria prescribed by a Planning Scheme. The Planning Scheme would specify the type of development which could be assessed using this method, but the Response Paper gives the example of industrial development – as matters such as setback, height, materials, landscaping and car parking may be assessed against specific standards. The advantages of this process are that:
- an authorised officer of the responsible authority would make the assessment and decide whether to grant or deny the permit within 14 days
- notice requirements would not apply, and
- public review would not be available, but the applicant could seek review by VCAT.
Similar processes are contained in some interstate planning jurisdictions such as Queensland.
Merit assess track
All other applications will be dealt with under the current process, the merit assess track, which involves the responsible authority issuing the permit.
A number of other reforms are proposed, including:
- allowing the permit applicant to request a deferral on a decision. This would allow the permit applicant to negotiate with the referral authority, without the time constraints which usually apply to a failure to grant the permit
- modification to the current notice requirements, including the introduction of a requirement to state the proposed use, development or other matter for which the permit is sought, and a re-wording of the notice requirement to provide that notice is to be given if the responsible authority considers that the grant of the permit may cause material detriment
- amendment of section 62(2)(a) to prohibit conditions that amend a permit. Instead, all amendments would require the approval of the responsible authority under section 72
- allowing the responsible authority to amend permits issued by VCAT, unless VCAT expressly states that the permit should not be amended in that way, and
- issuing of directions by the Minister to responsible authorities to use standard conditions where possible to increase certainty as to a particular condition’s meaning. To increase clarity regarding the expiry of conditions, the Minister should direct responsible authorities to classify conditions as either conditions which have an indefinite life, or conditions which apply only for the duration of the development.
Response Paper No. 4 – State significant major development
Response Paper No. 4 proposes to establish a state significant development assessment process within the existing Part 9A of the Act. The current provisions, which allow for compulsory acquisition and specify facilitative measures such as road closures, would be retained but added to.
The Response Paper proposes to adopt the Impact Assessment Track, contained in the Development Assessment Forum’s Leading Practice Model. Adopting that approach, projects with a ‘potentially significant impact’ would be assessed using the new method. Once a proposed development is declared a state significant major project, a proposal would be submitted to the Secretary of DPCD for input on:
- the required contents of an impact assessment report
- public information requirements
- public engagement strategy, and
- project assessment timeline.
After public consultation, an independent expert panel (established by the Minister) would assess the proposal and make recommendations to the Minister. The Minister would then decide whether the permit will be approved or refused. No appeals would be available in respect of the Minister’s decision.
Proposed state significant major developments
If utility or infrastructure provisions or industrial or commercial development
- in metropolitan Melbourne: capital investment of $100 million+, or expected to provide 100+ full time equivalent jobs
- outside metropolitan Melbourne: capital investment of $50 million+, or expected to provide 50+ full time equivalent jobs
- wind energy, solar power or other renewable energy facility >30MW
- tourism development with 120+ rooms
- nature-based tourism development: capital investment of $10 million+
- development in ports of Melbourne, Geelong, Hastings or Portland: capital investment of $40 million+, or
- development for boat harbour or marina: capital investment of $40 million+.
If any development
- if Minister requires an EES
- any development by / on behalf of state government: capital investment of $10 million +, or
- any development or area specified in Planning Scheme or by Minister to be a state significant major development or an area of state significant development.
The Victorian Competition and Efficiency Commission has recently completed its review of the EES process under the Environment Effects Act 1978 (Vic), and it is understood the Commission’s final report is presently being considered by the Victorian Government. An issue to watch will be how (or whether) the government’s response to this report dovetails with any reform of the EES process arising from the Commission’s review.
Response Paper No. 5 – Other modernisation initiatives
The final Response Paper deals with other opportunities for improvement of the Act. Key categories of reform include:
Section 173 Agreements
To minimise ‘red-tape’, the Response Paper suggests:
- removing the Minister’s involvement in lodging, ending and amending section 173 Agreements where the Minister is not a party to that Agreement
- mandatory registration of all section 173 Agreements
- provision for VCAT review, where there is a dispute about an Agreement, and
- if necessary, specifying that particular permit conditions to be ongoing. This will reduce reliance upon section 173 agreements.
Annual Planning Report
The Response Paper proposes to require the Minister, DPCD, planning authorities, responsible authorities and referral authorities to complete an annual planning report, reporting on their planning activities for the year. It is anticipated that this will ensure transparency and compliance with the Act.
The Response Paper also advocates the continued roll-out and development of technology for use in planning systems, for example, by local councils.