The change in Victorian Government last November has led to the introduction of a wide variety of reforms in planning and environment law in Victoria. This article provides a snap-shot of the key reforms which will unfold in Victoria in the coming months.
Infrastructure contributions reform
On 11 June 2015, the Planning and Environment Amendment (Infrastructure Contributions) Bill 2015 (Bill) was introduced into the Victorian Parliament. The Bill introduces a new tool for collecting development levies and the infrastructure contributions plan (ICP). The ICP will be prepared by a planning authority in consultation with relevant stakeholders. It will provide the strategic justification for the application and allocation of the development contributions levy to a specific precinct or site.
An ICP can impose a standard levy or, in limited circumstances a supplementary levy. A standard levy is the uniform monetary contribution to infrastructure that meets 'basic and essential' community needs and will be set for residential, retail and commercial/industrial developments. A supplementary levy is a variable monetary contribution for an exceptional infrastructure item (such a new drainage scheme, State road or public transport infrastructure and large scale public improvement works) that cannot be funded by the standard levy or is required to unlock growth in a specific location.
The Department of Environment, Land, Water and Planning will work with an Implementation Reference Group representing peak industry groups and councils to finalise the details of the new system, such as the levy rates, indexation mechanisms and application criteria, before it commences in early 2016.
Once introduced, ICPs will not replace Development Contribution Plans (DCP), and will only apply initially in growth areas and strategic sites where there is no existing DCP. If you are considering such a site, you should be aware that an ICP may ultimately be introduced to the planning scheme and apply. In theory, it should then clarify the amount of contributions and types of infrastructure to be funded.
Objector numbers are now a relevant consideration in planning applications
On 11 August 2015, assent was given to new legislation amending the Planning and Environment Act 1987 so that the number of objections to a planning permit application is now a relevant consideration for decision makers. Specifically, a responsible authority or the Tribunal are required to (where appropriate) have regard to the number of objectors in considering whether a use or development may have a significant social effect.
The number of objectors alone will not establish that there is a significant social effect, however, the number of objectors may be indicative of the scale of a social effect on the community, the presence of a specific social need in the community that may be affected, or the social significance of a site to the community.
This reform will likely encourage the use of petitions and large-scale pro forma submissions as a means of influencing planning decisions, primarily in cases involving controversial uses such as high density development, uses with potential adverse amenity and uses with perceived social effects such as gaming and licences premises.
Review of Local Government Act 1989 – ongoing consultation
On 11 August 2015, the Government announced a wide ranging review of the Local Government Act. It is the first comprehensive review of the Act in over 20 years and while it has broad terms of reference, the Government’s emphasis in announcing the review is on greater community engagement and accountability.
An Advisory Committee has been appointed and will run consultation from August to December 2015, though the details of that consultation program are not yet known.
The Committee’s terms of reference are to consider all aspects of the Act. However, it will not consider changes to the existing external boundaries of Victorian municipalities, or consider the Planning and Environment Act (or other Acts which impose responsibilities on councils but which are not the responsibility of the Minister for Local Government).
Review of the Heritage Act 1995 – opportunity for submissions until 30 August 2015
In June, the Government released a discussion paper as part of the review of the Heritage Act. The review seeks to put a higher level of protection on places and objects of State significance, and also simplify processes. It is likely that penalties for unauthorised works will increase as a result of the review, and there may also be changes to the fee structure for approvals.
Heritage Victoria has identified the following changes:
- streamlining heritage listings and reforming the nomination process;
- introducing State significant heritage precincts and cultural landscapes;
- ensuring view of local government are considered on heritage permit decisions;
- clarifying issues arising from registered places in multiple ownership; and
- increasing penalties for unauthorised works.
Depending on the outcome of the review, we may see new large scale heritage areas being listed as ‘State significant’ under the Act which will have consequences for the matters considered in any development. Any proposed heritage area would need to be nominated and go through a public consultation.
Review of VicRoads’ Traffic Noise Reduction Policy
VicRoads is undertaking a review of its Traffic Noise Reduction Policy (Policy). The current Policy aims to reduce noise emitted by vehicles and roads surfaces and to limit traffic noise from new and updated freeways and arterial roads.
Under the Policy, VicRoads will provide acoustic attenuation to dwellings adjacent to new freeways and arterial roads built on new alignments, and to houses which are exposed to noise due to the removal of buildings as a result of a freeway or arterial road being widened by two or more lanes. In all other circumstances, residential developments constructed adjacent to a freeways or arterial roads after the construction of a VicRoads freeway or arterial road, must be attenuated to VicRoads’ standards at the cost of the developer. Attenuation will typically involve the construction of a noise wall which is required to meet VicRoads’ standards for a period of 10 years after finalisation of the development.
VicRoads accepted submissions from relevant stakeholders earlier in the year and input from the community consultation will inform the development of a discussion paper which will be the basis of a second round of consultation in the second half of 2015.
Apartments Discussion Paper – new design standards expected following review
On 15 May 2015, the Victorian Government its ‘Better Apartments: Discussion Paper.’ The Paper discusses the need for Victorian Apartment Design Standards in the context of a growing Melbourne population with a declining standard of apartment amenity, and also lists the major issues affecting apartment amenity in the State and how a set of standards could be implemented to improve them.
The Paper discusses several possible methods of implementing apartment standards including:
- Regulatory based: mandated minimum standards within planning schemes;
- Performance based: objectives, standards and decision guidelines (for variation to standards), a ‘ResCode’ for apartments;
- Policy based: revised Guidelines for Higher Density Residential Development document or similar guide to good practice with some standards and best practice; and
- Market based: an apartment buyers’ or consumers’ guide and a publication defining good design.
Submissions on the Discussion Paper have closed and stakeholder consultation will now take place - with the aim of preparing implementation options towards the end of 2015. New design standards and a greater regulation of apartment buildings is expected to follow.
Environmental Upgrade Agreements available across Victoria
On 19 June 2015, the Victorian Government introduced legislation to make Environmental Upgrade Agreements available in all Victorian Councils (where they had only been in the City of Melbourne in the past).
An Environmental Upgrade Agreement is a tripartite contract between a non-residential building owner, a local council, and a lender, which facilitates a building upgrade to improve energy efficiency. Under the agreement, the lender advances funds to the building owner to finance approved environmental upgrades, then the Council levies a charge to recover the funds and repay the lending body.
The use of the rates system means that environmental upgrade charges are a charge on the land, taking priority over all other mortgages, charges on, or interests in the land. This increased security enables the lender to offer more competitive loan terms, such as fixed interest rates over 10 years or longer. This reduces the re-financing risk and allows building owners to plan with more certainty. Longer finance terms also mean lower annual repayments, delivering immediate cash flow benefits to the owner.
We do not expect that Councils will be overwhelmed with demand for these agreements, as there have only been 7 in the City of Melbourne since 2011 (representing approximately $12 million in capital expenditure).
Wide ranging inquiry into EPA Victoria – submissions open until 31 October
On 20 May 2015, the Victorian Government announced that a major public inquiry will be conducted into the Environment Protection Authority (EPA). A three person ministerial advisory committee (MAC) has been established to conduct the Inquiry. The MAC will provide a written report to the Minister by 31 March 2016. The Minister will then publicly release the report and a response to its findings and recommendations on behalf of the Victorian Government in mid-2016.
The terms of reference for the Inquiry are summarised below:
- the EPA’s appropriate role in relation to public health issues;
- the community’s and industry’s expectations of the EPA;
- the EPA’s appropriate role in protecting the environment;
- the ability of EPA to ensure the principle of environmental justice is adhered to;
- the ability of the EPA’s current governance structures and funding arrangements to enable it to effectively and efficiently discharge its powers, perform its duties and implement its required functions; and
- the scope and adequacy of the EPA’s statutory powers, and the effectiveness and efficiency of the suite of tools available to and utilised by the EPA, particularly in light of recent, new and emerging risks and issues.
A Discussion Paper was released on 18 August setting out the EPA’s current roles, and raising a number of issues to consider including the importance of land use planning and whether the EPA should have greater role in emergency management.
Public consultation events are being held across Victoria during September and October, and submissions can be made until 31 October 2015.
In the meantime, the increased scrutiny of the EPA has already resulted in a greater focus on compliance and enforcement which is likely to continue. The inquiry will also likely lead to recommendations for reform to the EPA’s operations and amendments to, or a complete review of, the Environment Protection Act 1970. Given the Government’s election commitment to community right to know legislation, it would not be surprising if mandatory pollution incident and contamination reporting were recommend for inclusion in the Act and other measures to increase transparency and community access to environmental information.