Changes to the planning scheme amendment process

In brief

  • Proposed reforms to the planning scheme amendment process in Victoria could have significant implications for developers of property, infrastructure and energy projects, local and state governments, advisers, and town planners
  • The reforms include the ‘semi-privatisation’ of the amendment process, streamlining non-contentious amendments, early certification of amendments by DPCD, and repealing a planning authority’s power to abandon an amendment.  

1 Introduction

The Planning and Environment Amendment (General) Bill 2009 (P&E Amendment Bill) proposes a number of significant amendments to the planning and environment approvals regime in Victoria.

Over the course of the next month, Freehills will publish a series of articles which outline each of the major amendments proposed in the P&E Amendment Bill, and provide insight into how these amendments may affect developers of property, infrastructure and energy projects, local and state governments, advisers, and town planners.

The articles will cover the following broad topics:

  • amendments to the planning scheme amendment process (this article)
  • projects of state significance
  • amendments to the planning permit process
  • improvements to section 173 agreements, and
  • other changes proposed by the P&E Amendment Bill.

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 (for more detail on these, read our Response Paper Update).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 the DPCD’s webpage.2

2 Overview of proposed changes to the planning scheme amendment process

The P&E Amendment Bill proposes to (among other things):

  1. allow a proponent to prepare a planning scheme amendment and undertake certain steps in the assessment process
  2. introduce a streamlined process for non-contentious planning scheme amendments
  3. require all amendments to be certified early in the process
  4. require submissions received during exhibition to outline reasons
  5. introduce a directions panel, and
  6. require the Minister to make the decision on whether to approve a planning scheme amendment, on recommendation of the planning authority.

These proposed changes are generally directed towards making the process more efficient, effective and easier to use, and are discussed in more detail below.

2.1 Allowing a proponent to prepare a planning scheme amendment

The P&E Amendment Bill proposes to allow the Minister (upon request from a proponent and after the consultation with the relevant municipal council) to authorise a proponent to do any of the following:

  • prepare a planning scheme amendment (other than an amendment to a state standard provision)
  • prepare an explanatory report
  • submit the planning scheme amendment to the Secretary of the Department (Secretary) for certification (see section 2.3 below for more detail on this requirement)
  • give notice of, and exhibit, the planning scheme amendment
  • assess submissions made in relation to the planning scheme amendment and refer submissions it does not agree with to a panel
  • consider the panel report in relation to the proposed amendment and decide whether to change the amendment in response to the panel report, and
  • submit the planning scheme amendment to the planning authority, with a recommendation about whether the amendment should be approved.

In undertaking these tasks, the proponent (who will be known as an ‘authorised person’) will be subject to all of the controls that would apply to a planning authority if they were preparing the amendment. The Minister’s authorisation may be subject to conditions and can be withdrawn by the Minister at any time.

Once the planning authority receives the proposed planning scheme amendment from the authorised person, it must decide whether to recommend to the Minister that the amendment be approved. If the Minister approves the amendment, a notice of approval will be published in the Government Gazette and the amendment will then be laid before Parliament (following the normal process under section 38 of the Planning and Environment Act 1987 (P&E Act)).

This significant and somewhat controversial proposal aims to ‘semi-privatise’ what has been traditionally regarded as a government responsibility, though it also preserves the Minister’s ultimate authority over whether an amendment should be approved, and the amendment process itself. These measures are clearly aimed at addressing perceived shortcomings in local government’s capacity to quickly support the preparation and exhibition of amendments. While it is understood these proposals are supported by elements of the development industry, what will be interesting to see is how enthusiastically industry takes up the opportunity to ‘push ahead’ with their amendments and the government’s willingness to use these powers.

2.2 Introducing a streamlined process for non-contentious planning scheme amendments

The P&E Amendment Bill proposes a streamlined assessment process for various non-contentious (ie non-merit based) planning scheme amendments. These include amendments that:

  • remove a redundant provision (such as when an environmental audit overlay is no longer required over an area of remediated land)
  • make a minor technical change or a correction
  • introduce an interim amendment (such as an interim provision or interim overlay while the substantive amendment is being considered under the standard amendment process), and
  • give effect to an amendment that has already been adequately assessed through another process (such as through the state significant development process).

Under this streamlined process (to be known as the ‘section 20A amendment’ process), the Minister will be responsible for preparing the planning scheme amendment (along with an explanatory report), and will act either on request or on the Minister’s own initiative. The Minister may undertake a targeted consultation process, however the standard exhibition, notice, submission and panel requirements in the P&E Act will not apply.

If the Minister approves the amendment, a notice regarding the approval of the amendment will be published in the Victorian Government Gazette, and the amendment will be laid before Parliament, following the standard section 38 P&E Act process. The section 20A amendment process is illustrated in Figure 1 here.  

This streamlined section 20A procedure is expected to make the planning amendment process more efficient (DPCD estimates that approximately 36% of the amendments approved in 2008 were for technical matters). DPCD expects these amendments to create an incentive for local councils to keep planning schemes up to date and pursue technical amendments where required.

2.3 Requiring all amendments to be certified and bringing the certification requirement forward

The P&E Amendment Bill proposes to require the Secretary, prior to exhibition of the amendment, to certify that all amendments are in an appropriate form (currently Secretarial certification is only required for amendments where a planning authority is authorised to approve the amendment, and after the planning authority has adopted the amendment).

The commentary on the P&E Amendment Bill notes that this will help to make sure that planning scheme amendments are not delayed due to substandard preparation (resulting in later amendments being required or a possible procedural challenge).

It is frustrating that this type of process is considered necessary by the government. Given the standardised ‘toolkit’ of planning controls contained in the Victoria Planning Provisions (VPP), the ample guidance on how to prepare amendments in the Ministerial Direction (17 September 2009) and the amendment-related Practice and Advisory Notes published by the DPCD, ensuring a proposed amendment to a planning scheme conforms to the VPP should not be a difficult task. The frustration with these changes is amplified by the fact that there is limited information on the extent or magnitude of the ‘problem’ that needs to be ‘fixed’ by these changes.

The certification of all amendments will inevitably create delays in the amendment process in the short-term, though it is to be hoped that it will improve the efficiency of the amendment process in the long-term by addressing the shortcomings in planning scheme amendments before they are exhibited. However, the ‘case’ for these changes has not been persuasive to date.

2.4 Submissions to outline reasons

The P&E Amendment Bill proposes to require that all submissions state the reasons for the submission. This requirement is designed to ensure that only relevant submissions are made, and consequently disregard irrelevant or vexatious submissions which slow down the overall process.

2.5 Introducing a directions panel

The P&E Amendment Bill proposes to require a directions panel for every amendment placed on exhibition. A directions panel will be required where a submission is not agreed by either the planning authority or the authorised person (where the authorised person is preparing the amendment). The purpose of the directions panel is to:

  • make arrangements for the panel hearing
  • confirm changes made to the amendment in response to submissions, and
  • confirm the withdrawal of any submission.

These directions will be in addition to any directions given by the planning panel.

The date for the directions panel will be set by the Secretary when the planning scheme amendment is certified (ie prior to the exhibition of the planning scheme amendment) and will be outlined in the exhibition notice. The directions panel may be constituted by any person other than a person who will be on the planning panel.

2.6 Requiring an amendment to be approved or refused by the Minister on recommendation of the planning authority

The P&E Amendment Bill proposes to remove the power of a planning authority to approve an amendment with or without changes or abandon the amendment. Instead, a planning authority will be able to recommend that the Minister approve an amendment with or without changes, or refuse the amendment.

The final decision will continue to be made by the Minister on all planning scheme amendments, but there will be no opportunity for a planning authority to deprive the Minister of the opportunity to determine the merits of an amendment by abandoning it.

3 What do I need to do?

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 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.