Compliance with statutory obligations - planning authorities take note

Planning authorities would be wise to review their processes to ensure that they comply with their statutory obligations under the Planning and Environment Act 1987 (the Act), in light of VCAT's decision in Lend Lease Apartments (Armadale) Pty Ltd v Stonnington CC [2013] VCAT 1663 (Lend Lease 2),

As a consequence of finding that the Council had not met its statutory obligations under sections 29(1) and 31(1) of the Act, VCAT set aside the Council's decision to adopt an amendment to Council's planning scheme and remitted the amendment back to the Council to reconsider its decision, cautioning it about the need to comply with its obligations second time around.

The relevant obligations were enlivened because the Council sought to adopt a planning scheme amendment that departed from its exhibited form and from the planning panel's recommendations. They require that:

1. before adopting a planning scheme amendment, the planning authority first identify:
   1. any changes it has made to the exhibited amendment documentation as a result of its consideration of submissions and/or any planning panel recommendations
   2. the reasons for those changes [section 29 (1)]

and

2. following its adoption of a planning scheme amendment, the planning authority provides the Minister for Planning with the information prescribed under section 31 of the Act, including:
   1. full and proper reasons why panel recommendations have not been accepted
   2. a description of and reasons for changes made to the amendment before it was adopted (i.e. changes made to the exhibited amendment documentation) [section 31(1)].

While the obligations are clear enough, compliance can present something of a logistical challenge to a planning authority where, as in Lend Lease 2, a council chooses to depart from an officer’s recommendation. 

Lend Lease 2 concerned a proceeding brought by Lend Lease (the Company) in which it referred alleged defects in procedure relating to the processing of Amendment C153 to VCAT for its determination (the Amendment).

The Company referred the allegations to VCAT under section 39 of the Act. Section 39 provides that:

A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

The Company's allegations related to:

• the Council's consideration of submissions and the panel processes for Amendment C153
• the adoption of Amendment C153 and its referral to the Minister for approval.

The Amendment related to a large strategic development site owned by the Company. The exhibited Amendment included a DDO with a mandatory height limit of 17 metres and a maximum dwelling yield of 250 dwellings. The Council received a number of submissions about the Amendment and after considering these at a Council meeting on 13 August 2012, resolved to, relevantly:

• request the Minister for Planning to appoint a Panel to hear all submissions and consider the Amendment
• in its submission to the Panel, adopt a position of general support for the Amendment generally in accordance with the officer's response to the submissions contained in the report to Council and attachments including a maximum height limit of 8 storeys (24 metres) with no maximum density specified
• refer all submissions and any late submissions to the Panel.

Council's submissions to the Panel and the expert evidence it called supporting a 24 metre height limit with no density restriction was consistent with its resolution of 13 August 2013. The Panel subsequently released its report on 20 December 2013 recommending that Council apply a modified form of the DDO without any mandatory height limit.

In response to the Panel's recommendation, the Council officer prepared a report to Council generally supporting the Panel's recommendations except in relation to height in respect of which the officer recommended that the Council adopt a 24 metre height limit. At a Council meeting on 18 February 2013, Council resolved, contrary to the officer's recommendation, to most significantly:

• note the release of the Panel's report on the Amendment
• on considering the Panel's report, adopt the Amendment with changes including a mandatory height 17 metre (six storey) height limit and a maximum site yield of 250 dwellings.

Ultimately, VCAT found no technical failure to comply with the relevant provisions of the Act in respect of either the Council's consideration of submissions or the panel processes for the Amendment. It did find that in its capacity as the planning authority for the Amendment, Council failed to comply with:

• section 29(1) of the Act which required Council to properly identify the changes it made to the exhibited version of the Amendment before it adopted the Amendment
• section 31(1) of the Act which required Council to provide the Minister for Planning with the information prescribed under the Planning and Environment Regulations 2005 (the Regulations).

About section 29 VCAT said:

 …the discretion that a Council is called upon to exercise under section 29 of the P&E Act is a very important one within the planning scheme amendment process. If a planning authority chooses to adopt an amendment ‘with changes’, it should do so clearly and unambiguously. It must be clear what is being changed, and what the actual changes are. That is not the case here.

It further stated that submitters and the Minister deciding an amendment, are entitled to know exactly what is being adopted and how (if at all) an amendment has changed since exhibition.

In relation to section 31, VCAT found that certain prescribed information was missing from Council's package of information provided to the Minister. This included Council's reasons why the panel recommendations were not adopted and a description of any changes made to the Amendment before adoption together with the reasons for those changes. While the Council argued that the officer report had dealt with the panel recommendations, VCAT found the report did not adequately deal with the relevant changes.

As a consequence of its findings, VCAT ordered that the Council's decision to adopt the Amendment be set aside and that the Amendment be remitted back to Council 'to reconsider having regard to the orders and reasons for decision in this proceeding'.