Introduction

On 22 July 2013, Stage 1 of amendments to the Victorian Planning and Environment Act will commence. In particular, parts of the Planning and Environment Amendment (General) Act 2013 (General Amendment Act) and the Planning and Environment Amendment (Growth Areas Authority and Miscellaneous) Act 2013 (GAA Act) will come into force.

This legal update provides a summary of the key changes to the Planning and Environment Act 1987 (P&E Act) as a result of Stage 1 of the General Amendment Act and the GAA Act.

These changes relate to:

  • the obligations and liabilities of referral authorities;
  • applications for extensions of time to commence or complete use or development under planning permits;
  • amendment of planning permits issued at the direction of the Tribunal;
  • directors’ liability;
  • the abolition of development assessment committees and the establishment of a planning application committee; and
  • the role of the Growth Areas Authority in non-Melbourne metropolitan areas.

Referral authorities

Stage 1 of the General Amendment Act will introduce:

  • specific duties for all referral authorities including a requirement to have regard to the objectives of planning in Victoria and to have regard to the Minister’s directions;
  • an obligation on all referral authorities to make a decision as promptly as is reasonably practicable; and
  • a liability on referral authorities to pay compensation to any person who has suffered loss if a permit has been cancelled or amended due to a material mistake of the referral authority.

Extensions of time limits in planning permits

A permit holder can request from a responsible authority an extension of time for commencement or completion of a use or development permitted by a planning permit. Stage 1 of the General Amendment Act will make important changes to the regime for applying for extensions of time limits in planning permits. 

Time limits for applying for extensions of time: The prescribed time to apply for an extension of time will increase from within 3 months after the expiry of a permit to:

  • before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; or
  • within 12 months after the permit expiry date, where the development has lawfully commenced prior to the expiry of the permit.

Applications to the Tribunal in relation to applications for extensions of time: An application to the Tribunal for review of a responsible authority’s decision to refuse an extension of time will only be allowed if the original request was made to the responsible authority within the time specified in the permit or the P&E Act. As a transitional measure, the Tribunal may continue to deal with applications which were made before 22 July 2013, even if the request to the responsible authority was made out of time.

Proceedings before the Tribunal

Stage 1 of the General Amendment Act will make changes to the P&E Act designed to improve efficiency and reduce delays in the Tribunal.

Permits issued by the Tribunal: Currently, only the Tribunal could amend a planning permit issued at the direction of the Tribunal. Stage 1 of the General Amendment Act will empower responsible authorities to amend permits which were issued at the direction of the Tribunal (unless the Tribunal specifically directs that the permit must not be amended by the responsible authority). The option for a permit holder to apply to the Tribunal for an amendment has not been removed.

Confining application for review: The Tribunal will be able to confine an application for review to particular matters or issues if all the parties agree.

Planning Application Committee

Stage 1 of the General Amendment Act will abolish the existing Development Assessment Committees and establish one independent committee appointed by the Minister called the Planning Application Committee (PAC).

The PAC is intended to work with responsible authorities across Victoria to deliver better and faster local planning decisions. The Minister or a responsible authority (with the consent of the Minister) can refer any permit application to the PAC for advice. The PAC can also carry out any functions delegated to it by the Minister.

Growth Areas Authority

The GAA Act will introduce new ministerial powers which enable the Minister for Planning to:

  • declare a growth area anywhere in Victoria (currently the Minister may only declare a growth area in the municipal district of one of the seven listed growth area councils);
  • request advice from the Growth Areas Authority (GAA) on any matter relating to land in Victoria or an objective of planning in Victoria; and
  • direct the GAA to provide advice to a municipal council on any matter relating to land in Victoria or an objective of planning in Victoria, if requested by that council.

Directors’ liability

The GAA Act will make changes to the criminal liability of officers of bodies corporate.

In accordance with the Personal Liability for Corporate Fault: Guidelines for applying the COAG Principles (COAG guidelines), the GAA Act will remove the existing blanket liability on directors. The GAA Act will instead introduce a new provision which provides that if a body corporate commits an offence against a specified provision, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

Further amendments to the P&E Act

Stage 2 of the General Amendment Act will commence on 28 October 2013 and includes reforms which require changes to the Planning and Environment Regulations 2005 or the Victoria Planning Provisions before they can become effective. The main amendments will include:

  • changes to the way section 173 agreements can be ended or amended;
  • introduction of two new processes designed to reduce delays and streamline planning scheme amendments; and
  • introduction of new categories of referral authorities.