In brief

  • The Planning and Environment Amendment (General) Bill 2009 (Vic) (P&E Amendment Bill) proposes to introduce changes to various aspects of the Planning and Environment Act 1987 (Cth) (P&E Act).
  • The operation of section 173 agreements will be changed by removing the Minister’s role in ending and varying agreements, and creating a new procedure under which a landowner can apply for an amendment to a section 173 agreement. The procedure includes notice and rights of review to VCAT.
  • A monitoring and reporting framework will be introduced for Victoria’s planning system, and the amendments will also allow resourcing of e-Planning initiatives.  

1 Introduction

The P&E Amendment Bill proposes a number of significant amendments to the planning and environment approvals regime in Victoria. The proposed amendments seek to modernise the operation of planning processes under the P&E Act and the proposed amendments are outlined in this article.

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 DPCD’s website.2

2 Section 173 agreements

Section 173 agreements are often made by responsible authorities with landowners to set out conditions or restrictions on the use or development of land, or to seek to achieve other planning objectives in relation to the land.

The P&E Amendment Bill proposes changes to the operation of section 173 agreements, the key ones being:

  • removing the Minister for Planning’s involvement in ending and amending agreements.3 The responsible authority will no longer be required to lodge a copy of agreements with the Minister4
  • requiring responsible authorities to register all section 173 agreements on property titles, ensuring that the obligations of the agreement will bind future owners5
  • if land to which a section 173 agreement applies is subdivided, each of the new landowners will be party to the one agreement with the responsible authority and original parties to the agreement,6 and
  • that ‘Specified persons’ under the P&E Act, which includes the Minister or responsible authority, may apply to VCAT to interpret agreements under proposed changes to the power of VCAT to make declarations.7

However, the most significant change relates to the mechanisms to end or vary a section 173 agreement. The P&E Amendment Bill proposes that agreements can be ended or varied either by agreement or by using a new statutory process. The new process is represented below.  

As can be seen, the key features of this process are:

  • a responsible authority or a landowner will be able initiate the ending or amendment of an agreement where the approval of all persons bound by the agreement cannot be obtained
  • the proposal must be notified to other parties to the agreement and to any other person the responsible authority believes could be ‘materially affected’ by the proposal. Any of these parties can object to the proposal
  • in deciding whether or not to amend or end a section 173 agreement, the responsible authority has to have regard to certain matters such as the purpose of the agreement and of an amendment, whether there are changed circumstances which necessitate the amendment of an agreement, and whether the ending or amendment of an agreement would disadvantage anyone (regardless of whether or not they are a party to the agreement).8
  • applicants will have a right to apply to VCAT if the responsible authority refuses, or fails to give notice of the application to amend or end an agreement, or fails to make a decision within three months.9 Objectors will also have a right to appeal against a decision to amend or end an agreement, and
  • the costs of notices, preparing the amendment and registration can be required of the applicant.10

3 Bonds and guarantees

The Commentary notes that some responsible authorities have considered section 173 agreements as the only mechanism to seek a bond to secure compliance with a planning scheme.

The P&E Amendment Bill proposes that a bond or guarantee can be secured by an agreement required by permit condition, instead of section 173 agreements. It is also proposed to clarify that the Minister can require a bond or guarantee from another party to an agreement.11

4 Government monitoring and reporting

The P&E Amendment Bill proposes to introduce a requirement for the Minister, DPCD, planning authorities and referral authorities to prepare an annual report on their planning activities.12 The aim of this monitoring and reporting is to provide consistency in reporting across the State for continuous improvement to statutory processes.

The reporting requirements are proposed to be included in yet-to-be developed regulations.

5 e-Planning and review of planning and subdivision fees

The P&E Amendment Bill proposes to provide for regulations to prescribe new fee arrangements for the upkeep of electronic operating systems used by councils, state and local government (eg planning and subdivision applications online such as SPEAR, planning scheme and maps online, and planning permit applications online).

Given the new processes, responsibilities and performance accountabilities proposed by the P&E Amendment Bill, it is also proposed that new planning and subdivision fees will be imposed.

The review of the planning and subdivisions fees will be extended for 12 months to integrate the new fees required by the P&E Amendment Bill.

6 What do I need to do?

The proposed amendments to the process for ending and varying section 173 agreement is an important feature of the P&E Amendment Bill, and owners of properties subject to these agreements should consider the Bill’s implications for their arrangements.

The new monitoring and reporting requirements, while perhaps a desirable change, will increase the workloads of government agencies which will need to be addressed by the fees review. This is especially true for referral authorities, whose workload is proposed to be significantly increased by the P&E Amendment Bill overall.

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 P&E Amendment 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.