Modernising Victoria’s planning legislation: Changes to the planning permit process

1  Introduction

The Planning and Environment Amendment (General) Bill 2009 (Vic) (P&E Amendment Bill) proposes a number of significant amendments to the planning and environment approvals regime in Victoria. The planning permit process has been identified as one of the key areas for reform. These proposed changes 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 2009.¹

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 webpage.²

2  Overview of the amendments proposed to the planning permit process

The P&E Amendment Bill³ proposes to amend the planning permit application and review process outlined in the Planning and Environment Act 1987 (Vic) (P&E Act) by:

• introducing a streamlined ‘code assess’ procedure for non-contentious planning permit applications
• clarifying the conditions that can be put on a planning permit
• reducing the scope for secondary consents under planning permit conditions
• amending the role of responsible authorities in the planning permit process, and
• amending the role of referral authorities in the planning permit process.

These proposed amendments are outlined in more detail below.

3  Introducing a ‘code assess’ procedure

The P&E Amendment Bill and accompanying Commentary⁴ propose a simplified assessment procedure for non-contentious, low impact classes of application. The proposed streamlined code assess procedure is outlined in Figure 1 below:

Figure 1: The proposed code assess procedure⁵

The code assess procedure will be used for permit applications which are ‘straightforward, consistent with policy, consistent with the zoning of the land, and have limited or no off-site impacts.’⁶ The classes of application that are code assessable will be specified in the Victoria Planning Provisions and planning schemes. DPCD’s proposal is that a simplified assessment procedure is justified for these types of applications because the scale, complexity or significance of the proposal does not justify a full merits assessment. It is estimated that approximately 20 per cent of the state’s planning permit applications (approximately 10,000 a year) will be assessed under the code assess procedure once it is fully established.⁷

Permit applications which are code assessable will be assessed against specified performance standards and objective assessment criteria, which will be outlined in planning schemes.⁸ An example of the sort of application that is proposed to be assessed under the code assess procedure is a small scale industrial development, which will be assessed against building setback, height, materials, landscaping, car parking and loading standards.⁹ Any new standards or criteria will be required to be introduced through the planning scheme amendment process.

The Chief Executive Officer of the municipal council responsible for administering the planning scheme is proposed to be the responsible authority for applications, and decisions will routinely be made by the Council’s authorised officers.¹⁰

An applicant will be able to apply to VCAT for review of a code assessable application if the responsible authority has not made a decision within 14 days.¹¹ An applicant may also seek a review of a decision to refuse its application, or against the conditions imposed as part of the permit. There will be a simple procedure established at VCAT to determine these sorts of applications, though there is no information about what that procedure will be or how it will be implemented.

Third party review of code assessable decisions will not be available.¹²

Very little detail about the ‘code assess’ procedure is contained in the P&E Amendment Bill itself. The P&E Amendment Bill proposes amendments to the P&E Act which will provide the legal framework within which planning schemes can prescribe the classes of use and development to which the code assess process will apply, and specify that the chief executive of the council will be the responsible authority for such applications. Most of the description of the proposed process is contained in the Commentary. The effect of this is that much of the detail about the code assess process, and how it will operate, is still to be developed.

4  Clarifying the conditions that can be inserted into planning permits

The Commentary accompanying the P&E Amendment Bill proposes to make the following clarifications to the types of conditions that can be included as part of a planning permit:

• conditions on planning permits will be grouped into those that are ‘finite’ and those that are ‘ongoing’¹³
• responsible and referral authorities will be required to ‘use standard conditions for specific matters in particular circumstances.’¹⁴ Authorities will be able to add to these conditions if necessary
• allowing a permit condition that requires the landowner to enter into an agreement to provide a bond or guarantee, which may be forfeited if there is a failure to comply with a permit condition,¹⁵ and
• revoking the power of responsible authorities to include a permit condition which allows plans, drawings or other documents approved under the permit to be amended to the satisfaction of a specified person.¹⁶ This is discussed in more detail below.

5  Reducing the scope for secondary consents under planning permit conditions

Under existing law, responsible authorities have the power to impose conditions which enable them to grant informal or ‘secondary’ consents to plans which vary from the plans endorsed under the permit. The validity of such conditions has been upheld, provided the variation satisfies the ‘Westpoint’ criteria, being:

• it does not result in a transformation of the proposal;
• it does not authorise something for which primary consent is required under the planning scheme;
• it is of no consequence having regard to the purpose of the planning control under which the permit was granted; and
• it is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent. ¹⁷

The P&E Amendment Bill proposes to remove this condition-making power. This means that a permit condition will no longer allow a specified person to approve minor amendments to the planning permit that was originally granted.¹⁸

Instead, it is proposed that all amendments to a permit (including amendments to plans, drawings or other documents approved under the permit) follow either the standard permit amendment procedure outlined in Division 1A of Part 4 of the P&E Act, or be amended by VCAT under section 87 of the P&E Act. The standard permit amendment procedure generally requires a proposed amendment to follow the same procedure required for a permit application (such as notice, referral, assessment and review).¹⁹

The Commentary notes that the benefits of this proposal are that permit amendments will follow a structured decision-making process, and that all amendments will be recorded on the permit and on the responsible authority’s permit register.²⁰ The Commentary also notes that ‘a responsible authority should undertake this process in a time efficient manner that is proportionate to the scale and complexity of the amendment. There should be no difference whether the decision would have been dealt with as a secondary consent decision or a Division 1A decision as now proposed.’²¹

The proposed reduction in scope of secondary consent permit conditions may have a number of impacts. From a permit applicant’s perspective, it may have the effect of imposing greater discipline on permit applicants to ‘bed down’ the design and configuration of their development before they submit their permit applications. This will be necessary to limit the potential for a subsequent application to amend the permit to be subject to the public scrutiny and appeal rights contained in the standard permit amendment process in Division 1A. Conversely—and perhaps more likely—this amendment is likely to increase the workload of responsible authorities and, presumably, VCAT through processing a higher volume of amendment applications.

Most importantly, this prohibition on issuing a secondary consent to change an endorsed document under a permit is proposed to be given retrospective effect.²² In other words, a responsible authority will be unable to grant a secondary consent to change an endorsed plan or document under a permit that pre-dates the commencement of the P&E Amendment Bill, even if the permit allows it. This change could have very significant implications for approved, but undeveloped, projects.

6  Amending the role of the responsible authority

The P&E Amendment Bill proposes to make the following amendments to the role of a responsible authority during the permit assessment and approval process:

• requiring a responsible authority to have regard to the Minister’s directions, which may include directions in relation to the administration of planning schemes²³
• requiring a responsible authority to consider, and balance, significant social and economic effects (along with any significant environmental effects) when assessing a permit application²⁴ 
• requiring a responsible authority to provide certain information when referring a permit application to a referral authority (such as detail about why a permit is required, and the relevant provisions of the planning scheme that apply to the application),²⁵ and 
• allowing responsible authorities to amend permits that are issued by VCAT, except where VCAT has specified that the permit (or part of a permit) must not be amended by the responsible authority.²⁶

7  Amending the role of the referral authority

The P&E Amendment Bill proposes to make the following amendments to the role of a referral authority during the in the permit assessment and approval process:

• clarifying that the duties of a referral authority include complying with the P&E Act, having regard to the objectives of planning in Victoria, having regard to any Ministerial directions, having regard to the relevant planning scheme, and providing information and reports as required by regulations²⁷
• requiring referral authorities to act as promptly as is reasonably practicable when carrying out their responsibilities under the P&E Act (including when making a decision and forming an opinion)²⁸
• requiring referral authorities to provide the applicant with a copy of any information requests which are made by the referral authority, and a copy of the referral authority’s final response, at the same time as lodging these with the responsible authority²⁹
• requiring referral authorities to maintain a register of all referrals. Among other things, the register will record the referral authority’s performance against statutory timeframes for the performance of their duties³⁰ 
• requiring referral authorities to report annually to the Minister on the operation and performance of their referral function under the P&E Act, and advise of any change that should be made to improve the referral system³¹, and 
• making referral authorities liable for compensation if a permit is amended or cancelled as a result of a material mistake made by the referral authority when recommending whether to approve a permit application (currently the responsible authority is liable for a material mistake of the referral authority).

8  What do I need to do?

The removal of the secondary consent procedure is likely to have important implications for developers, especially developers of large and spatially diverse projects, and increase the workloads of local government. Some of the other reforms outlined in this article appear to be timely and sensible amendments, although there is little detail on how some of the proposals will operate in practice—this is especially so in respect of ‘code assess’ applications. The Queensland planning system has a ‘code assess’ process which has a long and established track record and which may provide a guide as to how the Victorian proposal may operate in practice.

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.

This article was written by Tim Power, Partner and Josh Dellios, Solicitor, Melbourne.

Endnotes

1. For more detail on these, read our Response Paper Update.
2. DPCD webpage
3. Along with associated amendments to regulations, planning schemes and directions. Note that proposed amendments to regulations and planning schemes have not been publicly released as yet.
4. Department of Planning and Community Development, Commentary on draft Planning and Environment Amendment (General) Bill 2009 (Commentary). 
5. Commentary, p 36.
6. The Commentary notes that classes of applications will be determined in consultation with local government, p 37.
7. Department of Planning and Community Development, Response Paper No.3 The permit process (Response Paper 3), p 8. 
8. Section 6(2) P&E Act (which outlines what a planning scheme can provide for) will be amended to allow the Victorian Planning Provisions and planning schemes to exempt all of some of the decision-making considerations set out in section 60 (which outlines what matters a responsible authority must consider before deciding a permit application) and section 84B(2) (which outlines what matters VCAT must consider before deciding an application for review).
9. This example is given in Response Paper 3, p 4.
10. Proposed section 188(1)(ba) and 188(1A) P&E Act. Planning schemes will be amended – presumably by varying the Schedule to Clause 61.01 of planning schemes – to specify the Chief Executive Officer as the responsible authority for code assess applications.
11. Regulations will be amended to include this requirement. 
12. The reason for this is because code assessment is only against pre-determined criteria. 
13. Regulations will be amended to include this requirement. 
14. Commentary, p 39. These requirements will be introduced through Ministerial direction. 
15. This will remove the need for section 173 agreements to be entered into to secure a bond or guarantee. 
16. A specified person may include a responsible authority, a Minister, a public authority, a municipal council or a referral authority.
17. Westpoint Corporation Pty Ltd v Moreland City Council [2005] VCAT 1049. See also this decisions key antecedents: 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637 and Mentone Mansions Pty Ltd v Kingston City Council [2000] VCAT 1947 and the more recent decisions of Begonia v Frankston City Council [2007] VCAT 1721, APAC Design & Construction v Whitehorse City Council [2006] VCAT 101 and Zuzek v Borondoora City Council [2007] VCAT 2174 
18. An example of a secondary consent permit condition is: ‘The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority’ (Yarra Ranges Shire Council, February 2009). 
19. See in general Part 4, Division 1A of the P&E Act, and in particular section 73. It should be noted that a permit condition will still be able to specify that the consent of a specified person is required, however the consent cannot result in a change of the permit (including any plan, drawing or document approved under the permit). 
20. Commentary, p39. 
21. Commentary, p 40.
22. Proposed section 219.
23. Proposed section 14(2) P&E Act. 
24. Proposed amendments to section 60 P&E Act. 
25. Proposed amendment to section 55(1) P&E Act. The required information will be prescribed in regulations.
26. Proposed section 72(2)(a) and section 85(1A) P&E Act.
27. Proposed section 14A P&E Act.
28. Proposed amendment to section 197 P&E Act.
29. Proposed sections 55(3), 56(3A) and 57C(3) P&E Act.
30. Proposed section 56A. 
31. Proposed section 12(1)(f) and 14A(e) P&E Act.

More information

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