Reform in motion: key changes to Victoria’s Planning & Environment Act take effect

The concept of ‘low impact amendments’ has been introduced via a new section 16N. While the specific details of the types of amendments that will qualify are yet to be published and the class will be as declared by the Minister, low impact amendments are likely to be fewer complex amendments, with relatively limited impacts. 

Under the new section 23A, Councils can prepare a ‘low impact amendment’ without Ministerial authorisation and adopt them without referring submissions to a panel. 

New sections 16A to 16E provide a formal process for individuals to request that a Council prepare a planning scheme amendment (for a fee). A Council must consider the request and either seek Ministerial authorisation to prepare the amendment or refuse the request. 

While there is no set timeframe on Councils to respond to a request for a planning scheme amendment, the Minister may direct a Council to make a decision within a specified time (not less than 6 weeks). 

If refused, the Council must provide written reasons, which are to be submitted to the Minister. There is no right to review a refusal, although an administrative law challenge may be possible.

A new section 16L enables the Minister to authorise other Ministers or public authorities to prepare amendments. The authorisation in this case may be issued subject to conditions including about the giving of notice.  This provision will enable bodies such as Melbourne Water to prepare amendments across multiple municipalities without needing to first get Council support. 

Under a new section 28A, if a Council abandons a planning scheme amendment, they must notify the Minister, who has the option to become the planning authority and continue the amendment. The Minister may also refer any submissions received to a panel under a new section 28D.

New sections 158C to158E give panels and advisory committees the discretion to treat multiple submissions as a single submission, and to nominate a ‘lead submitter’.  If a lead submitter is nominated, only they are given the opportunity to be heard. 

Under new section 158G, subject to a planning scheme amendment not raising major issues of policy, a planning panel has discretion to consider submissions on the basis of documents, without holding a hearing, provided submitters have the chance to comment on that proposed process. A panel may also propose to (and hold) a hearing about some matters and consider only written submissions about other matters. 

• Under new section 16H, a Council now has the power to prepare an amendment without authorisation from the Minister, if the Minister does not respond to an application for authorisation within 10 business days.
• Under amendments to section 23, planning authorities must not refer submissions to a planning panel which are frivolous, vexatious or irrelevant to the amendment proposed.
• Amended section 27 allows planning authorities to seek a Ministerial exemption from considering a panel report where the report has not been delivered within key timeframes – for example, six months from panel appointment or three months after the hearing.
• Under new section 159A, planning panels now have a formal power to direct expert conferences and require experts to produce joint reports. 

New sections 48A to 48D aim to improve the efficiency of processing permit applications. Within five days of receiving an incomplete application, a responsible authority may give notice to may notify the applicant and specify a timeframe (not less than five days) to rectify the issue. Once resolved, the application is deemed to be received. 

However, responsible authorities are not required to use this process, and the existing process for requesting more information from an applicant under section 54 of the Act remains. So whether or not greater efficiency is achieved through this change is uncertain.

Under amendments to section 52 and new section 52A, the Minister may issue guidelines about ‘material detriment to inform decisions about whether notice of permit applications must be given. Obviously, this guidance has not been released yet, but the details in that guidance will be key to informing the requirements for notice of permit applications and whether or not this will lead to more certainty and efficiency.

Under new sections 96UA and 96UB, the Minister may exempt a permit application from the metropolitan planning levy (MPL) where:

• the applicant has already paid the levy for the same land; and
• the revised development cost is no more than 10% higher than the original estimate specified in the levy certificate in respect of the previous permit application. 

Amendments to section 97E mean that when the Minister has ‘called in’ an application from a responsible authority, there is no longer an obligation for the Minister to refer objections or submissions to a panel, or to consider a panel’s report if it is not received within three months of the panel’s appointment, or one month of the date on which the panel completed the hearing. 

Amendments to section 68 update default expiry timeframes for permits (where not otherwise specified in a permit) to:

• 3 years for commencement of a development;
• 5 years for completion of a development; and
• 3 years from the commencement of a use.

These changes will apply to permits issued both before and after the Amendment Act comes into operation (so long as a permit has not expired on or before a date that the Amendment Act comes into operation).

Under new section 94A, VCAT now has broad powers to actively manage a proceeding if it considers it desirable in the interests of the just, timely and efficient determination of the proceeding.

Perhaps these powers and the procedural flexibility provided is not unlike what the Tribunal has now, but we note that the new section 94A is both detailed and prescriptive. The powers detailed include conducting a proceeding on the basis of documents and imposing time limits and prohibiting or limiting cross-examination. Additionally, presidential and legal members can confine a proceeding or summarily strike out or dismiss all or any part of a proceeding which they consider lacks substantive or objective merit and has no real prospect of success. 

Under new section 83AA, VCAT can now treat two or more objectors with similar concerns as a group and appoint one or more of those objectors as a representative of the group, with their consent. 

Under a new section 56B in the Victorian Civil and Administrative Tribunal Act 1988 (Vic), in reviewing proceedings under a planning enactment, if VCAT affirms or varies a decision, it can provide reasons in the form of a summary, rather than full written reasons.