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An Introduction to Victoria’s Planning System

Introduction

Planning is a complex area and planning decisions often attract significant public attention. The purpose of this paper is to provide an overview of the planning system and its statutory instruments for Members of Parliament. It is intended to be an easy-to-understand reference guide to the planning system in Victoria and aims to enhance Members' abilities to engage in debates about planning issues.

This paper presents the key elements of the planning system in Victoria, including: the planning instruments that regulate planning decisions, procedures for planning scheme amendments, section 173 agreements and planning permit applications, the role of key participants in the planning system, including opportunities for public participation, and recent legislative changes to the Planning and Environment Act.

Chapter one sets out the key planning instruments in Victoria, including the Planning and Environment Act and its regulations, the Victoria Planning Provisions, Ministerial Directions and planning schemes.

Chapter two outlines the key components of a planning scheme, and sets out the procedures relating to planning scheme amendments.

Chapter three provides an overview of the planning permit process, including notice and exhibition procedures, and opportunities for review. It concludes with a case study on the permit application process for a McDonalds Restaurant in Tecoma.

Chapter four sets out the range of enforcement mechanisms available under the Planning and Environment Act.

Chapter five presents a summary of the roles of key participants in the planning system in Victoria, including: the Parliament of Victoria, the Minister for Planning, the Department of Planning and Community Development, local councils, public authorities, planning panels, VCAT and the Supreme Court.

Chapter six presents a summary of the opportunities for public participation in the planning system, primarily in the planning scheme amendment process and the planning permit process.

Chapter seven provides a brief overview of section 173 agreements.

Chapter eight outlines recent legislative amendments to the Planning and Environment Act and current planning system reforms.

While this paper provides an introduction to the key elements of the planning system, it is not intended to be a comprehensive guide to every aspect of the planning system. It does, however, aim to provide Members with a basic knowledge of the planning system, and where to seek further information.

Chapter One

An Introduction to Planning Instruments

This chapter introduces and briefly summarises the following key planning instruments that regulate planning decisions in Victoria:

§ Planning and Environment Act 1987 (Vic);

§ Planning and Environment Regulations 2005 (Vic);

§ Ministerial Directions;

§ Victoria Planning Provisions; and

§ Planning schemes.

The Planning and Environment Act and the Planning and Environment Regulations establish the legal framework for the planning system.

Ministerial Directions and the Victoria Planning Provisions are made by the Minister for Planning under the Planning and Environment Act. They ensure that the construction and content of planning schemes is consistent across Victoria.

A planning scheme is a statutory document that sets out the planning rules in each municipality. A planning scheme is constructed using the Victoria Planning Provisions as a template. Planning schemes contain both policies and planning controls. Policies are used to inform and guide planning decisions. Planning controls include zones, overlays, and particular provisions. They generally provide for any permit requirements and prohibitions on land use and development.

Figure 1 provides an illustration of these instruments. Each instrument is detailed further below.


Planning and Environment Act 1987 (Vic)

- Primarily 'enabling' legislation.

- Sets out legal framework for the planning system.

- Provides for the preparation of Victoria Planning Provisions and planning schemes.

Planning and Environment Regulations 2005 (Vic)

- Made under s 202 of the Act.

- Prescribes, for example, timeframes, notice periods, content of forms.

Figure 1: Victorian Planning Instruments

Victoria Planning Provisions

- Made under s 4A of the Planning and Environment Act.

- State-wide template used to construct planning schemes.

- Includes mandatory provisions.

Applies to all planning schemes

Planning Schemes

- The Planning and Environment Act provides for the preparation of planning schemes in ss 6-7.

- Planning schemes must include: state standard provisions (i.e. state policy, zones, overlays, particular provisions and general provisions), which must be selected from the Victoria Planning Provisions; and local provisions (i.e. a municipal strategic statement and local policies).

Overlays

(clause 40 →)

- i.e. heritage, design & development, environmental significance.

Particular Provisions

(clause 50 →)

- i.e. car-parking, signage.

Planning controls in all planning schemes

Local Planning Policy Framework (clauses 20-22)

(i.e. Municipal Strategic Statement)

State Planning Policy Framework (clauses 10-19)

* State standard provisions prevail over local provisions if inconsistency:

s 7(4)(b)(i)

General provisions

(clause 60 →)

- i.e. existing use rights, ancillary land use, referral authorities.

Zones

(clause 30 →)

- i.e. residential, business, rural, industrial, farming.

Ministerial Directions

- Made under s 7(5) of the Planning and Environment Act.

- Minister may issue a direction as to the form and content of planning schemes.

- Planning authorities must comply with Ministerial Directions.


Relevant statute

Planning and development in Victoria is primarily regulated under the Planning and Environment Act and the Planning and Environment Regulations. This section will outline these key statutory instruments.

Planning and Environment Act 1987 (Vic)

- Primarily 'enabling' legislation.

- Sets out legal framework for the planning system.

- Provides for the preparation of Victoria Planning Provisions and planning schemes.

Planning and Environment Regulations 2005 (Vic)

- Made under s 202 of the Act.

- Prescribes, for example, timeframes, notice periods, content of forms.


Planning and Environment Act 1987 (Vic)

The Planning and Environment Act establishes the legal framework for the use, development and protection of land in Victoria.[footnote 1]

The Act sets out the objectives of planning in Victoria, and provides for the preparation and structure of the Victoria Planning Provisions and planning schemes. It also establishes procedures for:

§ amending planning schemes;

§ obtaining planning permits under planning schemes;

§ settling disputes;

§ enforcing compliance;

§ collecting development contributions;

§ compensating for land required for public purposes;

§ appointing planning panels and advisory committees;

§ opportunities for review to the Victorian Civil and Administrative Tribunal;

§ state significant projects; and

§ other administrative procedures.[footnote 2]

The Act also provides for Regulations to be made, which are outlined below.

Planning and Environment Regulations

Under section 202 of the Planning and Environment Act, regulations may be made with respect to:

§ prescribing any manner or form of giving notice of a planning scheme amendment or permit application;

§ prescribing the time within which applications to VCAT may be made;

§ prescribing regions for the purposes of the Planning and Environment Act;

§ prescribing forms for the purposes of the Planning and Environment Act;

§ prescribing information to be included in any application, notice or permit;

§ matters relating to the administration of growth areas infrastructure contributions, including record keeping and access to information;

§ prescribing any fees payable (i.e. for considering applications or amendments); and

§ any other matter required to be prescribed in order to carry out the Act.[footnote 3]

The Planning and Environment Regulations 2005 prescribe 'the requirements for the operation of the Planning and Environment Act', including: the manner and form for giving notice of applications or amendments, times for making decisions on permit applications or for making an application to VCAT, and information that must be included in applications, notices, permits and requests.[footnote 4]

The Planning and Environment (Fees) Interim Regulations 2012 sets out the fees that may be charged by planning and responsible authorities, including fees for considering planning scheme amendments and permit applications.[footnote 5]

Other planning instruments

The Planning and Environment Act provides for the preparation of Ministerial Directions, Victoria Planning Provisions and planning schemes. Planning schemes must be constructed using the Victoria Planning Provisions as a template, and in accordance with any Ministerial Directions. A brief description of Ministerial Directions, the Victoria Planning Provisions and planning schemes is provided below.

Ministerial Directions

- Made under s 7(5) of the Planning and Environment Act.

- Minister may issue a direction as to the form and content of planning schemes.

- Planning authorities must comply with Ministerial Directions.

Planning Schemes

- The Planning and Environment Act provides for the preparation of planning schemes in ss 6-7.

- Planning schemes must include: state standard provisions (i.e. state policy, zones, overlays, particular provisions and general provisions), which must be selected from the Victoria Planning Provisions; and local provisions (i.e. a municipal strategic statement and local policies).

-

Victoria Planning Provisions

- Made under 4A of the Planning and Environment Act.

- State-wide template used to construct planning schemes.

- Includes mandatory provisions.


Ministerial Directions

Section 7(5) of the Planning and Environment Act provides that the Minister for Planning may issue Ministerial Directions 'as to the form and content of any planning scheme'. Planning authorities must comply with Ministerial Directions.[footnote 6] The Act also provides that planning authorities must have regard to Ministerial Directions when preparing a planning scheme amendment.[footnote 7]

In addition, the Minister may issue written directions to planning authorities in relation to the preparation and content of development contributions plans.[footnote 8]

Current Ministerial Directions include:[footnote 9]

§ Ministerial Direction - The Form and Content of Planning Schemes;

§ Direction No. 1 Potentially Contaminated Land;

§ Direction No. 9 Metropolitan Strategy;

§ Direction No. 11 Strategic Assessment of Amendments;

§ Direction No. 12 Urban Growth Areas;

§ Direction No. 13 Managing Coastal Hazards and the Coastal Impacts of Climate Change;

§ Direction No. 14 Port Environs;

§ Development Contributions Plans;

§ Development Contributions Plans – Exemptions for non-government schools.

Victoria Planning Provisions

The Victoria Planning Provisions is a set of standard, state-wide planning provisions prepared by the Minister for Planning under s 4A of the Planning and Environment Act. It is a statutory device that ensures provisions in planning schemes are consistent across Victoria and that the construction and layout of every planning scheme is the same.[footnote 10]

The Victoria Planning Provisions contains the following provisions that are mandatory in every planning scheme:

§ the State Planning Policy Framework;

§ 'particular provisions' relating to specified categories of use and development (i.e. car-parking, advertising signs);

§ 'general provisions' (i.e. existing use rights and ancillary land use);

§ definitions; and

§ incorporated documents (i.e. Codes of Practice).

The Victoria Planning Provisions also sets out a range of state-standard zones and overlays that may be applied to land within a planning scheme. Local councils select the zones and overlays from the Victoria Planning Provisions needed to implement their local policies. Councils only have to select the zones or overlays that are required in their local area. For example, the City of Melbourne does not require a rural zone. Councils must only select zones and overlays from the Victoria Planning Provisions (i.e. council's cannot create their own zones and overlays).[footnote 11]

An amendment to the Victoria Planning Provisions may be prepared at any time by the Minister for Planning.[footnote 12] The Minister may also authorise any other Minister, public authority or municipal council to prepare an amendment to the Victoria Planning Provisions.[footnote 13] The Minister may approve an amendment to the Victoria Planning Provisions with or without changes and subject to any conditions the Minister wishes to impose, or refuse to approve the amendment.[footnote 14] Once the Minister approves an amendment to the Victoria Planning Provisions, notice of the approval must be published in the Government Gazette.[footnote 15]

Provisions in the Planning and Environment Act relating to notification, consideration of submissions and panel hearings apply to a Victoria Planning Provisions amendment as if it was a planning scheme amendment (see Chapter 2 for information on the planning scheme amendment process).[footnote 16]

The layout of the Victoria Planning Provisions is illustrated below in Figure 2.


Figure 2: A snapshot of the Victoria Planning Provisions


Source: Department of Planning and Community Development (2012)[footnote 17]

Planning schemes

A planning scheme is a statutory document prepared and approved under the Planning and Environment Act.[footnote 18] Every municipality in Victoria has a planning scheme. A planning scheme sets out the objectives, policies and planning controls for the use, development and protection of land in each local government area.[footnote 19]

Every planning scheme in Victoria can be accessed electronically from Planning Schemes Online,[footnote 20]where they can be downloaded in PDF format. Planning Schemes Online is updated weekly to reflect amendments to planning schemes.[footnote 21]

A planning scheme is constructed using the Victoria Planning Provisions as a template, with the addition of local policies and schedules, and appropriate zones and overlays selected from the Victoria Planning Provisions.[footnote 22]

Planning controls

Zones, overlays, particular provisions and general provisions are enforceable planning controls that are contained in every planning scheme.

Zones

(clause 30 →)

- i.e. residential, business, rural, industrial, farming.

Particular Provisions

(clause 50 →)

- i.e. car-parking, signage.

General provisions

(clause 60 →)

- i.e. existing use rights, ancillary land use, referral authorities.

Overlays

(clause 40 →)

- i.e. heritage, design & development, environmental significance.


Particular provisions and general provisions (as set out in the Victoria Planning Provisions) are the same in all planning schemes, and cannot be changed by a local council. Local content can, however, be provided for in schedules.[footnote 23] Zones and overlays (selected from the Victoria Planning Provisions) are inserted into a planning scheme by the local council as appropriate in order to implement its local policies.

These planning controls indicate whether or not a permit is required: [footnote 24]

§ for a land use;

§ for a subdivision;

§ to construct a building; or

§ to carry out works.

Planning controls are explained in further detail in Chapter 2.

Planning policies

All planning schemes contain two policy sections: the State Planning Policy Framework (prepared by the Minister for Planning) and the Local Planning Policy Framework (prepared by the local council).[footnote 25]

State Planning Policy Framework (clauses 10-19)

Local Planning Policy Framework (clauses 20-22)

(i.e. Municipal Strategic Statement)


Together, the State Planning Policy Framework and the Local Planning Policy Framework provide 'the basis of the planning scheme and inform all planning decisions'.[footnote 26]

It should be noted that the Planning and Environment Act states that if there is an inconsistency between different provisions of a planning scheme, a 'specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme'.[footnote 27]

The State Planning Policy Framework and Local Planning Policy Framework are explained in further detail in Chapter 2.


Chapter Two

Planning Schemes

This chapter describes the key components of a planning scheme, and outlines the procedure for amending a planning scheme.

What is a planning scheme?

A planning scheme is a statutory document that sets out the planning rules for the use and development of land in each local government area.[footnote 28] Every Victorian municipality has a planning scheme, which is administered and enforced by the 'responsible authority' (usually the local council).[footnote 29] A planning scheme is binding on all members of the public, Victorian Ministers, government departments, public authorities and local councils.[footnote 30]

The structure of a planning scheme is outlined in section 7 of the Planning and Environment Act, which states that a planning scheme must include:

§ state standard provisions (selected from the Victoria Planning Provisions);[footnote 31] and

§ local provisions (which must include a municipal strategic statement).[footnote 32]

The Act provides that a planning scheme may make provisions relating to the use, development, protection or conservation of land in the local area.[footnote 33] A planning scheme may, for example:

§ set out policies and objectives;

§ regulate or prohibit the use or development of any land;

§ designate land as being reserved for public purposes;

§ require specified things to be done or specified information to be provided;

§ apply, adopt or incorporate any document which relates to the use, development or protection of land (i.e. Development Plans, Structure Plans, Strategies); and

§ set out classes of land, use or development that may be exempted from certain provisions in the Act.[footnote 34]

All planning schemes have the same basic format, which is based on the Victoria Planning Provisions. Planning schemes are composed of clauses. A planning scheme is generally set out as follows:

Section


Clause

State or local content

Objectives of planning in Victoria

Purposes of the planning scheme

Contents page

User guide

State Planning Policy Framework

10

Fixed state content

Local Planning Policy Framework

20

Local content

Zones

30

Fixed state content with schedules that can contain local content

Overlays

40

Fixed state content with schedules that can contain local content

Particular Provisions

50

Fixed state content with schedules that can contain local content

General Provisions

60

Fixed state content with schedules that can contain local content

Definitions

70

Fixed state content

Incorporated Documents

80

Fixed state content with schedules that can contain local content

List of Amendments to the scheme

Adapted from: Department of Planning and Community Development (2007)[footnote 35]

Key:

§ Wholly fixed state content (prepared by the Minister, as set out in the Victoria Planning Provisions)

§ Wholly local content (prepared by the relevant local council)

§ Fixed state content with schedules that can contain local content


Figure 3 provides an illustration of the key components of a planning scheme.

Figure 3: Components of a planning scheme


Source: Department of Planning and Community Development (2007)[footnote 36]

Key components of a planning scheme

This section will outline the following key components of a planning scheme:

§ State Planning Policy Framework;

§ Local Planning Policy Framework;

§ Zones;

§ Overlays;

§ Particular Provisions; and

§ General Provisions.

Planning schemes also contain a table of incorporated documents (such as Codes of Practice). These are set out in the Victoria Planning Provisions and are thus the same in every planning scheme. A schedule to the planning scheme may, however, contain local incorporated documents (such as local coastal strategies, development guidelines or restructure plans). Incorporating documents into the planning scheme will give those documents more weight than a document that is not incorporated. For instance:

If a document is incorporated into a planning scheme, its content or strategic basis is less likely to be capable of challenge when using it to make a planning decision. The decision-maker or VCAT is entitled to presume that the strategic basis for the document was considered at the time of its incorporation into the planning scheme and to give it due weight.[footnote 37]

State Planning Policy Framework

Every planning scheme must include the State Planning Policy Framework, which is set out in the Victoria Planning Provisions (clauses 10-19). The State Planning Policy Framework contains the 'long term directions and outcomes sought' by the planning scheme, which are implemented through the zone and overlay requirements and particular provisions.[footnote 38] The purpose of State policy in planning schemes is to:

inform planning authorities and responsible authorities of those aspects of State planning policy which they are to take into account and give effect to in planning and administering their respective areas. The State Planning Policy Framework provides a context for spatial planning and decision making by planning and responsible authorities.[footnote 39]

The State Planning Policy Framework comprises nine specific policies relating to the following areas: [footnote 40]

§ settlement;

§ environmental and landscape values;[footnote 41]

§ environmental risks;

§ natural resource management;

§ built environment and heritage;

§ housing;

§ economic development;

§ transport; and

§ infrastructure.

Each policy includes a policy objective, strategies that outline how the objective can be achieved, and policy guidelines. Policy guidelines provide the planning authority with guidance as to specific frameworks, strategies or legislation that should be considered. For example, policy guidelines include state government planning strategies.[footnote 42] It should be noted that a new 'Metropolitan Planning Strategy' is currently being developed for Melbourne.[footnote 43]

A local council cannot amend a state policy. Furthermore, if a proposed planning scheme amendment is inconsistent with state policy, 'the Minister for Planning will not authorise the council to prepare that amendment'.[footnote 44]

Case Study 1 provides an example of the state bushfire policy, which is contained in the Environmental Risks policy in clause 13 of the Victoria Planning Provisions and each planning scheme. The Environmental Risks policy also covers climate change impacts, floodplains, soil degradation, and noise and air (see clauses 13.01-13.04).


Case Study 1: Environmental Risks State Policy – Bushfire (clause 13.05)

13.05 Bushfire

13.05-1 Bushfire planning strategies and principles

Objective

To assist to strengthen community resilience to bushfire.

Strategies

Overarching strategies

Prioritise the protection of human life over other policy considerations in planning and decision-making in areas at risk from bushfire.

Where appropriate, apply the precautionary principle to planning and decision-making when assessing the risk to life, property and community infrastructure from bushfire.

Bushfire hazard identification and risk assessment strategies

Apply the best available science to identify vegetation, topographic and climatic conditions that create a bushfire hazard.

Assess the risk to life, property and community infrastructure from bushfire at a regional, municipal and local scale.

Identify in planning schemes areas where the bushfire hazard requires that:

· Consideration needs to be given to the location, design and construction of new development and the implementation of bushfire protection measures.

· Development should not proceed unless the risk to life and property from bushfire can be reduced to an acceptable level.

Strategic and settlement planning strategies

Ensure that strategic and settlement planning assists with strengthening community resilience to bushfire.

Consult with the relevant fire authority early in the strategic and settlement plan making process and implement appropriate bushfire protection measures.

Ensure that planning to create or expand a settlement in an area at risk from bushfire:

· Addresses the risk at both the local and broader context.

· Reduces the risk to future residents, property and community infrastructure from bushfire to an acceptable level.

· Ensures any biodiversity and environmental objectives specified in the planning scheme are compatible with planned bushfire protection measures.

· Ensures the risk to existing residents, property and community infrastructure from bushfire will not increase as a result of future land use and development.

· Ensures future residents can readily implement and manage bushfire protection measures within their own properties.

Planning scheme implementation strategies

Specify in planning schemes the requirements and standards for assessing whether the risk to a proposed development from bushfire is acceptable and the conditions under which new development may be permitted.


Ensure that planning schemes, in particular the Municipal Strategic Statement, Local Planning Policies and zones applying to land, provide for use and development of land in a manner compatible with the risk from bushfire.

Ensure that planning schemes support bushfire management and prevention and emergency services actions and activities.

Ensure that planning schemes do not prevent the creation of required defendable space around existing development through the removal and management of vegetation.

Development control strategies

In areas identified in the planning scheme as being affected by the bushfire hazard, require a site-based assessment to be undertaken to identify appropriate bushfire protection measures for development that has the potential to put people, property or community infrastructure at risk from bushfire.

Only permit new development where:

· The risk to human life, property and community infrastructure from bushfire can be reduced to an acceptable level.

· Bushfire protection measures, including the siting, design and construction of buildings, vegetation management, water supply and access and egress can be readily implemented and managed within the property.

· The risk to existing residents, property and community infrastructure from bushfire is not increased.

When assessing a planning permit application for a single dwelling in an established urban or township residential area, consider the need for a localised response to the bushfire risk and consider any relevant existing or planned State or local bushfire management and prevention actions that may affect the level of on-site response needed.

Policy guidelines

Planning must consider as relevant:

· Any relevant approved State, regional and municipal fire prevention plan.

· AS 3959-2009 Construction of Buildings in Bushfire-prone Areas (Standards Australia, 2009).

· Building in bushfire-prone areas - CSIRO & Standards Australia (SAA HB36-1993, May 1993).


Source: Victoria Planning Provisions, clause 13.05.

Local Planning Policy Framework

The Local Planning Policy Framework (contained in clauses 20-22 of each planning scheme) includes the Municipal Strategic Statement as well as specific local planning policies that apply to the area covered by the planning scheme.

It should be noted that if there is an inconsistency between state and local provisions, and the inconsistency cannot be resolved, the 'State standard provisions prevail over the local provisions'.[footnote 45]

Figures 4 and 5 provide examples of the content of Local Planning Policy Frameworks (including both the Municipal Strategic Statement and local planning policies) in the Glen Eira Planning Scheme and the Macedon Ranges Planning Scheme.

Figure 4: Example of the Local Planning Policy Framework in the Glen Eira Planning Scheme


Source: Glen Eira City Council (2013)[footnote 46]

Figure 5: Example of the Local Planning Policy Framework in the Macedon Ranges Planning Scheme


Source: Macedon Ranges Shire Council (2012)[footnote 47]

The Municipal Strategic Statement

Section 12A of the Planning and Environment Act provides that a local council must prepare a Municipal Strategic Statement for its municipal district. The Municipal Strategic Statement is generally found in clause 21 of the planning scheme.

Forming part of the Local Planning Policy Framework, the Municipal Strategic Statement is a 'statement of the key strategic planning, land use and development objectives for the municipality and the strategies and actions for achieving the objectives'.[footnote 48] It also provides the strategic basis for the selection and application of the zones, overlays and particular provisions in the planning scheme.[footnote 49]

Section 12A(2) of the Planning and Environment Act provides that a Municipal Strategic Statement 'must further the objectives of planning in Victoria to the extent that they are applicable in the municipal district'. Subsection (3) provides that the Municipal Strategic Statement must contain strategic objectives, strategies for achieving those objectives, and a 'general explanation of the relationship between those objectives and strategies and the controls on the use and development of land in the planning scheme'.[footnote 50]

Local councils must take the Municipal Strategic Statement into account when preparing planning scheme amendments and making decisions about permit applications.[footnote 51]

The Municipal Strategic Statement must be reviewed at least once every four years.[footnote 52] It must also be consistent with the current Council Plan approved under section 125 of the Local Government Act 1989.[footnote 53]

Local planning policies

Local planning policies are tools used to implement the objectives and strategies contained in the Municipal Strategic Statement.[footnote 54] Local planning policies are generally found in clause 22 of the planning scheme.

A local planning policy is a 'policy statement of intent or expectation'.[footnote 55] Such policies give the responsible authority 'an opportunity to state its view of a planning issue and its intentions for an area'.[footnote 56] Local planning policies thus help the community to 'understand how the responsible authority will consider a proposal'.[footnote 57]

Some examples of local planning policies include policies relating to: heritage, neighbourhood character, tree conservation, highway development, stormwater management, outdoor advertising, wildlife management and student accommodation.[footnote 58] Local policies may also relate to specific local activity areas or precincts.

Local councils must take the local planning policies into account when preparing planning scheme amendments and making decisions about permit applications.[footnote 59]


Case Study 2 provides an example of Cardinia Shire Council's local policy on Highway Development.

Case Study 2: Highway Development – Local Policy, Cardinia Planning Scheme

22.04 HIGHWAY DEVELOPMENT

This policy applies to the use and development of land along the Princes Freeway, Princes Highway, South Gippsland Highway and Bass Highway. For the purposes of this policy, these routes are referred to as "highways". This policy assists in the implementation of the objectives and strategies in the Municipal Strategic Statement in relation to the road network.

22.04-1 Policy basis

Highways are major State and regional transport routes which carry a large volume oftraffic including freight and tourist traffic. Highways pass through both urban and ruralareas in the municipality. Development along highways needs to be carefully managed toensure that the efficient and safe movement of traffic along the highways is maintained, andthat the visual amenity of the highways is maintained and enhanced.

22.04-2 Objectives

· To ensure the safe and efficient movement of traffic along highways in the municipality.

· To provide for facilities to meet the needs of people travelling along highways.

· To protect the rural outlook and visual amenity of highways in rural areas, and the visual amenity of highways in urban areas.

· To ensure a high standard of design associated with developments along highways.

22.04-3 Policy

It is policy that:

· Developments to service the needs of people travelling along highways be in a limited number of strategically located service nodes.

· The uses provided in highway service nodes not conflict with the role of commercial facilities provided in existing townships.

· Consideration be given to the establishment of major tourism developments along highways at strategic locations.

· Developments which do not require a highway frontage be encouraged to locate in appropriate alternative locations such as industrial areas or business areas in existing townships.

· Before deciding on an application to use or develop land along a highway, the responsible authority consider:

o the objectives and principles of the "Freeway Service Centres Design Guidelines, May 1997".

o the advice of the Roads Corporation.

o the maintenance of the safe and efficient movement of traffic along the highway.

o the impact of the development on the outlook and visual amenity of the highway.


Source: Cardinia Shire Council (2012)[footnote 60]

Zones

Each local council selects appropriate zones for its planning scheme from the Victoria Planning Provisions, in order to implement the State Planning Policy Framework and its Local Planning Policy Framework.[footnote 61] Zones categorise particular areas of land for specific uses, such as residential, business, industrial, rural, public or special purpose. The zone selected for an area by the council may 'reflect existing patterns of land use or the new strategic land use direction for an area'.[footnote 62] For example, a regional council could encourage new employment opportunities by re-zoning rural land to an industrial zone.[footnote 63] The zones provided for in the Victoria Planning Provisions include:[footnote 64]

Residential Zones:

Business Zones:

Residential 1

Business 1

Residential 2

Business 2

Low Density Residential

Business 3

Mixed Use

Business 4

Township

Business 5

Residential 3

Industrial Zones:

Public Land Zones:

Industrial 1

Public Use

Industrial 2

Public Park and Recreation

Industrial 3

Public Conservation and Resource

Road


Rural Zones:

Special Purpose Zones:

Environmental Rural

Special Use

Rural Living

Comprehensive Development

Green Wedge

Urban Floodway

Green Wedge A

Capital City

Rural Conservation

Docklands

Farming

Priority Development

Rural Activity

Urban Growth

Activity Centre

Local councils cannot vary the zones, nor introduce a local zone; they must only be selected from the Victoria Planning Provisions. Local variation, however, may be achieved by use of the schedules to the zones, which can be used by council to reflect local circumstances.[footnote 65] For example, a local council may include a minimum street set-back, building height, front fence height, site coverage, etc, in a schedule to a residential zone.[footnote 66]

Figures 6 and 7 illustrate the range of zones chosen by Bayside City Council and Buloke Shire Council, included in their planning schemes.

Figure 6: Example of the zones in the Bayside City Council Planning Scheme

Source: Bayside City Council (2012)[footnote 67]

Figure 7: Example of the zones in the Buloke Shire Council Planning Scheme


Source: Buloke Shire Council (2012)[footnote 68]

Zones control the use and development of land.[footnote 69] Each zone will specify whether a permit is required in that zone for:

§ a particular land use[footnote 70];

§ a subdivision;

§ to construct a building or carry out works.[footnote 71]

Each zone contains a list of land uses that are identified as either:

§ section one use: permit not required;

§ section two use: permit required (usually permit conditions will also be specified);

§ section three use: prohibited.

The Residential 1 Zone will be used as an example to illustrate:[footnote 72]

§ Land use: A 'dwelling' is a section one use (i.e. the land may be used for a dwelling without the need for a permit).[footnote 73] A 'retail premise' is a section three use, and is therefore prohibited.

§ Subdivision: A permit is required to subdivide land.

§ Building and works: A permit is required to construct a 'dwelling':

§ on a lot of less than 300 square metres,[footnote 74]

§ if there is already at least one dwelling on the lot, or

§ to construct two or more dwellings.


Overlays

Overlays impose additional permit requirements on certain areas of land, further to any zone provisions.[footnote 75] They apply to subdivisions, buildings and works (but not land use). Overlay provisions are generally found in clauses 41-45 of the planning scheme, and primarily address environmental and built-form matters, such as heritage.[footnote 76]

The Victoria Planning Provisions provides a set of standard overlays for a local council to select from and apply to particular areas of land in the municipality. Overlays generally apply to a local area with particular environment or heritage significance or management issue. An area of land may have multiple overlays if more than one issue applies to the land (such as an area with environmental and heritage significance).[footnote 77]

The overlays provided for in the Victoria Planning Provisions include:[footnote 78]

Environment and Landscape:

Heritage and Built Form:

Environmental Significance

Heritage

Vegetation Protection

Design and Development

Significant Landscape

Incorporated Plan

Development Plan

Neighbourhood Character

Land Management:

Other:

Erosion Management

Public Acquisition

Salinity Management

Airport Environs

Floodway

Environmental Audit

Land Subject to Inundation

Road Closure

Special Building

Restructure

Wildfire Management

Development Contributions Plan

State Resources

City Link Project

An overlay will indicate whether a permit is required (in addition to any zone requirements) for subdivision, demolition, construction of a building or carrying out works. In a Heritage overlay, for example, a permit is required to construct a building or carry out works, externally alter a building, display a sign, remove a tree or demolish a building. In a Vegetation Protection, Significant Landscape, and Environmental Significance overlay, there are permit requirements relating to removing, destroying or lopping vegetation. [footnote 79]

Overlays, and schedules to the overlay added by the local council (which may identify a specific building or local area), provide 'the opportunity for a council to reflect local circumstances and give effect to a strategic direction in the Municipal Strategic Statement or implement a local policy.'[footnote 80] Some examples include:

§ A heritage overlay to require planning permission to alter, remove or demolish any building in a precinct identified as having heritage significance and so manage change in that precinct.

§ A design and development overlay to impose a height or set back requirement to ensure that new development is compatible with the existing built form and landscape character.

§ A development contributions plan overlay to impose a levy to pay for improved drainage in a catchment.

§ A vegetation protection overlay to require a planning permit before significant vegetation can be removed.[footnote 81]

An overlay will generally be imposed on an area following 'an appropriate study', such as a study commissioned by an expert on heritage.[footnote 82]

Figures 8 and 9 provide examples of the range of overlays selected by the Hobsons Bay City Council and Loddon Shire Council, which are contained in their planning schemes.


Figure 8: Example of overlays in the Hobsons Bay City Council Planning Scheme


Source: Hobsons Bay City Council (2012)[footnote 83]

Figure 9: Example of overlays in the Loddon Shire Council Planning Scheme


Source: Loddon Shire Council (2012)[footnote 84]

Particular provisions

All planning schemes contain standard state-wide particular provisions which set out requirements (such as whether a permit is required) that apply to a range of specified uses and developments. For example:

§ easements, restrictions or reserves;

§ satellite dishes;

§ advertising signs;

§ car-parking;

§ uses with adverse amenity potential (i.e. chemical, petroleum and coal products);

§ service stations;

§ heliports;

§ telecommunications facilities;

§ tennis courts;

§ licensed premises; and

§ gaming.[footnote 85]

The particular provisions also include the residential development provisions, or 'ResCode', which is discussed further below.

Particular provisions apply in addition to any requirements set out in the applicable zone or overlay (unless otherwise specified). Furthermore, the particular provisions may specify that a permit is required for a particular use or development, even if the zone or overlay does not require a permit for that use or development. They apply consistently across Victoria (as set out in the Victoria Planning Provisions) and a local council cannot change them.[footnote 86] However, schedules to some provisions may contain local content.

Each particular provision contains decision guidelines in order to provide decision-making guidance to the responsible authority. For example, before a local council decides on an application to remove an easement, it must 'consider the interests of affected people'.[footnote 87] Under provisions relating to satellite dishes, a local council must 'consider the effect of the satellite dish on the visual amenity of nearby land'.[footnote 88]


ResCode

In Victoria, residential development is controlled by residential development provisions in the planning scheme, commonly known as 'ResCode'.[footnote 89] ResCode is contained in clauses 54 and 55 of the particular provisions.[footnote 90]

Clause 54 ('one dwelling on a lot') provisions apply to applications to construct a building or construct or carry out works associated with one dwelling on a lot under the provisions in:

§ A Residential 1 Zone, Residential 2 Zone, Residential 3 Zone, Mixed Use Zone or Township Zone.

§ A Neighbourhood Character Overlay if the land is in a Residential 1 Zone, Residential 2 Zone, Residential 3 Zone, Mixed Use Zone or Township Zone.[footnote 91]

Clause 55 ('two or more dwellings on a lot and residential buildings') provisions apply to applications in the Residential 1 Zone, Residential 2 Zone, Residential 3 Zone, Mixed Use Zone and Township Zone to:

§ Construct a dwelling if there is at least one dwelling existing on the lot,

§ Construct two or more dwellings on a lot,

§ Extend a dwelling if there are two or more dwellings on the lot,

§ Construct or extend a dwelling on common property, or

§ Construct or extend a residential building.[footnote 92]

The ResCode provisions set out the objectives, standards and guidelines for new residential development.[footnote 93] Each objective contains a standard, which may be varied by using a schedule to the residential zone or neighbourhood character overlay.[footnote 94] Decision guidelines are also provided for each standard to assist the local council. An example of a ResCode provision is illustrated in case study 3 below:


Case study 3: example of a ResCode provision – Overshadowing open space[footnote 95]

Clause 55.04-5: Overshadowing open space objective

To ensure buildings do not significantly overshadow existing secluded private open space.

Standard B21

Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September.

If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.

Decision guidelines

Before deciding on an application, the responsible authority must consider:

- The design response.

- The impact on the amenity of existing dwellings.

- Existing sunlight penetration to the secluded private open space of the existing dwelling.

General provisions

General provisions are contained in clauses 60-67 and provide information about the 'technical aspects of the planning scheme'.[footnote 96] They are consistent across the state (as set out in the Victoria Planning Provisions) and thus standardise the operational requirements of planning schemes.[footnote 97] General provisions cover the following matters:

§ administration of the scheme (clause 61), including the identification of the responsible authority for the scheme (schedule to clause 61.01));

§ uses, buildings, subdivision or works not requiring a planning permit (clause 62);[footnote 98]

§ existing use rights (clause 63);

§ ancillary uses (i.e. land used for more than one use or in conjunction with another use) (clause 64);

§ decision guidelines (clause 65);

§ referrals and notice provisions (clause 66), including the identification of the referral authority for certain types of permit applications; and

§ applications under s 96 of the Planning and Environment Act (which relates to land owned or permit required by the responsible authority) (clause 67).

Decision guidelines

Clause 65 sets out decision guidelines for the responsible authority. It states that, before deciding on an application, the responsible authority must consider, as appropriate:

§ The matters set out in Section 60 of the Act.[footnote 99]

§ The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

§ The purpose of the zone, overlay or other provision.

§ Any matter required to be considered in the zone, overlay or other provision.

§ The orderly planning of the area.

§ The effect on the amenity of the area.

§ The proximity of the land to any public land.

§ Factors likely to cause or contribute to land degradation, salinity or reduce water quality.

§ Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

§ The extent and character of native vegetation and the likelihood of its destruction.

§ Whether native vegetation is to be or can be protected, planted or allowed to regenerate.

§ The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

These decision guidelines operate in addition to any controls or decision guidelines specified in the zone or overlay provisions.[footnote 100]

Existing use rights

Clause 63 of the planning scheme deals with existing uses of land. The Planning and Environment Act provides that a planning scheme cannot prevent the continuation of a lawfully existing land use if the existing use was established before the scheme came into operation.[footnote 101]

Clause 63.01 provides that an existing use right will be established if any of the following apply:

§ The use was lawfully carried out immediately before the approval date.

§ A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

§ A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

§ Proof of continuous use for 15 years is established under Clause 63.11.

§ The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.[footnote 102]

Amending a planning scheme

This section outlines the procedure for amending a planning scheme. A planning scheme may need to be amended for a number of reasons, such as to:

§ implement a new state or local policy;

§ correct a mistake;

§ allow a prohibited use to take place;

§ restrict a use or development in a particular location;

§ authorise the removal of a restrictive covenant; or

§ incorporate changes made to the Victoria Planning Provisions.[footnote 103]

What can be amended?

The Planning and Environment Act provides that the Minister for Planning may prepare amendments to any provision of a planning scheme, or authorise a local council to prepare an amendment to a planning scheme operating in its municipality.[footnote 104] The Minister may also prepare and approve amendments to the Victoria Planning Provisions.[footnote 105] An amendment to the Victoria Planning Provisions may also provide for an amendment to one or more specified planning schemes.[footnote 106] There are thus three types of amendments, which are identified as follows:

§ An amendment to the Victoria Planning Provisions only (which is identified by the letter 'V', i.e. V1, V2, etc);

§ An amendment to the Victoria Planning Provisions and one or more planning schemes (which is identified by the letters 'VC', i.e. VC1, VC2, etc);

§ An amendment to a planning scheme only (which is identified by the letter 'C', with a number allocated by the municipality, i.e. C1, C2, etc).[footnote 107]

Who can amend a planning scheme?

A 'planning authority' is the term used for the authority which prepares an amendment to the planning scheme.[footnote 108] Section 8A of the Planning and Environment Act provides that a municipal council is a planning authority for any planning scheme in force in its municipal district. A council may only prepare a planning scheme amendment if authorisation is given by the Minister. The Minister for Planning (or any other Minister or public authority authorised by the Minister for Planning) can also be a planning authority.[footnote 109]

The process for amending a planning scheme

With authorisation of the Minister for Planning, a planning authority such as a local council may prepare an amendment to the local provisions of its planning scheme. Councils cannot amend a state-standard provision (set out in the Victoria Planning Provisions).[footnote 110] As a result, amendments to planning schemes by local councils are usually restricted to, for example:

§ Replacing a standard zone from the Victoria Planning Provisions with a different standard zone from the Victoria Planning Provisions;

§ Introducing, deleting or replacing an overlay with a different overlay from the Victoria Planning Provisions;

§ Introducing, deleting or modifying a schedule to a zone or overlay;

§ Incorporating a document into the planning scheme; and

§ Amending its Municipal Strategic Statement or local policies.[footnote 111]

The usual process for a planning scheme amendment includes the following steps:[footnote 112]

§ Step 1: Requesting or initiating amendment;

§ Step 2: Authorisation by the Minister;

§ Step 3: Preparation of amendment;

§ Step 4: Notification and exhibition of amendment;

§ Step 5: Consideration of submissions, and panel hearing (if applicable);

§ Step 6: Adoption of amendment by council; and

§ Step 7: Approval of amendment by the Minister.

These steps are illustrated in Figure 10 and discussed further below. Opportunities for VCAT to review amendment procedures will also be discussed.

Figure 10: Planning Scheme Amendment Process

Source: Victorian Planning System Ministerial Advisory Council[footnote 113]

Step 1: Initiating or requesting or an amendment

Initiating an amendment

A local council can initiate an amendment to its planning scheme. The council must, however, obtain the Minister's authorisation to prepare the amendment (see step two below).

Making a request to council

Any person can make a request to a local council to amend its planning scheme. While the Planning and Environment Act does not set out a procedure for making a request, it is a 'well-established practice' that a person may make such a request to the council.[footnote 114] Furthermore, the Act provides that a fee may be prescribed for amendments to planning schemes. Section 203(1) states:

The Governor in Council may make regulations prescribing fees for –

(c) amendments to planning schemes including but not limited to-

(i) considering proposals for amendment; and

(ii) any stage in the amendment process; and

(iii) considering whether or not to approve the amendment…

Before a formal request is made, the Department of Planning and Community Development recommends that a proponent discuss the proposal for an amendment with the council in order to determine whether it is necessary, whether it is consistent with local and state policy and whether or not it will be supported by council.[footnote 115]

A council 'does not have to agree to a request to prepare an amendment', and there is no right of review for a refusal.[footnote 116]

Before seeking the Minister's authorisation to prepare an amendment, the Department of Planning and Community Development notes that the subject area or issue 'must be thoroughly investigated'.[footnote 117] In preparing a request to the Minister, proponents and the council should also consider the Practice Note: Strategic Assessment Guidelines for Planning Scheme Amendments.[footnote 118] Early consultation at this stage with the Department is also recommended.[footnote 119]


Making a request to the Minister

As the Minister for Planning may prepare planning scheme amendments, any person may make a request to the Minister to prepare an amendment. For example, a person may make such a request to the Minister if their local council does not agree to prepare an amendment (as outlined above).[footnote 120]

The request to the Minister must be in writing and 'must identify the basis on which the Minister should be the planning authority for the amendment', addressing the criteria contained in the Practice Note: Ministerial Powers of Intervention in Planning and Heritage Matters.[footnote 121]

The Planning and Environment Amendment (General) Act 2013 inserts new section 20A into the Planning and Environment Act. Section 20A introduces a 'streamlined process' for 'straightforward' planning scheme amendments.[footnote 122] The Minister's second reading speech stated:

Approximately one-third of amendments are for straightforward changes, such as removing redundant provisions and making corrections… The criteria for determining what amendments may be prepared under the new streamlined process will be prescribed in regulations, which will be developed in consultation with local councils and other planning stakeholders. The prescribed matters are likely to include updates, corrections and technical changes that have no significant policy impact.

Any person can ask the minister to prepare an amendment under this process, or the minister may initiate the amendment. The key is that the proposed change must meet the criteria prescribed in the regulations. The minister will decide if the proposal meets the criteria and whether to proceed with the request. The minister will prepare the amendment and will consult with the relevant planning authority, which is usually the local council, unless the planning authority has requested the amendment.[footnote 123]


Step 2: Authorisation by the Minister

A local council (or other planning authority) may only prepare an amendment to its planning scheme once written authorisation is given by the Minister for Planning.[footnote 124] The request must be in writing and must contain all information required by the Minister. The Minister may authorise the preparation of an amendment subject to any conditions the Minister wishes to impose.[footnote 125]

The Planning and Environment Amendment (General) Act 2013 amended this step 'so that once a council applies for authorisation, the Minister has 10 business days to notify the council that the application has been authorised, refused or requires further review'.[footnote 126] If no notice has been given once 10 business days elapse, the council may proceed to prepare the amendment.[footnote 127]

Step 3: Preparation of amendment

Once a local council (or other planning authority) has authorisation from the Minister, it may prepare the amendment. The Planning and Environment Act provides that the planning authority must prepare an explanatory report for any proposed planning scheme amendment.[footnote 128] The explanatory report must discuss how the amendment addresses a range of strategic considerations.[footnote 129] These considerations are explained in the General Planning Practice Note, Strategic Assessment Guidelines for Planning Scheme Amendments.[footnote 130] The Practice Note also includes a 'Strategic Assessment Guidelines Checklist' to assist planning authorities.[footnote 131]

Furthermore, in preparing a planning scheme amendment, section 12(2) of the Planning and Environment Act provides that the planning authority must–

§ have regard to the Minister's directions;

§ have regard to the Victoria Planning Provisions;

§ have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and

§ take into account any significant effects the amendment might have on the environment or the environment might have on any use or development envisaged in the amendment.[footnote 132]

The amendment should also help implement State Planning Policy Framework and Local Planning Policy Framework objectives, and must not be inconsistent with state policy.[footnote 133]

Step 4: Notification and exhibition of amendment

Once an amendment is prepared by the planning authority, a copy must be given to:

§ a municipal council, if the amendment applies to its municipal district; and

§ the Minister for Planning; and

§ any other person specified by the Minister.[footnote 134]

The planning authority must make the amendment documentation available at its offices during office hours for any person to inspect free of charge until the amendment is approved or lapses.[footnote 135]

Section 19(1) of the Act provides that notice must be given to particular people or bodies, including:

§ every Minister, public authority and municipal council that it believes may be 'materially affected' by the amendment (section 19(1)(a));

§ the owners and occupiers of land that it believes may be 'materially affected' by the amendment (section 19(1)(b));[footnote 136]

§ any prescribed Minister, public authority, council or person (section 19(1)(c));[footnote 137]

§ owners and occupiers of land benefited by a registered restrictive covenant, if the amendment provides for the removal or variation of the covenant (section 19(1)(ca));[footnote 138] and

§ the Minister administering the Land Act 1958 if the amendment provides for the closure of a road wholly or partly on Crown land (section 19(1)(d)).

According to the Department of Planning and Community Development, 'materially affected' would include 'anyone whose land is subject to changed controls under the amendment and might include owners and occupiers of adjoining or nearby land'.[footnote 139]

The planning authority must publish a notice of any amendment it prepares in a 'newspaper generally circulating in the area to which the amendment applies'.[footnote 140] The planning authority must also publish a notice in the Government Gazette.[footnote 141]

Any notice given by the planning authority must-

(a) be given in accordance with the regulations; and

(b) set a date for submissions to the planning authority which, if notice of the preparation of the amendment is given in the Government Gazette, must be not less than one month after the date that the notice is given in the Government Gazette.[footnote 142]

Section 20 of the Planning and Environment Act provides that a planning authority may apply to the Minister for Planning to exempt it from any of the notice requirements set out in section 19 or the regulations in relation to an amendment.[footnote 143] The Minister may exempt a planning authority from any of those notice requirements if the Minister considers that 'compliance with any of those requirements is not warranted, or that the interests of Victoria or any part of Victoria make such an exemption appropriate'.[footnote 144]

If the amendment is being prepared by the Minister for Planning, the Minister may exempt him or herself from the notice requirements of sections 17. 18 and 19, 'if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate'.[footnote 145] The Practice Note, Ministerial Powers of Intervention in Planning and Heritage Matters, sets out the circumstances in which the Minister will consider exercising his or her power to amend a planning scheme with exemption from notice requirements.[footnote 146] Although not exhaustive, it states that the following criteria will 'usually be relevant':

1. The matter will be one of genuine State or regional significance…

2. The matter will give effect to an outcome where the issues have been reasonably considered and the views of affected parties are known.

3. The matter will be the introduction of an interim provision or requirement and substantially the same provision or requirement is also subject to a separate process of review (such as the introduction of permanent controls in a planning scheme).

4. The matter will raise issues of fairness or public interest...

5. The matter requires co-ordination to facilitate decision-making by more than one agency.[footnote 147]

Step 5: Consideration of submissions and panel hearings

Any person may make a submission to the planning authority 'about an amendment of which notice has been given under section 19'.[footnote 148] The planning authority must consider all submissions made on or before the date set out in the notice (unless it is a submission requesting a change to the terms of any State standard provision).[footnote 149] It may consider a late submission, and must do so if the Minister directs it to.[footnote 150] The planning authority must make a copy of the submissions publicly available for inspection.[footnote 151]

If a submission requests a change to the amendment, the planning authority must either change the amendment in the manner requested, abandon the amendment (or the relevant part of the amendment), or refer the submission to a planning panel.[footnote 152] The planning authority may also refer submissions to the panel which do not require a change to the amendment.[footnote 153]

Part 8 of the Planning and Environment Act deals with the appointment of panels and procedures in relation to panel hearings. Section 153 provides that the Minister must appoint a panel to consider submissions referred to it. Members of a panel are usually chosen by Planning Panels Victoria.[footnote 154]

The Planning and Environment Act provides that the panel 'must consider all submissions referred to it and give a reasonable opportunity to be heard' to-

§ any person who has made a submission referred to it;

§ the planning authority;

§ any responsible authority or municipal council concerned;

§ any person whom the Minister or the planning authority directs the panel to hear.[footnote 155]

The general procedure for a panel hearing is set out in section 161 of the Planning and Environment Act.

The panel must report its findings, including any recommendations, to the planning authority.[footnote 156] The planning authority must ensure that the panel's report is available at its office for public inspection once the planning authority has decided whether or not to adopt the amendment or if 28 days have elapsed since it received the panel's report (or any time prior).[footnote 157]

A joint panel may be appointed by the Minister for Planning to consider both a planning scheme amendment and an Environment Effects Statement (EES) required under the Environment Effects Act 1978 (Vic).[footnote 158]

Step 6: Adoption of amendment

Once a planning authority has complied with the notice requirements, considered all submissions received, and considered the panel report (if a panel was appointed), it may make a decision to adopt (in whole or in part, and with or without changes) or abandon the amendment.[footnote 159] According to the Municipal Association of Victoria, a decision to adopt the amendment 'must be made by the full council'.[footnote 160]

Step 7: Approval of amendment

If an amendment is adopted by the council, it must be submitted to the Minister for consideration and approval.[footnote 161] The Minister may approve the amendment, with or without changes (and subject to any conditions the Minister wishes to impose), or refuse to approve the amendment.[footnote 162] The Minister must publish a notice of the approval of an amendment in the Government Gazette.[footnote 163] The planning authority must also give notice of the approval 'in a matter satisfactory to the Minister'.[footnote 164] An amendment will come into operation when the notice of approval is published in the Government Gazette, or any later day specified in the notice.[footnote 165]

Section 38 of the Planning and Environment Act provides that the Minister must cause notice of the approval of every amendment to be laid before each House of Parliament within 10 sitting days after its approval.[footnote 166] An amendment may be revoked (wholly or in part) by a resolution passed by either House of Parliament within 10 sitting days after the notice of approval is laid before that House.[footnote 167] If an amendment is revoked by Parliament:

a) any provision of a planning scheme that had been revoked by the amendment comes back into operation from the beginning of the day on which the amendment was revoked; and

b) any provision of a planning scheme that had been directly amended by the amendment takes effect without that direct amendment from the beginning of the day on which the amendment was revoked as if the revoked amendment had not been made.[footnote 168]

Reviews by VCAT in relation to amendment procedures

Section 39 of the Planning and Environment Act provides for a person who is 'substantially or materially affected' by a failure of the Minister, a planning authority or a panel to comply with procedural requirements[footnote 169] for an amendment to a planning scheme may refer the matter to VCAT. Examples may include: inadequate notice given, a failure to consider a submission, or a failure to accord natural justice.[footnote 170] The referral to VCAT must occur before the amendment is approved by the Minister and within one month after the person becomes aware of the failure.[footnote 171]

Under section 39, VCAT does not review the substantive merits of the planning scheme amendment and cannot make a substitute decision.[footnote 172] Rather, it determines whether or not legislative procedures have been followed correctly and can make a declaration or direction in relation to the procedural defect, i.e. that the planning authority must not adopt the amendment until the VCAT direction has been complied with.[footnote 173]


Chapter Three

Planning Permits

This chapter outlines the purpose of planning permits, the application process and avenues for review of permit decisions. A case study is presented at the end of this chapter to illustrate some of the processes described.

As mentioned in earlier chapters, under section 6(2) of the Planning and Environment Act, a planning scheme may regulate or prohibit the use or development of any land. Defined under section 3 of the Act, 'use' includes 'use or proposed use for the purpose for which the land has been or is being or may be developed', whereas 'development', also defined under section 3, includes:

§ Changes to the external appearance of a building;

§ Demolition or removal of a building or works;

§ Works to change the condition of the land (e.g. removal of trees or vegetation);

§ Subdivision;

§ Signage.[footnote 174]

For example, if a person wanted to construct a dwelling on a lot to use as a bed and breakfast, the construction of the dwelling and erection of signage would be classified as the 'development' and 'bed and breakfast' would be classified as the 'use'.

Zones and overlays in planning schemes provide for three possible process outcomes for proposed changes in land use or development. Zones and overlays can:

§ Allow a particular development or use without a permit, generally subject to the fulfilment of certain conditions;

§ Require approval for a permit with or without conditions; or

§ Prohibit a specific development or use from occurring.[footnote 175]

This chapter focuses on the second point – land use or development that requires approval for a planning permit before it can proceed. A planning permit is, 'a legal document that gives permission for a use or development on a particular piece of land'.[footnote 176] Eccles and Bryant state that the main purpose of the planning permit system is to 'ensure that uses and development are located appropriately in relation to State and local policies and also in relation to other uses and development and do not interfere with the amenity of adjoining and nearby land'.[footnote 177]

The processing and determination of planning permit applications is a function of the 'responsible authority'. In most cases, the responsible authority is the local council.[footnote 178] To receive approval for a permit, an application must be made to the responsible authority. A permit will be granted if the responsible authority agrees with the proposal.[footnote 179]

What is the difference between a planning permit and a building permit?

Planning permits are provided for under the Planning and Environment Act.[footnote 180] They are primarily concerned with the location of a development or work and its impacts on adjoining land, the neighbourhood and the streetscape. A planning permit allows a change in the use of land and/or development of land, if required by the planning scheme.[footnote 181]

Building permits are issued under the Building Act 1993 and are necessary for any construction. The purpose of the building permit/approval system is to ensure that any building work complies with the minimum standards of construction outlined in the Building Regulations 2006.[footnote 182] A building permit cannot be acted upon if a planning permit is required for the same development under the planning scheme but has not been obtained.[footnote 183]

When is a planning permit required?

A planning permit is necessary when the planning scheme specifies that it is required.[footnote 184] The need for most planning permits arises due to the requirements of the zone and/or any overlays that apply to the land that is proposed for use and/or development. There are, however, other controls in the planning scheme (i.e. Particular Provisions) that may trigger the need for a permit. For example, a permit may be required under clause 52.05, which deals with advertising signs, or clause 52.06, which deals with car parking requirements. Sometimes, a development proposal will trigger the requirement for up to four or five planning consents (i.e. a permit for land use, construction of building and works, subdivision, car parking, or signage).[footnote 185]

What is the process for applying for a planning permit?

All planning permits in Victoria are currently processed using the same 'standard' process. However, a new shorter permit process, known as 'VicSmart', is due to commence in 2013.[footnote 186] This process will be for simple planning matters that can be assessed against pre-set criteria.[footnote 187] Both the standard and VicSmart planning permit assessment processes are outlined below.

Standard process for applying for a planning permit

Figure 11 outlines the standard process for applying for a planning permit.

Figure 11: The Standard Planning Permit Process

The application is received, including the prescribed fee (s 47).

Register the application (s 49).

Application can be amended (s 50, s 50A).

Application can be amended (s 57A).

Referral procedures if required (s 55)

Obtain more information if required (s 54).

No referral, information or notice required.

Notice of application if required (ss 52 & 53).

Issue permit if there were no objections (s 63).

Issue Notice of Decision if there were objections and the responsible authority proposes to approve (s 64).

Notice of refusal (s 65).

Make a decision (ss 60 & 61).


Source: Adapted from the Victorian Planning System Ministerial Advisory Committee Initial Report[footnote 188]

Figure 11 shows that once a permit application has been submitted to the responsible authority (usually the local council), there are a range of actions that may be undertaken: the application may be referred to a referral authority; more information may be sought from the applicant; and/or public notice of the application may be given. Each of these actions is described in further detail below.


Referral procedures if required

A referral authority 'can be any person, group, agency, public authority or other body specified in the planning scheme or the Act whose interests may be particularly affected by the grant of a permit for a use or development', according to the Department of Planning and Community Development.[footnote 189]

Examples of referral authorities include: VicRoads; the Department of Sustainability and Environment; the Environment Protection Authority; Country Fire Authority; a range of utility providers and catchment management authorities.[footnote 190]

A planning permit application must be given to every person or body specified as a referral authority for that type of application under the planning scheme.[footnote 191] Currently, if a referral authority objects to the granting of a permit, the responsible authority must refuse to grant the permit.[footnote 192] However, under recent changes to the Planning and Environment Act[footnote 193], referral authorities will be reclassified as either 'determining' or 'recommending' referral authorities. If a determining referral authority objects to the granting of a permit, the responsible authority must refuse to grant the permit. However, if a recommending referral authority objects to a permit application, the responsible authority will retain the discretion to decide whether or not to grant the permit.[footnote 194]

Obtain more information if required

The responsible authority may request that the applicant provides it or a referral authority with more information before it considers an application.[footnote 195] A request for more information should be made within 28 days of the responsible authority receiving the application.[footnote 196]

Notice of application if required

Notice (or 'advertising') requirements for planning permit applications are specified in section 52(1) of the Planning and Environment Act. A planning scheme may also set out particular requirements for giving notice.[footnote 197]

Some planning permit applications will not require advertising. These include applications for which the planning scheme specifically indicates that advertising is not required, or where the responsible authority is satisfied that the proposal will not have a negative impact or cause material detriment to any person.[footnote 198]

Otherwise, the responsible authority must give notice (or require the applicant to give notice) to: owners and occupiers of adjoining land, unless the responsible authority is satisfied that granting a permit would not cause material detriment to any person; the council, if the proposal applies to, or may materially affect, land within its municipal district; any persons specified for notice under the planning scheme; and any other persons whom the responsible authority considers may incur material detriment as a result of a proposal.[footnote 199] Proposals must be advertised for at least 14 days.[footnote 200]

Persons wishing to object to a planning permit proposal may do so during the advertising period or at any time thereafter until the responsible authority makes a decision. Any person 'who may be affected by the grant of the permit may object to the grant of a permit'.[footnote 201] However, an objection must be: in writing; outline the reasons for the objection; and specify how the objector will be affected if the permit is granted. [footnote 202]

Making a decision

Prior to making a decision on a planning permit, the council planner will assess the proposal and make a recommendation to the council. The council planner's assessment should include consideration of:

§ The planning scheme, in particular the State Planning Policy Framework, the Municipal Strategic Statement and the local policies, the zone and overlay provisions, the decision guidelines and incorporated documents

§ The reasons for objections and an assessment of their planning merits

§ The views of referral authorities

§ Comments from other council departments

§ Significant environmental effects

§ Social and economic effects

§ Any adopted amendment

§ Any other relevant planning consideration, such as the impact on amenity

§ Any strategic plan, policy statement, code or guideline.[footnote 203]

Once the council planner has completed the assessment, he or she will make a recommendation to the council to: refuse the permit; or grant the permit with or without conditions.[footnote 204]

When the council is making its decision, it must consider a number of matters under section 60 of the Planning and Environment Act. These include:

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development.

Under section 76 of the Planning and Environment Amendment (General) Act 2013, responsible authorities will also have to consider, 'any significant social effects and economic effects which the responsible authority considers the use or development may have'.

In addition to these considerations, if the circumstances appear to require, the responsible authority may also take into account a number of other matters.[footnote 205]

The council does not have to grant a planning permit simply because it is recommended by the council planner. However, the Municipal Association of Victoria states that if the council's decision is contrary to the planner's decision, the council must be satisfied that its decision is justified on planning grounds.[footnote 206]

When making a decision on an application, the responsible authority may decide—

(a) to grant a permit; or

(b) to grant a permit subject to conditions; or

(c) to refuse to grant a permit on any ground it thinks fit.[footnote 207]

If the council decides to grant a permit where there were objections, it must issue a Notice of Decision to both the applicant and the objectors. The permit cannot be issued until the end of the period within which an objector may apply to VCAT. If the objector applies to VCAT for a review, the permit cannot be issued until VCAT has determined the matter or the application has been withdrawn.[footnote 208]

If the council decides to refuse a permit, it must notify both the applicant and any objectors of the decision in the prescribed form. The form must contain the grounds for refusing the permit and state whether the grounds were those of the council or a referral authority.[footnote 209]

Delegation of decision-making authority

For particular types of applications (e.g. routine matters), a council may delegate its decision-making authority to the council planner.[footnote 210] Also, for specific permit applications or classes of applications, a council will soon be able to seek advice from, or delegate its decision-making authority to, the Planning Application Committee (or PAC).[footnote 211] The PAC was established under Part 3 of the Planning and Environment (General) Amendment Act 2013. It will consist of: a chairperson appointed by the Minister from a list prepared in consultation with the Municipal Association of Victoria, the Victorian Local Governance Association and two bodies the Minister considers represent the planning and development industry; and at least four other members appointed by the Minister.[footnote 212]

VicSmart process for planning permit applications

VicSmart, a new short permit application process, is due to commence in 2013.[footnote 213] According to the Department of Planning and Community Development, the VicSmart process will be used for 'straightforward, low impact planning permit applications'.[footnote 214] The proposed process is illustrated in Figure 12 below.


Figure 12: Proposed VicSmart Process

Source: Department of Planning and Community Development (2012)[footnote 215]

Under this new process, certain classes of planning permit applications- as specified in the planning scheme- will be assessed by the responsible authority in 10 days. Such applications will be exempt from further formal information requirements, notice requirements and objector review rights. These applications will be assessed against pre-set criteria and will be exempt from section 60 matters. VicSmart applications will be determined by a council's chief executive officer (or delegate).[footnote 216] The planning permit decision will be limited to either granting or refusing the permit.[footnote 217]


Ministerial call-in powers for planning permit applications

The Minister for Planning has the power to call-in a planning permit application which is yet to be determined by the responsible authority under section 97B of the Planning and Environment Act. The Minister may call-in an application if he or she considers the application:

§ raises a major issue of policy and that the determination of the application may have a substantial effect on the achievement or development of planning objectives;

§ the decision on the application has been unreasonably delayed to the disadvantage of the applicant;

§ the use or development to which the application relates is also required to be considered by the Minister under another Act or regulation and that consideration would be facilitated by the referral of the application to the Minister.[footnote 218]

The Minister for Planning may also establish a panel to consider the objections and submissions received in respect of the application.[footnote 219]

Section 97F specifies that the Minister, after considering the panel report (if any), the planning scheme and any applicable matters under section 60, may:

(a) grant the permit; or

(b) grant the permit subject to conditions; or

(c) refuse to grant the permit on any ground he or she thinks fit.

Review of a responsible authority's permit decision

Review by the Victorian Civil and Administrative Appeals Tribunal

Under the standard planning permit process, reviews can be initiated by:

§ An objector lodging an application for review of the council's decision to grant a planning permit. This must be done within 21 days of the notice of the decision (to grant a permit).

§ An applicant lodging an application for review of the council's decision to refuse to grant a permit or any condition included in the permit. This must be done within 60 days of the decision.

§ An applicant lodging an application for review because the council has not made a decision within 60 days of the permit application being lodged. This is called 'failure to determine'.[footnote 220]

The planning scheme may, however, exempt certain types of permit applications from review requirements.

As noted above, for permits that will be issued under the VicSmart system, only applicants will be able to apply to VCAT for a review.[footnote 221]

In determining a review of a standard or VicSmart planning permit decision, VCAT must: take account of any matter which the responsible authority properly took account of, or was required to take account of, in making its decision; and have regard to any matter which the responsible authority properly had regard to in making its decision; or is required to have regard to in making its decision.[footnote 222]

Further to these matters, if the application is a standard application, other issues must be considered. These include, but are not limited to: the relevant planning scheme; the objectives of planning in Victoria; any approved regional plan (where appropriate); any State environment protection policy; where appropriate, the extent to which persons residing or owning land in the vicinity were able to and in fact did participate in the procedures required to be followed under the Planning and Environment Act; any amendment to a planning scheme that has been adopted but not yet approved; as well as other matters.[footnote 223]

For VicSmart applications, the only additional matters that VCAT will be required to consider will be the relevant planning scheme and any other matters as required by the provisions of the Planning Act or any other Act.[footnote 224]

Ministerial call-in powers

Under section 58 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act, the Minister may call-in applications for review being considered by VCAT. The Minister may call-in an application for review if he or she considers that:

§ the application for review raises a major policy issue; and

§ the determination of the application for review may have a substantial effect on the development or achievement of planning objectives.[footnote 225]

Appeals to the Supreme Court

A party to a proceeding may appeal a VCAT decision in the Supreme Court, but only on a question of law.[footnote 226]


Planning permit case study: permit application to develop land for a McDonald's restaurant in Tecoma, Yarra Ranges

This case study illustrates some of the processes involved in obtaining a planning permit, as described in this chapter. The case study involves a planning permit application to build a 24 hour McDonald's restaurant in the main street of Tecoma. Tecoma is a town at the base of the Dandenong Ranges.

Background

In June 2011, McDonald's applied to the Yarra Ranges Shire Council (the responsible authority) for a planning permit to:

…construct buildings and works associated with a convenience restaurant, including an acoustic boundary fence, creation and removal of easements, variation to the existing easements, erection of associated signage including internally illuminated signage and removal of vegetation over four existing lots known as no. 1529, 1529A, 1531 and 1533 Burwood Highway, Tecoma. These premises are to operate as a McDonald's restaurant.[footnote 227]

The land proposed for the development was located in a Business 1 Zone and the lots also abutted a Road Zone Category 1. The relevant land was not affected by any Overlays.

Under the Business 1 Zone, a 'convenience restaurant' (which encompasses restaurants such as McDonald's) is already a permitted use. Thus, McDonald's could have operated from the existing buildings without the need for planning permission. However, as McDonald's wanted to develop the land, they required planning permission for the new building, its signage, its car parking and lighting. Planning permission was also required to remove native trees and to change the road access to the Burwood Highway. These permit requirements were necessary under the following clauses of the Yarra Ranges Planning Scheme:

§ Clause 34.01-4 (buildings and works in a Business 1 Zone)

§ Clause 52.02 (removal of easements)

§ Clause 52.05 (advertising signage in a Business 1 Zone)

§ Clause 52.29 (modification of access to a Road Zone Category 1)

§ Clause 53.01 (buildings and works and removal of vegetation).[footnote 228]

Referral authorities

The responsible authority forwarded the planning permit application to the following referral authorities: VicRoads; Multinet Gas; Telstra; SPI Ausnet; Melbourne Water; and South East Water. None of the referral authorities objected to the issue of a permit.


Notice

Notice of the McDonald's proposal was given in the following forms:

§ By direct notice to owners and occupiers of adjoining allotments or lots;

§ By placing four signs on the land (one on each lot proposed for development); and

§ By publishing a notice in the local newspaper.

Objections

In excess of 1,000 objections were received in relation to the proposal. A summary of the objectors' issues included:

§ A convenience restaurant was not needed in the area, particularly near a school;

§ Associated odour and noise;

§ Antisocial behaviour;

§ An increase in traffic would destroy the area's character and create parking problems;

§ The development would be out of character with the friendly, village nature of Tecoma and the site would be overdeveloped;

§ Noise pollution would result from delivery trucks;

§ The bulk, height, design and materials were unsympathetic to the surrounding area;

§ Spillage of lighting.[footnote 229]

Letters of support for the development were also received. These letters referred to the economic benefits of the proposed McDonald's for Tecoma.

Assessment and Recommendation by the Council's Planning Department

The Yarra Ranges Shire Council's Planning Department assessed the proposal and recommended that a Notice of Decision to Grant a Permit be issued subject to conditions.

In summary, the Department concluded:

The proposal appropriately responds to the built form character of the area and the design of the McDonald's premises has deliberately moved away from the typical convenience restaurant style development in order to respond to the site and its context. The building and associated works have been designed to respond sensitively and appropriately to the established environmental character and built form of the locality by providing a built form that is modest, low scale modern but with substantial setbacks to the site boundaries. The built form will not have any unreasonable visual impact on the amenity of the adjoining residential development and will be in keeping with the neighbourhood character of the commercial centre.[footnote 230]

The Department's report also addressed objectors' concerns. It stated that a large number of the objections related to the 'inappropriate nature' of McDonald's restaurants. However, the Department specified that the 'use' of the site as a convenience restaurant was allowed 'as of right' in a Business 1 Zone. Thus, the discretion for granting a planning permit related to the 'building and works' (development) of the McDonald's. The report stated:

Matters concerning built form, the siting and the layout of the building, car parking and traffic, loading, access and landscaping are the relevant considerations in determining whether a permit should be granted.[footnote 231]

Council's Decision

On 11 October 2011, contrary to the Council Planning Department's recommendation to issue a Notice of Decision to Grant a Permit, the Council resolved to issue a Notice of Refusal for the proposal.[footnote 232] The Council's grounds for refusal indicated its determination that many aspects of the proposal were inconsistent with relevant state and local planning policies. For example, the Council stated that the proposal was inconsistent with clause 15 (Built environment and heritage) of the planning scheme as it:

… fails to recognise the distinctive urban form and layout of the Tecoma commercial centre and its relationship to the surrounding landscape in that the building will present an urban form that does not reflect the low scale, small grain, articulated built forms characteristic of the Tecoma township.[footnote 233]

The Council also stated that the proposal did not comply with clause 21.04 which recognises the importance of designing buildings to protect the amenity of residents and the visual qualities of an area.[footnote 234] Other grounds included: that the development would cause detriment to the surrounding area due to increased traffic congestion; that the proposed advertising signage was excessive and would promote visual clutter; and that the construction of an acoustic fence for noise abatement was not considered an integrated response to the proposed built form.[footnote 235]

Application for Review of Decision: VCAT

McDonald's Australia Limited applied for a review of the Council's decision at VCAT. The Tribunal received over 320 statements of grounds in support of the Council's decision. Of these statements, VCAT stated that:

The grounds relied upon by residents include a global fast food company would be inconsistent with the tourism 'offer' or 'brand' of the Dandenong Ranges. The building would be too large and inconsistent with Tecoma's character. The proposal would cause a wide range of adverse offsite impacts including noise, illumination from advertising, litter, food preparation odours, antisocial behaviours and public safety, adverse impacts on health, and adverse impacts on native fauna. Furthermore, the traffic generated by this proposal would make worse the existing traffic congestion on Burwood Highway at peak times.[footnote 236]

In response to objectors' submissions about the negative health effects of fast food, economic competition between the existing and proposed food outlets, and the balance of trade between businesses, VCAT stated that these objections 'raised many concerns that we cannot consider as they relate to the use of the land, which does not require our permission'.[footnote 237]

In response to the residents' concerns that the existing buildings had heritage value and should not be demolished, VCAT specified that no Heritage Overlay applied to the land, hence the buildings had no particular status or significance in the planning scheme.

Objectors also submitted that VCAT 'should give weight to the large number of objections' to the proposal. VCAT acknowledged that there was considerable community opposition to the proposed development. However, VCAT stated:

…the Tribunal has consistently found that planning decisions are not to be based on the numbers of objections. Our decision must be based on the planning merits of the planning arguments and the evidence for and against the proposal. We must be guided by the policies and requirements of the Scheme.[footnote 238]

Further to this, the Tribunal stated that:

Clause 65 of the Scheme requires that a development must be 'acceptable'. It is not the Tribunal's role to require a design be perfect or excellent before it can be approved. It is not our role to redesign this or any other proposal to achieve the very best design. We must assess whether its appearance and operational aspects are acceptable guided by the site's context and the relevant planning policy.[footnote 239]

In response to Council's and residents' concerns that the scale, massing and design of the development would fail to fit its context, the Tribunal stated:

We think that the general context of planning policy, the absence of planning overlays that specify design requirements, and the site's location at the edge of the commercial centre on a large lot provides considerable flexibility to design a building that is different and stands apart from the fine grain commercial core.[footnote 240]

VCAT concluded that:

We have to apply the Scheme as we find it. The use of the land is not before us and many of the adverse outcomes identified and given weight by the community are not relevant to this matter. The matters that are before us include activation of the Tecoma activity centre as encouraged by policy, integration with streetscape, building design, landscaping and traffic and parking. We are satisfied that this proposal complies with the Scheme. It would be a contemporary and well designed building that would fit well into the streetscape. It would provide additional landscaping consistent with the vegetation in the locality. We find that the location and operation of its access, loading bay and car parking areas would be satisfactory. Its signage and illumination can be designed to reflect the Tecoma streetscape and night time character. In general, it provides local employment opportunities, supports tourism and broadens the business mix in the centre, as encouraged by policy.[footnote 241]

On 10 October 2012, VCAT ordered that the decision of the responsible authority be set aside and a permit granted.

On 23 October 2012, following the VCAT decision, a motion to lodge an appeal against VCAT's decision in the Supreme Court, was defeated at a Yarra Ranges Shire Council meeting.[footnote 242]


Chapter Four

Planning Enforcement

This chapter will briefly introduce the planning enforcement mechanisms for actual and threatened breaches of the Planning and Environment Act or planning schemes.

Section 14 of the Planning and Environment Act provides that responsible authorities have a duty to enforce the planning scheme. Objectives of planning enforcement include: ensuring compliance with the planning scheme (including compliance with planning controls, permit conditions and section 173 agreements[footnote 243]), preventing threatened breaches, and punishing offenders.[footnote 244]

There are a range of enforcement mechanisms available under the Planning and Environment Act, including:

§ Enforcement orders;

§ Interim enforcement orders;

§ Injunctions; and

§ Infringement notices.

Prosecution proceedings, aimed at punishing an offender if found guilty, may be initiated against a person who has breached the Act, planning scheme, permit condition or section 173 agreement.[footnote 245] Prosecution in the Magistrates' Court for such breaches is available as an alternative, or in addition to, VCAT enforcement proceedings (outlined below).[footnote 246] Prosecution proceedings can only be initiated once an actual breach has occurred. Enforcement orders and injunctions deal with threatened or imminent breaches.

The penalties for offences are set out in section 127 of the Act.

Enforcement orders

Section 114 of the Planning and Environment Act provides that a responsible authority, or any person, may apply to VCAT for an enforcement order against a person who contravenes, or unless prevented by the enforcement order will contravene, a planning scheme, permit condition, or section 173 agreement.[footnote 247]

An enforcement order made by VCAT may direct the person against whom it is made to do any one or more of the following:

§ Stop the use or development;

§ Not start the use or development;

§ Maintain a building in accordance with the order;

§ Restore land to its condition before the breach occurred; or

§ Any other action specified by VCAT to ensure compliance with the Act, planning scheme, condition or agreement.[footnote 248]

Any person who has applied under section 114 for an enforcement order may apply to VCAT in an 'urgent' case for an interim enforcement order.[footnote 249] An enforcement order or interim enforcement order served on an owner or occupier of land is binding on every subsequent owner or occupier of that land.[footnote 250] A person subject to an enforcement order made by VCAT who does not comply with the order will be guilty of an offence.[footnote 251]

Injunctions

Section 125 of the Planning and Environment Act provides that a responsible authority, or any person, may apply to any court with 'competent' jurisdiction (i.e. the Supreme Court, the County Court or, in some circumstances, the Magistrates Court) for an injunction restraining a person from contravening an enforcement order or interim enforcement order.[footnote 252]

Under the Victorian Civil and Administrative Tribunal Act, VCAT may by order grant an injunction in any proceeding 'if it is just and convenient to do so'.[footnote 253] However, this power is only exercisable if a proceeding (i.e. for an enforcement order) is already in progress.[footnote 254]

According to Eccles and Bryant, injunctions are discretionary remedies, and courts are 'unlikely to exercise this discretion where the other avenues under the Act (such as an enforcement order) have not been exhausted'.[footnote 255]


Infringement notices

Under section 130 of the Planning and Environment Act, a responsible authority may serve a planning infringement notice on any person it believes has committed an offence against section 126 of the Act, in the area for which the authority is responsible.[footnote 256] The penalty is five penalty units for a person ($704.20) and ten penalty units for a corporation ($1,408.40).[footnote 257] Eccles and Bryant describe an infringement notice as an 'on-the-spot-fine', which is appropriate for 'minor offences'.[footnote 258] Where an offence is of a continuing or serious nature, a different enforcement avenue under the Act may be more appropriate.[footnote 259]


Chapter Five

Roles in the Planning System

This chapter outlines the key participants in Victoria's planning system and provides a brief summary of their roles and responsibilities. Key participants include:

§ The Parliament of Victoria;

§ The Minister for Planning;

§ The Department of Planning and Community Development;

§ Local councils;

§ Other public authorities;

§ Planning panels;

§ VCAT; and

§ The Supreme Court of Victoria.

The public also play a key role in the planning system. The opportunities for public participation are discussed in Chapter 6: Public Participation in the Planning System.

The Parliament of Victoria

Revoking planning scheme amendments

The Planning and Environment Act provides that the Minister must cause a notice of the approval of a planning scheme amendment to be laid before each House of Parliament within 10 sitting days after its approval.[footnote 260] An amendment may be revoked (wholly or in part) by a resolution passed by either House of Parliament within 10 sitting days after the notice of approval of the amendment is laid before that House.[footnote 261]

Ratification of planning scheme amendments

The Planning and Environment Act provides that an amendment to a metropolitan fringe planning scheme which 'amends or inserts an urban growth boundary', or 'has the effect of altering or removing any controls over the subdivision of any green wedge land' to allow the land to be subdivided into more or smaller lots than allowed for in the planning scheme, does not take effect unless it is ratified by Parliament in accordance with Division 3 of Part 3AA of the Act.[footnote 262] Within seven sitting days of approving such an amendment, the Minister for Planning must lay before each House of Parliament a copy of the amendment. In order to take effect, the amendment must be ratified by a resolution passed by each House within 10 sitting days.[footnote 263]

Amendments to the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan also require ratification by a resolution passed by each House of Parliament within 10 sitting days after it is laid before each House in order to take effect.[footnote 264]

The Minister for Planning

The Minister for Planning has a range of statutory powers under the Planning and Environment Act, including:

§ Issuing Ministerial Directions as to the form and content of planning schemes;[footnote 265]

§ Preparing and approving the Victoria Planning Provisions and amendments to the Victoria Planning Provisions;[footnote 266]

§ Developing the State Planning Policy Framework;

§ Preparing planning schemes and planning scheme amendments;[footnote 267]

§ Authorising and approving planning scheme amendments;[footnote 268]

§ Amending a planning scheme with exemption from notice requirements;[footnote 269]

§ Exempting a planning authority from notice requirements;[footnote 270]

§ Expediting an amendment to a planning scheme;[footnote 271] and

§ Deciding permit applications in the Alpine Resorts area, and some use and development in the City of Melbourne.[footnote 272]

The Minister for Planning is also empowered under the Planning and Environment Act to 'call-in' a planning permit application yet to be decided by a local council under section 97B of the Act..[footnote 273] Section 97B states that the Minister may direct a responsible authority to refer the application to him or her if it appears to the Minister—

a) that the application raises a major issue of policy and that the determination of the application may have a substantial effect on the achievement or development of planning objectives; or

b) that the decision on the application has been unreasonably delayed to the disadvantage of the applicant; or

c) that the use or development to which the application relates is also required to be considered by the Minister under another Act or regulation and that consideration would be facilitated by the referral of the application to the Minister.

A responsible authority may also request that the Minister decide an application.[footnote 274]

The Victorian Civil and Administrative Tribunal Act empowers the Minister for Planning to 'call in' a matter before VCAT.[footnote 275] The call in power applies to a proceeding for review of a decision under the Planning and Environment Act if the Minister considers that—

(a) the proceeding raises a major issue of policy; and

(b) the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.[footnote 276]

The Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note 'sets out the circumstances in which the Minister will consider exercising those powers of intervention and the principles that will apply in considering a request for intervention'.[footnote 277] Recent Ministerial interventions are listed on the Department of Planning and Community Development's website.[footnote 278]

The Department of Planning and Community Development

The Department of Planning and Community Development 'advises and supports' the Minister for Planning.[footnote 279] The Department, together with local councils and other stakeholders, works 'to deliver State Government policies and programs', including assessing planning scheme amendments and providing planning advice and strategic guidance.[footnote 280] The Department also has responsibly for 'introducing performance reporting and quality assurance' and developing the new metropolitan planning strategy.[footnote 281]


Local councils

The local council is usually the responsible authority for administering the planning scheme in its municipality and for issuing planning permits. The local council is also usually the planning authority for the purposes of preparing planning scheme amendments for any planning scheme in force in its municipal district. [footnote 282]

Public authorities

Public authorities may be referral authorities under a planning scheme, or may be appointed a planning authority by the Minister for Planning. Public authorities also have the right to make submissions in relation to relevant planning scheme amendments and planning permit applications.

As planning authorities

Public authorities may be planning authorities for the purposes of amending a planning scheme. The Minister may authorise any public authority to prepare an amendment to a planning scheme under section 9 of the Planning and Environment Act.

As referral authorities

The Planning and Environment Act provides that a responsible authority must give a copy of an application to every person or body that the planning scheme specifies as a referral authority for that type of application.[footnote 283] The planning scheme identifies referral authorities in clause 66. For example, for applications that relate to particular types of native vegetation, the referral authority is the Department of Sustainability and Environment. Other examples of referral authorities include: VicRoads; the Environment Protection Authority; and the Country Fire Authority.[footnote 284]

Planning Panels Victoria

Planning Panels Victoria, located within the Department of Planning and Community Development, is responsible for the administration of planning panels and advisory committees.[footnote 285] A planning panel may be established under the Planning and Environment Act to hear submissions about planning scheme amendments, or under the Environment Effects Act to hear submissions in relation to an Environment Effects Statement. A planning panel may also be appointed by the Minister for Planning to consider planning permits called in by the Minister.[footnote 286] Planning panels make recommendations and provide advice about whether a planning scheme amendment should proceed.[footnote 287] Planning panels are advisory only, with the final decision made by the Minister or appropriate statutory body.[footnote 288]

The Minister for Planning may also establish advisory committees to 'advise on any matters which the Minister refers to them'.[footnote 289] Some examples include:

§ Proposals for a specific site, usually for a particular development of that site;

§ To review planning controls or policy that does not necessarily apply to a particular site or area, for example, car parking controls and planning provisions; and

§ Matters called-in by the Minister for Planning from the Planning Division of the Victorian Civil and Administrative Tribunal, known as Appeal call-ins.[footnote 290]

Victorian Civil and Administrative Tribunal (VCAT)

The Victorian Civil and Administrative Tribunal (VCAT) was established under the Victorian Civil and Administrative Tribunal Act 1998. The President of VCAT is a Supreme Court Judge. Applications to VCAT are heard by VCAT Members, who have 'a broad range of specialised skills and qualifications', and include legal and planning professionals.[footnote 291] The Planning and Environment List, in VCAT's Administrative Division, deals with applications from people seeking review of government decisions that affect them (such as decisions on planning permits) and disputes arising under the Planning and Environment Act.[footnote 292] The Planning and Environment List hears the following types of cases:

§ Review brought by an applicant of a decision by a council to refuse a permit;

§ Review brought by an objector of a decision by a council to grant a permit;

§ Review of a failure by a council to decide a permit application within the statutory time period;

§ Review of conditions included by a council in a planning permit;

§ Review of a decision by a council to refuse to extend the time in which a development in a planning permit must be started or completed.[footnote 293]

VCAT may also consider requests to amend or cancel a planning permit, and issue enforcement orders (see Chapter 4 for further information on planning enforcement).[footnote 294]

The Supreme Court of Victoria

Any party to a VCAT proceeding may appeal a VCAT decision to the Supreme Court, provided that it relates to a question of law.[footnote 295]


Chapter Six

Public Participation in the Planning System

The Planning and Environment Act provides for a range of opportunities for the public to participate in the planning system, in both the planning scheme amendment process and the planning permit process. This chapter provides a brief summary of these opportunities.

Public participation in the planning scheme amendment process

Notice requirements

Notice must be given to owners and occupiers of land that the planning authority 'believes may be materially affected by the amendment'.[footnote 296] The Department of Planning and Community Development suggest that this would include 'anyone whose land is subject to changed controls under the amendment and might include owners and occupiers of adjoining or nearby land'.[footnote 297] Copies of the amendment must be made publicly available for inspection at the office of the planning authority.[footnote 298] Notice of the amendment must also be published in a newspaper.[footnote 299]

Making submissions

Any person may make a submission to the planning authority 'about an amendment' for which notice has been given.[footnote 300] Copies of the submissions must be made publicly available for inspection.[footnote 301] Section 22 of the Planning and Environment Act provides that all submissions made by the due date must be considered by the planning authority.

Submissions may also be referred to a planning panel for consideration.[footnote 302] The Act provides that a panel 'must consider all submissions referred to it' and must 'give a reasonable opportunity to be heard to any person who has made a submission referred to it'.[footnote 303]

Review of planning authority decisions

Section 39 of the Planning and Environment Act provides that a person who is 'substantially or materially affected' by a failure of the Minister, planning authority or planning panel to comply with certain procedural requirements[footnote 304] in relation to a planning scheme amendment, may refer the matter to VCAT. The referral to VCAT must occur before the amendment is approved by the Minister and no later than one month after the person becomes aware of the failure.[footnote 305]

Public participation in the planning permit process

Notice requirements

The responsible authority is generally required to give notice of a permit application to owners and occupiers of adjoining land, and any other person whom the responsible authority considers 'may incur material detriment' as a result of a proposal.[footnote 306] For the latter, notice may be given by placing a sign on the land concerned; by publishing a notice in a newspaper circulating in the area; by giving the notice personally or sending it by post; or in any other way that the responsible authority considers appropriate.[footnote 307] Proposals are to be advertised for a minimum of 14 days.[footnote 308] The Act also provides that a planning scheme may set out classes of permit applications that are exempt from notice requirements.[footnote 309]

Objections to permit applications

The Planning and Environment Act provides that 'any person who may be affected by the grant of the permit may object to the grant of a permit' (an 'objector').[footnote 310]

An objection must be made in writing and must state the reasons for the objection and how the objector would be affected by the grant of the permit.[footnote 311] A responsible authority may, however, reject an objection if it considers the objection 'has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector'.[footnote 312] The responsible authority must make copies of every objection available at its office for public inspection.[footnote 313]

Section 64 of the Planning and Environment Act provides that if the council decides to grant a permit where there were objections, it must notify the objectors of its decision to grant a permit. The permit must not be issued until the end of the period within which an objector may apply to VCAT for a review of the decision. If the objector applies to VCAT, the permit cannot be issued until VCAT has determined the matter or the application has been withdrawn.[footnote 314] The Act also provides that a planning scheme may set out classes of applications the decisions on which are exempted from these requirements.[footnote 315]

Review of responsible authority decisions

An objector may apply to VCAT for review of a decision of the responsible authority to grant a permit.[footnote 316] The Planning and Environment Act provides that a planning scheme may set out classes of applications for permits the decisions on which are exempted from this provision.[footnote 317] 
 
The Act also provides that 'any person who is affected' may apply to VCAT for leave to apply for review of a decision to grant a permit 'in any case in which a written objection to the grant of the permit was received by the responsible authority'.[footnote 318] VCAT must give the applicant for the permit, the responsible authority and the affected person an opportunity to be heard before making a decision as to whether leave will be granted (unless the applicant for the permit consents to the request for leave to apply for review).[footnote 319]
 

Chapter Seven

Section 173 Agreements

This chapter provides a brief overview of section 173 agreements, including who can enter into such an agreement, the form and content of agreements, and how they can be amended and enforced.

What is a section 173 agreement?

Section 173 of the Planning and Environment Act empowers a responsible authority to enter into an agreement with an owner, or anticipated owner, of land in order to place conditions on the use or development of land, restrict the use or development of land, or achieve other planning objectives in relation to that land.[footnote 320] These are called section 173 agreements.

A section 173 agreement is a 'legal contract'. A key advantage of a section 173 agreement, in comparison to a condition on a planning permit, is that it can be registered over the title to the land so that the obligations in the agreement bind all future land owners.[footnote 321] Furthermore, a section 173 agreement can continue to operate and impose restrictions on land even if the need for a permit has ceased or the need to operate under that permit no longer exists.[footnote 322]

The Planning and Environment Act sets out the form and content of agreements in section 174, and provides that an agreement must 'bind the owner to the covenants specified in the agreement'.[footnote 323] The responsible authority may apply to the Registrar of Titles to register the agreement.[footnote 324]

A section 173 agreement must not, however, breach a planning scheme. This means that an agreement cannot request or allow anything to be done that would breach a planning scheme or planning permit.[footnote 325] For example, an agreement cannot authorise a land use prohibited in that area by the planning scheme. It may, however, impose more restrictive provisions than those in the planning scheme.[footnote 326]

According to the Department of Planning and Community Development, a section 173 agreement should not be used if the responsible authority's planning objectives can be met through the application of permit conditions.[footnote 327]

Who can enter into a section 173 agreement?

A section 173 agreement must be between the responsible authority and the owner, or anticipated owner, of the relevant land.[footnote 328] Additional parties may jointly enter into the agreement, such as a planning authority, referral authority or developer.[footnote 329]

What can a section 173 agreement provide for?

The Planning and Environment Act states that an agreement may provide for any one or more of the following matters:

a) the prohibition, restriction or regulation of the use or development of the land;

b) the conditions subject to which the land may be used or developed for specified purposes;

c) any matter intended to achieve or advance-

i. the objectives of planning in Victoria; or

ii. the objectives of the planning scheme or any amendment to the planning scheme of which notice has been given under section 19;

d) any matter incidental to any one or more of the above matters.[footnote 330]

Section 173 agreements have been used in a variety of circumstances, including:

§ to coordinate development with adjoining landowners or other authorities;

§ to provide for staged developments;

§ to rehabilitate property or the natural environment;

§ to protect heritage, neighbourhood character or vegetation;

§ to provide for community infrastructure or specific development infrastructure, such as open space or facilities;

§ to secure developer contributions;

§ to restrict a change of land use, or abandon existing use rights; and

§ to limit future development.[footnote 331]

The Planning and Environment Act also authorises a planning scheme to expressly provide that a use or development of land is conditional on an agreement being entered into.[footnote 332] For example, planning schemes provide that in certain circumstances, in order to grant a permit for a subdivision in a Farming Zone, an agreement must be entered into that restricts any further subdivision.[footnote 333]

Amendment of section 173 agreements

With the approval of the Minister for Planning, a section 173 agreement may be amended by agreement between the responsible authority and the person or persons bound by any covenant in the agreement.[footnote 334]

Enforcement of section 173 agreements

A section 173 agreement can be enforced in the same way as a permit condition or planning scheme (see Chapter 4). Contractual remedies may also be available to enforce the agreement if provisions are not complied with.[footnote 335]


Chapter Eight

Summary of Recent Reforms

This chapter provides a brief summary of the recent legislative amendments made to the Planning and Environment Act and current reforms of the planning system.

Legislative changes

The Planning and Environment Act has been recently amended by the following Acts:

Planning and Environment Amendment (General) Act 2013

The Planning and Environment Amendment (General) Bill 2012 was introduced on 29 August 2012. It received royal assent on 19 February 2013, however, provisions in the Act have not yet come into operation. The Act provides that if a provision of the Act does not come into operation before 28 October 2013, it will come into operation on that day.[footnote 336] The Act made a range of amendments to the Planning and Environment Act, including:

§ abolishing Development Assessment Committees;

§ establishing the Planning Application Committee;

§ introducing two types of referral authorities: 'determining' and 'recommending' authorities; and

§ introducing timelines for the authorisation of a planning scheme amendment by the Minister (10 days) or it will be deemed to be authorised.

For further information on the amendments, refer to the Parliamentary Library's Research Brief, 'Planning and Environment Amendment (General) Bill 2012'.[footnote 337]

Planning and Environment Amendment (VicSmart Planning Assessment) Act 2012

The Planning and Environment Amendment (VicSmart Planning Assessment) Bill was introduced on 7 June 2012. It received royal assent on 18 September 2012, however, provisions in the Act have not yet come into operation. The Act provides that if a provision of the Act does not come into operation before 20 May 2013, it will come into operation on that day.[footnote 338] The Act establishes a new assessment process for specified planning permit applications, aiming to reduce the processing time for straightforward, low impact planning permit applications. The new process is explained further in Chapter 3. For more information on the amendments, refer to the Parliamentary Library's Research Brief, 'Planning and Environment Amendment (VicSmart Planning Assessment) Bill 2012'.[footnote 339]

Planning and Environment Amendment (Schools) Act 2012

The Planning and Environment Amendment (Schools) Bill 2011 was introduced on 25 October 2011. The provisions came into operation on 15 February 2012. The Act provides that subdivisions of land used or to be used for schools, or carrying out building work relating to a school, will not be an action which will give rise to the liability to pay a growth areas infrastructure contribution. For more information, refer to the Parliamentary Library's Research Brief, 'Planning and Environment Amendment (Schools) Bill 2011'.[footnote 340]

Zone reforms

The Government is currently in the process of reforming the state-standard zones in the Victoria Planning Provisions.[footnote 341] The reforms propose to: delete nine existing zones, create five new zones and amend 12 existing zones.[footnote 342] According to the Department of Planning and Community Development, the reforms seek to:

§ simplify requirements;

§ allow a broader range of activities to be considered; and

§ improve the range of zones to better manage growth.[footnote 343]

Public comment was sought on the proposed zone reforms, which was requested by 28 September 2012. Over 2,000 submissions were received.[footnote 344] The Minister for Planning appointed an Advisory Committee to review these submissions, and provide advice to the government about the final form of the proposed zones, how they should be introduced, and 'recommend a set of criteria to help determine the appropriate application of the reformed residential zones'.[footnote 345] The Committee has provided a progress report to the Minister on the reformed residential zones which has recently been responded to by the Government. The vast majority of the 21 committee recommendations were agreed to by the Government.[footnote 346]

The existing Residential 1 Zone, Residential 2 Zone and Residential 3 Zone are to be replaced by three new residential zones: the Residential Growth Zone; the General Residential Zone and the Neighbourhood Residential Zone.[footnote 347] There are also changes to the existing Mixed Use Zone, Township Zone and Low Density Residential Zone, to align them with the features of the new residential zones.

Key changes supported by the Government include the following:

§ setting a mandatory building height of 8 metres in the Neighbourhood Residential Zone (Rec 5)

§ improved purpose statements for the zones (Rec 10)

§ testing draft criteria to guide the application of the new zones (Rec 18)

§ restricting non-residential uses in the Neighbourhood Residential Zone and the General Residential Zone

§ allowing small-scale complementary commercial uses in the Residential Growth Zone.[footnote 348]

According to the Department of Planning and Community Development, it will conduct a series of workshops with councils and other stakeholders to test the implementation criteria for the new residential zones before they are implemented into the Victoria Planning Provisions (VPP).[footnote 349]

Councils will have 12 months from when the VPP are amended to introduce the reformed zones into their local planning schemes. If a council chooses not to implement the new residential zones to residential land within their municipality after this period, the General Residential Zone will be applied to all residential land.[footnote 350]

New Metropolitan Strategy

A new 'Metropolitan Planning Strategy' is currently being developed for Melbourne.[footnote 351] A discussion paper has been released for public comment by the Victorian Coalition Government's Ministerial Advisory Committee. Feedback on the Discussion Paper closes on Thursday 28 March 2013. A draft strategy 'is expected to be released for comment in Autumn 2013'.[footnote 352]

Key Terms

The following documents contain a glossary explaining key planning terms:

§ Municipal Association of Victoria (2012) Land Use Planning in Victoria, Melbourne, MAV (see pp 51-52);

§ Department of Planning and Community Development (date unknown) 'Glossary', Using Victoria's Planning System, Melbourne, DPCD, viewed 11 February 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/41281/Glossary.pdf>;

§ Department of Planning and Community Development (2008) Planning: A Short Guide, Melbourne, DPCD, (see p. 33) viewed 2 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41267/Planning_-_a_Short_Guide.pdf>.

Further reading

For a more detailed explanation of the planning instruments and procedures outlined in this paper, see:

§ Planning and Environment Act 1987 (Vic);

§ Department of Planning and Community Development (2012) Using Victoria's Planning System, Melbourne, DPCD, viewed 11 February 2013, http://www.dpcd.vic.gov.au/planning/theplanningsystem/a-guide-to-the-planning-system;

§ Department of Planning and Community Development (2008) Planning: A Short Guide, Melbourne, DPCD, viewed 2 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41267/Planning_-_a_Short_Guide.pdf>.

§ D. Eccles & T. Bryant (2011) Statutory Planning in Victoria, 4th edition, Sydney, Federation Press.

§ Municipal Association of Victoria (2012) Land Use Planning in Victoria, Melbourne, MAV.


References

Relevant Legislation

Environment Effects Act 1978 (Vic)

Planning and Environment Act 1987 (Vic)

Planning and Environment Regulations 2005 (Vic)

Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Relevant Cases

Australian Conservation Foundation v Minister for Planning [footnote 2004] VCAT 2029.

Coastal Estates Pty Ltd v Bass Coast SC & Ors [footnote 2010] VCAT 1807.

McDonald's Australia Pty Ltd v Yarra Ranges SC [footnote 2012] VCAT 1539.

Works cited

Bayside City Council (2012) Bayside Planning Scheme, Melbourne, DPCD, viewed 3 December 2012, <http://planningschemes.dpcd.vic.gov.au/bayside/home.html>.

Buloke Shire Council (2012) Buloke Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, <http://planningschemes.dpcd.vic.gov.au/buloke/home.html>.

Butt, P (ed) (2004) Butterworths Concise Australian Legal Dictionary, 3rd ed., LexisNexis Butterworths.

Cardinia Shire Council (2012) Cardinia Planning Scheme, Melbourne, DPCD, viewed 3 December 2012,

<http://planningschemes.dpcd.vic.gov.au/cardinia/ordinance/22_lpp04_card.pdf>.

Department of Infrastructure (2000) Victoria Planning Provisions Practice Note: Incorporated and Reference Documents, August, DOI, Melbourne, viewed 6 February 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0015/41712/928_VPP_Inc_and_Ref_doc.pdf>.

Department of Planning and Community Development (2013) 'Fees under the Planning and Environment Act', DPCD website, viewed 18 February 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/legislation-and-regulations/fees>.

Department of Planning and Community Development (2013) 'Get Involved', 18 February, Plan Melbourne website, viewed 18 February 2013,

<http://www.planmelbourne.vic.gov.au/getinvolved>.

Department of Planning and Community Development (2013) 'Our Ministers', DPCD website, viewed 8 January 2013, <http://www.dpcd.vic.gov.au/home/about/our-ministers>.

Department of Planning and Community Development (2013) 'Planning and Subdivision Regulations' DPCD website, viewed 18 February 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/legislation-and-regulations/regulations>.

Department of Planning and Community Development (2012) 'Reformed Zones for Victoria: Reformed Residential Zones An Update March 2013', fact sheet, DPCD, viewed 19 march 2013, <http://www.dpcd.vic.gov.au/planning/theplanningsystem/improving-the-system/new-zones-for-victoria/new-and-reformed-residential-zones>.

Department of Planning and Community Development (2012) 'About Planning in DPCD', DPCD website, viewed 8 January 2013,

<http://www.dpcd.vic.gov.au/planning/about>.

Department of Planning and Community Development (2012) 'Ministerial Directions' DPCD website, viewed 7 November 2012,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/the-role-of-the-minister/ministerial-directions>.

http://www.dpcd.vic.gov.au/planning/plansandpolicies/planningformelbourne/planninghistory/melbourne2030#report >.

Department of Planning and Community Development (2012) 'Ministerial interventions in planning scheme amendments', DPCD website, viewed 14 January 2013, <http://www.dpcd.vic.gov.au/planning/planningschemes/changingtheplanningscheme/ministerialinterventions>.

Department of Planning and Community Development (2012) 'Ministerial Interventions in Permit Applications', DPCD website, viewed 11 December 2012,

http://www.dpcd.vic.gov.au/planning/planningapplications/Ministerial-lnterventions-in-permit-applications#permit>.

Department of Planning and Community Development (2012) Reformed Zones for Victoria: A discussion paper on reforming Victoria's planning zones, Melbourne, DPCD, viewed 7 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0011/111233/Reformed-Zones-for-Victoria-Discussion-Paper.pdf>.

Department of Planning and Community Development (2012) 'Residential Development', DPCD website, viewed 11 February 2013,

<http://www.dpcd.vic.gov.au/planning/planningapplications/moreinformation/residential-development>.

Department of Planning and Community Development (2012) 'Steps in the amendment process', DPCD website, viewed 12 December 2012,

<http://www.dpcd.vic.gov.au/planning/planningschemes/changingtheplanningscheme/process-guide-for-planning-scheme-amendments>.

Department of Planning and Community Development (2012) 'Planning Panels Victoria', 29 October, DPCD website, viewed 19 February 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/planningpanelsvictoria>.

Department of Planning and Community Development (2012) 'Types of panels and committees', DPCD website, viewed 8 January 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/types-of-panels-and-committees>.

Department of Planning and Community Development (2012) Victoria Planning Provisions, 15 October, DPCD, Melbourne, viewed 12 November 2012,

<http://planningschemes.dpcd.vic.gov.au/vpps/>.

Department of Planning and Community Development (2012) VicSmart Fact Sheet, Melbourne, DPCD, viewed 2 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0009/108396/VicSmart-fact-sheet-3-Dec-2012.pdf>.

Department of Planning and Community Development (2012) 'The Framework for Planning Schemes: Victoria Planning Provisions', DPCD website, viewed 12 November 2012, <http://www.dpcd.vic.gov.au/planning/planningschemes/structure-of-a-planning-scheme/victoria-planning-provisions>.

Department of Planning and Community Development (2010) 'The Role of the Minister', DPCD website, viewed 14 January 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/the-role-of-the-minister/>.

Department of Planning and Community Development (2010) 'Structure of a planning scheme', DPCD website, viewed 12 November 2012,

http://www.dpcd.vic.gov.au/planning/planningschemes/structure-of-a-planning-scheme#howis>.

Department of Planning and Community Development (2008) Planning: A Short Guide, Melbourne, DPCD, viewed 2 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41267/Planning_-_a_Short_Guide.pdf>.

Department of Planning and Community Development (2008) General Practice Note: Strategic Assessment Guidelines for Planning Scheme Amendments, April, Melbourne, DPCD, viewed 15 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/41371/Strategic_Assessment_Guidelines.pdf>.

Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, Melbourne, DPCD, viewed 7 November 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/41272/Chapter-1-Planning-Schemes.pdf>.

Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, Melbourne, DPCD, viewed 11 December 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0017/41273/Chapter_2_Amendments.pdf>.

Department of Planning and Community Development (2007) 'Chapter 3: Planning Permits', Using Victoria's Planning System, Melbourne, DPCD, viewed 23 September 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0018/41274/Chapter_3_Planning_Permits.pdf>.

Department of Planning and Community Development (date unknown) 'Chapter 5: Planning Permits', Using Victoria's Planning System, Melbourne, DPCD, viewed 5 February 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0018/41274/Chapter_3_Planning_Permits.pdf>.

Department of Planning and Community Development (date unknown) 'Chapter 7: Enforcement', Using Victoria's Planning System, Melbourne, DPCD, viewed 12 February 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0004/41278/Chapter_7_-_Enforcement.pdf>.

Department of Planning and Community Development (date unknown) 'Chapter 8: Agreements', Using Victoria's Planning System, Melbourne, DPCD, viewed 9 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0005/41279/Chapter_8_-_Agreements.pdf>.

Department of Planning and Community Development (date unknown) 'Introduction to Victoria's Planning System', Using Victoria's Planning System, Melbourne, DPCD, viewed 7 November 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0015/41271/Introduction.pdf>.

Department of Planning and Community Development (date unknown) 'Planning on a Page: Planning Victoria's liveable communities together', Melbourne, DPCD, viewed 8 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0009/52578/Planning-on-a-page-poster-v2-7-Mar-2011.pdf>.

Department of Sustainability and Environment (2004) Ministerial Powers of Intervention in Planning and Heritage Matters, General Practice Note, November, Melbourne, DSE, viewed 18 December 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0010/41302/Ministerial_powers_of_intervention_in_planning_and_heritage_matters_Nov_2004.pdf>.

Eccles, D. & T. Bryant (2011) Statutory Planning in Victoria, 4th edition, Sydney, Federation Press.

Glen Eira City Council (2013) Glen Eira Planning Scheme, Melbourne, DPCD, viewed 4 February 2013, <http://planningschemes.dpcd.vic.gov.au/gleneira/home.html>.

Hobsons Bay City Council (2012) Hobsons Bay Planning Scheme, Melbourne, DPCD, viewed 11 February 2013,

<http://planningschemes.dpcd.vic.gov.au/hobsonsbay/home.html>.

Loddon Shire Council (2012) Loddon Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, <http://planningschemes.dpcd.vic.gov.au/loddon/home.html>.

Macedon Ranges Shire Council (2012) Macedon Ranges Planning Scheme, Melbourne, DPCD, viewed 11 February 2013,

<http://planningschemes.dpcd.vic.gov.au/macedonranges/home.html>.

Merner, B., C. Ross, B. Lesman & A. Delacorn (2012) 'Planning and Environment Amendment (General) Bill 2012', Research Brief, no. 7, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013,

<http://library.parliament.vic.gov.au/research/papers/pdfs/2012_07_planning_and_environment_amendment.pdf>.

Merner, B,. K. Richardson (2012) 'Planning and Environment Amendment (VicSmart Planning Assessment) Bill 2012', Research Brief, no. 4, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013,

<http://library.parliament.vic.gov.au/research/papers/pdfs/2012_04DBplanvicsmart.pdf>.

Merner, B., A. Delacorn, K. Richardson & C. Ross (2011) 'Planning and Environment Amendment (Schools) Bill 2012', Research Brief, no. 13, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013,

<http://library.parliament.vic.gov.au/research/papers/pdfs/2011_13DBPlanningenvironmentamendment.pdf>.

Monash City Council (2012) Monash Planning Scheme, clauses 22.01-22.10, Melbourne, DPCD, viewed 3 December 2012,

<http://planningschemes.dpcd.vic.gov.au/monash/home.html>.

Municipal Association of Victoria (2012) Land Use Planning in Victoria, Melbourne, MAV.

State Government of Victoria (2012) 'Metropolitan Planning Strategy: A Vision for Victoria', Metropolitan Planning Strategy website, viewed 11 December 2012, <http://www.planmelbourne.vic.gov.au/>.

Yarra Ranges Shire Council (2011) 'Agenda Item no. 8.1', Yarra Ranges Shire Council Agenda – 11 October.

Yarra Ranges Shire Council (2011) Yarra Ranges Shire Council Minutes - 11 October.

Victorian Civil and Administrative Tribunal (2013) 'Planning and Environment' VCAT website, viewed 13 February 2013, <http://www.vcat.vic.gov.au/disputes/planning-and-environment>.

Victorian Civil and Administrative Tribunal (2013) 'Who are we', VCAT website, viewed 14 January 2013, <http://www.vcat.vic.gov.au/about-vcat/who-we-are-0>.

Victorian Planning System Ministerial Advisory Committee (2011) Initial Report, Melbourne, DPCD, viewed 2 January 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/current/vpsmac>.


© 2013 Library, Department of Parliamentary Services, Parliament of Victoria

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of Parliamentary Services, other than by Members of the Victorian Parliament in the course of their official duties.

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This paper has been prepared by the Research Service for use by Members of the Victorian Parliament. The Service prepares briefings and publications for Parliament in response to Members, and in anticipation of their requirements, undertaking research in areas of contemporary concern to the Victorian legislature. While it is intended that all information provided is accurate, it does not represent professional legal opinion.

Research publications present current information as at the time of printing. They should not be considered as complete guides to the particular subject or legislation covered. The views expressed are those of the author(s).

Authors

Kristin Richardson & Bronwen Merner

Research Officers

Victorian Parliamentary Library

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[footnote 1] Planning and Environment Act 1987 (Vic) s 1.

[footnote 2] Department of Planning and Community Development (date unknown) 'Introduction to Victoria's Planning System', Using Victoria's Planning System, Melbourne, DPCD, p. 1, viewed 7 November 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0015/41271/Introduction.pdf>; Municipal Association of Victoria (2012) Land Use Planning in Victoria: A Guide for Councillors 2012, Melbourne, MAV, p. 14.

[footnote 3] See: Planning and Environment Act, ss 202-203. Also see: Planning and Environment Regulations 2005.

[footnote 4] Department of Planning and Community Development (2013) 'Planning and Subdivision Regulations' DPCD website, viewed 18 February 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/legislation-and-regulations/regulations>.

[footnote 5] ibid. For a list of fees, see, for example: Department of Planning and Community Development (2013) 'Fees under the Planning and Environment Act', DPCD website, viewed 18 February 2013, <http://www.dpcd.vic.gov.au/planning/theplanningsystem/legislation-and-regulations/fees>.

[footnote 6] Planning and Environment Act, s 7(6).

[footnote 7] Planning and Environment Act, s 12(2)(a).

[footnote 8] Planning and Environment Act, s 46M.

[footnote 9] For an up to date list, see: Department of Planning and Community Development (2012) 'Ministerial Directions', 25 October, DPCD website, viewed 7 November 2012,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/the-role-of-the-minister/ministerial-directions>.

[footnote 10] Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, Melbourne, DPCD, p. 1, viewed 7 November 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/41272/Chapter-1-Planning-Schemes.pdf>.

[footnote 11] Department of Planning and Community Development (2012) 'The Framework for Planning Schemes: Victoria Planning Provisions', 23 August, DPCD website, viewed 12 November 2012,

<http://www.dpcd.vic.gov.au/planning/planningschemes/structure-of-a-planning-scheme/victoria-planning-provisions>.

[footnote 12] Planning and Environment Act, s 4B(1).

[footnote 13] Planning and Environment Act, s 4B(2).

[footnote 14] Planning and Environment Act, s 4C.

[footnote 15] Planning and Environment Act, s 4D.

[footnote 16] D. Eccles & T. Bryant (2011) Statutory Planning in Victoria, 4th edition, Sydney, Federation Press, p. 77.

[footnote 17] Department of Planning and Community Development (2012) Victoria Planning Provisions, Melbourne, DPCD, viewed 12 November 2012, <http://planningschemes.dpcd.vic.gov.au/vpps/>.

[footnote 18] See: Planning and Environment Act, Part 2. Also see: Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 1.

[footnote 19] Planning and Environment Act, s 4(2)(b).

[footnote 20] See: Department of Planning and Community Development (2013) Planning Schemes Online, Melbourne, DPCD, viewed 11 February 2013 <http://planningschemes.dpcd.vic.gov.au/index.html>.

[footnote 21] Department of Planning and Community Development (2012) 'Get Information about your Planning Scheme', DPCD website, viewed 11 February 2013, <http://www.dpcd.vic.gov.au/planning/planningschemes/get-information>.

[footnote 22] Department of Planning and Community Development (2010) 'Structure of a planning scheme', 14 September, DPCD website, viewed 12 November 2012,

http://www.dpcd.vic.gov.au/planning/planningschemes/structure-of-a-planning-scheme#howis>.

[footnote 23] Municipal Association of Victoria (2012) op. cit., p. 25.

[footnote 24] Or whether or not a land use is prohibited.

[footnote 25] Municipal Association of Victoria, op. cit., p. 9.

[footnote 26] ibid.

[footnote 27] Planning and Environment Act, s 7(4)(b)(ii).

[footnote 28] Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 1; Department of Planning and Community Development (date unknown) 'Planning on a Page: Planning Victoria's Liveable Communities Together', Melbourne, DPCD, p. 2, viewed 8 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0009/52578/Planning-on-a-page-poster-v2-7-Mar-2011.pdf>.

[footnote 29] The responsible authority is identified in the planning scheme in clause 61.01 and the schedule to clause 61.01. While each local government area in Victoria is covered by a planning scheme, some special planning areas may also be covered by a planning scheme (i.e. Alpine Resorts).

[footnote 30] Note that exemptions may be provided by a Governor in Council Order published in the Government Gazette. See: Planning and Environment Act, s 16; Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 2.

[footnote 31] Planning and Environment Act, ss 7(1)(a), 7(2).

[footnote 32] if the scheme applies to a municipal district. See: Planning and Environment Act 1987 (Vic) ss 7(1)(b), 7(3). Also see: s 6(1), which requires that a planning scheme must seek to further the objectives of planning in Victorian within the area covered by the scheme.

[footnote 33] Planning and Environment Act, s 6(1)(b).

[footnote 34] Planning and Environment Act, s 6(2).

[footnote 35] Based on Figure 1.1: Components of a planning scheme, in: Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 6.

[footnote 36] Figure 1.1: Components of a planning scheme, in: Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 6.

[footnote 37] Department of Infrastructure (2000) Victoria Planning Provisions Practice Note: Incorporated and Reference Documents, August, Melbourne, DOI p. 3, viewed 6 February 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0015/41712/928_VPP_Inc_and_Ref_doc.pdf>.

[footnote 38] Victoria Planning Provisions, User Guide: p. 2.

[footnote 39] ibid., cl 10.01. Clause 10.04 of the State Planning Policy Framework states that planning and responsible authorities 'should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations'.

[footnote 40] ibid., cl 10.05.

[footnote 41] For example, policies relating to 'environmental and landscape values' include: biodiversity, native vegetation management, coastal areas, alpine areas, and significant environments and landscapes (see: cl 12).

[footnote 42] For example, Melbourne 2030 and Melbourne 2030: A planning update Melbourne @ 5 million. See: Department of Planning and Community Development (2012) 'Melbourne 2030' – Planning for Sustainable Growth', 10 December, DPCD website, viewed 11 December 2012,

http://www.dpcd.vic.gov.au/planning/plansandpolicies/planningformelbourne/planninghistory/melbourne2030#report>.

[footnote 43] A discussion paper has been prepared by the Victorian Coalition Government's Ministerial Advisory Committee and released for public comment. Submissions may be made until 28 March 2013. A draft strategy 'is expected to be released for comment in mid 2013'. See: Department of Planning and Community Development (2013) 'Get Involved', 18 February, Plan Melbourne website, viewed 18 February 2013, <http://www.planmelbourne.vic.gov.au/getinvolved>.

[footnote 44] Municipal Association of Victoria, op. cit., p. 9.

[footnote 45] Planning and Environment Act, s 7(4).

[footnote 46] Glen Eira City Council (2013) Glen Eira Planning Scheme, Melbourne, DPCD, viewed 4 February 2013, <http://planningschemes.dpcd.vic.gov.au/gleneira/home.html>.

[footnote 47] Macedon Ranges Shire Council (2012) Macedon Ranges Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, < http://planningschemes.dpcd.vic.gov.au/macedonranges/home.html>.

[footnote 48] Victoria Planning Provisions, cl 20.01; Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 7.

[footnote 49] Victoria Planning Provisions, cl 20.01.

[footnote 50] Planning and Environment Act, s 12A(3).

[footnote 51] And other planning or responsible authorities. Victoria Planning Provisions, cl 20.01.

[footnote 52] Within a year of the four-yearly Council Plan being approved. See: Municipal Association of Victoria, op. cit., p. 19; Planning and Environment Act, s 12B.

[footnote 53] Planning and Environment Act, s 12A(4).

[footnote 54] Victoria Planning Provisions, cl 20.02.

[footnote 55] ibid.

[footnote 56] ibid.

[footnote 57] ibid.

[footnote 58] For example, see: Monash City Council (2012) Monash Planning Scheme, clauses 22.01-22.10, Melbourne, DPCD, viewed 3 December 2012,

<http://planningschemes.dpcd.vic.gov.au/monash/home.html>.

[footnote 59] And other planning or responsible authorities. See: Victoria Planning Provisions, cl 20.02.

[footnote 60] Cardinia Shire Council (2012) Cardinia Planning Scheme, cl 22.04, Melbourne, DPCD, viewed 3 December 2012, <http://planningschemes.dpcd.vic.gov.au/cardinia/ordinance/22_lpp04_card.pdf>.

[footnote 61] Eccles & Bryant, op. cit., p. 56. Also see: Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 8.

[footnote 62] Municipal Association of Victoria, op. cit., p. 24.

[footnote 63] ibid.

[footnote 64] Eccles & Bryant, op. cit., pp. 56-57; also see: Victoria Planning Provisions, clauses 30-37.

[footnote 65] ibid., p. 57; Municipal Association of Victoria, op. cit., p. 24.

[footnote 66] For example, see: Monash City Council (2012) op. cit., Schedule to the Residential 1 Zone.

[footnote 67] Bayside City Council (2012) Bayside Planning Scheme, Melbourne, DPCD, viewed 3 December 2012, <http://planningschemes.dpcd.vic.gov.au/bayside/home.html>.

[footnote 68] Buloke Shire Council (2012) Buloke Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, <http://planningschemes.dpcd.vic.gov.au/buloke/home.html>.

[footnote 69] Municipal Association of Victoria, op. cit., p. 24.

[footnote 70] Section 3 of the Planning and Environment Act provides the following definition for 'land use': 'use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed'. For example, a land use could be a: dwelling, shop, place of worship, hotel, art gallery, car wash, etc. Definitions of land use terms are contained in clause 74 of the planning scheme and Victoria Planning Provisions.

[footnote 71] Works is defined in section 3 of the Planning and Environment Act and includes: 'any change to the natural or existing condition or topography of land' including the removal of trees, vegetation or topsoil.

[footnote 72] For example, see: City of Monash (2012)op. cit., cl 32.01.

[footnote 73] A 'dwelling' is defined in clause 74 as:

'A building used as a self-contained residence which must include:

a) a kitchen sink;

b) food preparation facilities;

c) a bath or shower; and

d) a closet pan and wash basin.

It includes out-buildings and works normal to a dwelling.'

[footnote 74] Or on a lot between 300 and 500 square metres if a schedule to the zone so specifies. See: Eccles & Bryant, op. cit., p. 58.

[footnote 75] Municipal Association of Victoria, op. cit., p. 24.

[footnote 76] ibid.

[footnote 77] Eccles & Bryant, op. cit., p. 60; also see: Victoria Planning Provisions, clauses 40-45.

[footnote 78] ibid., pp. 60-61.

[footnote 79] ibid., p. 61.

[footnote 80] Municipal Association of Victoria, op. cit., p. 24.

[footnote 81] ibid.

[footnote 82] ibid.

[footnote 83] Hobsons Bay City Council (2012) Hobsons Bay Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, <http://planningschemes.dpcd.vic.gov.au/hobsonsbay/home.html>.

[footnote 84] Loddon Shire Council (2012) Loddon Planning Scheme, Melbourne, DPCD, viewed 11 February 2013, <http://planningschemes.dpcd.vic.gov.au/loddon/home.html>.

[footnote 85] For a full list of particular provisions, see: Victoria Planning Provisions, clauses 50-57.

[footnote 86] Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 8.

[footnote 87] In addition to the general decision guidelines in clause 65. See: Victoria Planning Provisions, cl 52.02.

[footnote 88] In addition to the design principles in Clause 15.01-2 and the general decision guidelines in clause 65. See: ibid., cl 52.04.

[footnote 89] Department of Planning and Community Development (2012) 'Residential Development', DPCD website, viewed 11 February 2013,

<http://www.dpcd.vic.gov.au/planning/planningapplications/moreinformation/residential-development>.

[footnote 90] Clause 56 deals with residential subdivision provisions.

[footnote 91] ibid., cl 54.

[footnote 92] These provisions do not apply to an application to construct or extend a development of

four or more storeys, excluding a basemen. See: ibid., cl 55. The land use term 'residential building' is defined in clause 74 as: 'Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.'

[footnote 93] Municipal Association of Victoria, op. cit., p. 51.

[footnote 94] Department of Planning and Community Development (2010) 'Residential development provisions', 19 October, DPCD website, viewed 5 February 2013,

<http://www.dpcd.vic.gov.au/planning/planningapplications/moreinformation/residential-development/provisions>.

[footnote 95] Victoria Planning Provisions, cl 55.04-5.

[footnote 96] Municipal Association of Victoria, op. cit., p. 25.

[footnote 97] Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 8.

[footnote 98] i.e. the use of land for temporary portable land sales office located on the land for sale; a children's cubbyhouse; external lighting normal to a dwelling; buildings or works with an estimated cost of $1,000,000 or less carried out by or on behalf of a municipality; maintenance works carried out by a municipality or public authority to prevent or alleviate flood damage, etc (see clause 62 for the full list of uses, buildings, works, subdivisions and demolitions not requiring a planning permit).

[footnote 99] i.e. the planning scheme; the objectives of planning in Victoria; objections and other submissions received; comments from a referral authority; any significant environmental effects. See: Planning and Environment Act, s 60.

[footnote 100] Eccles & Bryant, op. cit., p. 65.

[footnote 101] Department of Planning and Community Development (2007) 'Chapter 1: Planning Schemes', Using Victoria's Planning System, op. cit., p. 3. Also see: Planning and Environment Act, ss 6(3). However, section 6(3) does not apply to a use of land which has stopped for a continuous period of two years; or which has stopped for two or more periods which together total two years in any period of three years; or in the case of a use which is seasonal in nature, if the use does not take place for two years in succession. See: Planning and Environment Act, s 6(4).

[footnote 102] Victoria Planning Provisions, cl 63.01.

[footnote 103] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, Melbourne, DPCD, viewed 11 December 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0017/41273/Chapter_2_Amendments.pdf>.

[footnote 104] Planning and Environment Act, ss 8, 8A.

[footnote 105] Authorisation and approval of the Minister is required for the preparation of an amendment to the VPP by anyone other than Minister. See: Planning and Environment Act, ss 4B, 4C.

[footnote 106] Planning and Environment Act, s 4J.

[footnote 107] Eccles & Bryant, op. cit., p. 77; Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 13.

[footnote 108] Municipal Association of Victoria, op. cit., p. 51.

[footnote 109] Section 8 of the Planning and Environment Act provides that the Minister for Planning is a planning authority and may prepare a planning scheme or planning scheme amendment for any municipal district or other area of Victoria. Section 9 of the Act provides that the Minister may authorise in writing any other Minister or public authority to prepare an amendment to a planning scheme. Note that restrictions and powers relating to the preparation of amendments are set out in section 10 of the Act.

[footnote 110] Planning and Environment Act, s 10(1) states: 'The power given to a planning authority to prepare an amendment to the State standard provisions of a planning scheme extends only to the inclusion of a provision in or deletion of a provision from the State standard provisions of the planning scheme.'

[footnote 111] Eccles & Bryant, op. cit., p. 77; Municipal Association of Victoria, op. cit., pp. 29.

[footnote 112] Department of Planning and Community Development (2012) 'Steps in the Amendment Process', DPCD website, viewed 12 December 2012,

<http://www.dpcd.vic.gov.au/planning/planningschemes/changingtheplanningscheme/process-guide-for-planning-scheme-amendments>.

[footnote 113] Victorian Planning System Ministerial Advisory Committee (2011) Initial Report, Melbourne, DPCD, p. 154, viewed 20 February 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/current/vpsmac>.

[footnote 114] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 2.

[footnote 115] ibid. Also see, Municipal Association of Victoria, op. cit., p. 31.

[footnote 116] Municipal Association of Victoria, op. cit., p. 29.

[footnote 117] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 6.

[footnote 118] Department of Planning and Community Development (2008) General Practice Note: Strategic Assessment Guidelines for Planning Scheme Amendments, April, Melbourne, DPCD, viewed 15 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/41371/Strategic_Assessment_Guidelines.pdf>.

[footnote 119] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 6.

[footnote 120] ibid., p. 3.

[footnote 121] ibid.

[footnote 122] Victoria, Legislative Assembly (2012) Debates, Book 12, 30 August, p. 3891.

[footnote 123] ibid.

[footnote 124] Planning and Environment Act, s 8A.

[footnote 125] Planning and Environment Act, s 8A(6).

[footnote 126] Victoria, Legislative Assembly (2012) Debates, Book 12, 30 August, p. 3891.

[footnote 127] ibid.

[footnote 128] Planning and Environment Act, s12(1)(e).

[footnote 129] The Hon. M. Guy (2011) Direction No. 11: Strategic Assessment of Amendments, Melbourne, Minister for Planning, viewed 18 December 2012,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/43216/dir11.pdf>.

[footnote 130] Department of Planning and Community Development (2008) Strategic Assessment Guidelines for Planning Scheme Amendments, op. cit.

[footnote 131] See: ibid., pp. 6-8.

[footnote 132] Planning and Environment Act, s 12(2). The Planning and Environment Amendment (General) Act 2013 amended section 12(2) to provide that social and economic effects must also be taken into account. See: Planning and Environment Amendment (General) Act 2013, s 71(2).

[footnote 133] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., pp. 6-7; Municipal Association of Victoria, op. cit., p. 9.

[footnote 134] Planning and Environment Act, s 17(1).

[footnote 135] Planning and Environment Act, s 18.

[footnote 136] Except persons entitled to be registered under the Transfer of Land Act 1958 (Vic) as proprietor of an estate in fee simple. The planning authority is not required to give notice of an amendment under subsection (1)(b) if it considers the number of owners and occupiers affected makes it impractical to notify them all individually about the amendment: Planning and Environment Act, s 19(1A). However the planning authority must take 'reasonable steps' to ensure that 'public notice of the proposed amendment is given in the area affected by the amendment; and that the notice states that owners and occupiers of land referred to in subsection (1)(b) are entitled to make submissions in accordance with sections 21 and 21A': Planning and Environment Act, s 19(1B). Section 19(1A) does not apply in relation to the giving of notice to an owner of land of an amendment which provides for the reservation of that land for public purposes; or the closure of a road which provides access to that land: Planning and Environment Act, s 19(1C).

[footnote 137] Section 8 of the Planning and Environment Regulations 2005 states that: 'For the purposes of section 19(1)(c) of the Act, the following are prescribed- any municipal council where it is not the planning authority and the amendment affects land within the municipal district for which that municipal council is responsible; the Minister administering the Conservation, Forests and Lands Act 1987; the Minister administering the Catchment and Land Protection Act 1994; the Minister administering the Sustainable Forests (Timber) Act 2004; the Minister administering the Mineral Resources Development Act 1990; the Minister administering the Extractive Industries Development Act 1995; and the Minister administering the Pipelines Act 1967.'

[footnote 138] Except persons entitled to be registered under the Transfer of Land Act as proprietor of an estate in fee simple.

[footnote 139] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 15.

[footnote 140] Planning and Environment Act, s 19(2).

[footnote 141] Planning and Environment Act, s 19(3).

[footnote 142] Planning and Environment Act, s 19(4).

[footnote 143] Planning and Environment Act, s 20(1).

[footnote 144] The Minister cannot exempt a planning authority from the requirement to give notice: to the owner of any land, of an amendment which provides for the reservation of that land for public purposes or the closure of a road which provides access to that land; or to any Minister prescribed under section 19(1)(c); or under section 19(2) or 19(3), if the amendment proposes a change to provisions relating to land set aside or reserved as public open space; or to the Minister administering the Land Act 1958 under section 19(1)(d).

[footnote 145] Planning and Environment Act, s 20(4).

[footnote 146] Department of Sustainability and Environment (2004) Ministerial Powers of Intervention in Planning and Heritage Matters, General Practice Note, November, Melbourne, DSE, p. 1, viewed 18 December 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0010/41302/Ministerial_powers_of_intervention_in_planning_and_heritage_matters_Nov_2004.pdf>.

[footnote 147] ibid, p. 2.

[footnote 148] Planning and Environment Act, s 21(1).

[footnote 149] Planning and Environment Act, ss 22(1), 22(3).

[footnote 150] Planning and Environment Act, s 22(2).

[footnote 151] Planning and Environment Act, s 21(2).

[footnote 152] Planning and Environment Act, s 23(1).

[footnote 153] Planning and Environment Act, s 23(2).

[footnote 154] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 24. Planning Panels Victoria is responsible for 'the appointment, administration and conduct of independent planning panels, advisory committees, Ministerial call-ins relating to planning permit applications' and inquiries under the Environment Effects Act 1978 (Vic). See: Department of Planning and Community Development (2012) 'Planning Panels Victoria', 29 October, DPCD website, viewed 19 February 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/planningpanelsvictoria>.

[footnote 155] Planning and Environment Act, s 24.

[footnote 156] Planning and Environment Act, ss 25(1), 25(2).

[footnote 157] Planning and Environment Act, s 26.

[footnote 158] See: Environment Effects Act, s 9.

[footnote 159] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 30.

[footnote 160] Municipal Association of Victoria, op. cit., p. 33. Also see: ibid.

[footnote 161] Ibid.; Planning and Environment Act, s 31.

[footnote 162] Planning and Environment Act, s 35(1).

[footnote 163] Planning and Environment Act, s 36(1).

[footnote 164] Planning and Environment Act, s 36(2).

[footnote 165] Planning and Environment Act, s 37.

[footnote 166] Planning and Environment Act, s 38(1); Eccles & Bryant, op. cit., p. 98.

[footnote 167] Planning and Environment Act, s 38(2).

[footnote 168] Planning and Environment Act, s 38(3).

[footnote 169] A failure to comply with Division 1 (exhibition and notice requirements for amendments), Division 2 (requirements relating to public submissions about an amendment), Division 3 (adoption and approval of amendment) or Part 8 of the Act (which deals with Panels). Department of Planning and Community Development (date unknown) 'Chapter 5: Reviews', Using Victoria's Planning System, Melbourne, DPCD, p. 17, viewed 5 February 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41276/Chapter_5_-_Reviews.pdf>.

[footnote 170] See, for example: Australian Conservation Foundation v Minister for Planning [footnote 2004] VCAT 2029.

[footnote 171] Planning and Environment Act, s 39(1).

[footnote 172] Eccles & Bryant, op. cit., p. 101; Department of Planning and Community Development (date unknown) 'Chapter 5: Reviews', Using Victoria's Planning System, op. cit., p. 17.

[footnote 173] Department of Planning and Community Development (date unknown) 'Chapter 5: Reviews', Using Victoria's Planning System, op. cit., p. 17.

[footnote 174] Municipal Association of Victoria (2012) op. cit., p. 42. See also: Planning and Environment Act, s 3.

[footnote 175] Victorian Planning System Ministerial Advisory Committee (2011) op cit., p. 128.

[footnote 176] Department of Planning and Community Development (2008) Planning: A Short Guide, Melbourne, DPCD, p. 6, viewed 2 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41267/Planning_-_a_Short_Guide.pdf>.

[footnote 177] Eccles & Bryant (2011) op. cit., p. 57.

[footnote 178] ibid., p. 25.

[footnote 179] Department of Planning and Community Development (2008) op. cit., p. 6.

[footnote 180] See: Planning and Environment Act, Part 4.

[footnote 181] Municipal Association of Victoria (2012) op. cit., p. 42.

[footnote 182] Eccles & Bryant (2011) op. cit., p. 57.

[footnote 183] Municipal Association of Victoria (2012) op. cit., p. 42.

[footnote 184] Eccles & Bryant (2011) op. cit., p. 104.

[footnote 185] ibid., p. 107.

[footnote 186] The VicSmart process will commence with the proclamation of the Planning and Environment Amendment (VicSmart Planning Assessment) Act 2012. The default commencement date for this Act is 20 May 2013, if not proclaimed before.

[footnote 187] Municipal Association of Victoria (2012) op. cit., p. 36.

[footnote 188] Victorian Planning System Ministerial Advisory Committee (2011) op. cit., p. 129.

[footnote 189] Department of Planning and Community Development (2007) 'Chapter 3: Planning Permits', Using Victoria's Planning System, Melbourne, DPCD, p. 10, viewed 23 September 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0018/41274/Chapter_3_Planning_Permits.pdf>.

[footnote 190] Victorian Planning System Ministerial Advisory Council (2011) op. cit., p. 66.

[footnote 191] Planning and Environment Act, s 55.

[footnote 192] See: Planning and Environment Act, s 61(2).

[footnote 193] By the Planning and Environment Amendment (General) Act 2013.

[footnote 194] See: Planning and Environment Amendment (General) Act 2013, ss 14 & 21.

[footnote 195] Planning and Environment Act, s 54.

[footnote 196] Planning and Environment Regulations 2005, r 20.

[footnote 197] Department of Planning and Community Development (2007) op. cit., p. 17.

[footnote 198] Department of Planning and Community Development (2008) op. cit., p. 12.

[footnote 199] For planning permit applications that involve a breach, removal or variation of a restrictive covenant, further notice requirements apply. See for example: Planning and Environment Act, s 52(1)(ca) & (cb).

[footnote 200] Municipal Association of Victoria (2012) op. cit., p. 37.

[footnote 201] Planning and Environment Act, s 57(1).

[footnote 202] Municipal Association of Victoria (2012) op. cit., p. 38.

[footnote 203] ibid.

[footnote 204] ibid., p. 39.

[footnote 205] These include: an approved regional strategy plan; an approved strategy plan; any relevant State environment protection policy declared in any Order; any other strategic plan, policy statement, guideline or code adopted by a Minister, government department, municipal council or public authority; a planning scheme adopted by the council but not yet approved by the Minister; a section 173 agreement; any other relevant matter. Currently, responsible authorities may also consider any significant social and economic effects of a proposed development, however, these will soon be mandatory considerations. Planning and Environment Act, s 60(1A).

[footnote 206] Municipal Association of Victoria (2012) op. cit., p. 39.

[footnote 207] Planning and Environment Act, s 61.

[footnote 208] Planning and Environment Act, s 64.

[footnote 209] Planning and Environment Act, s 65.

[footnote 210] The delegation power can be found in the Planning and Environment Act, s 188.

[footnote 211] The Planning Minister's consent is required before the Council can refer any matters, or delegate its decision-making authority, to the PAC.

[footnote 212] Planning and Environment Amendment (General) Act 2013, s 10. The Act will come into operation on a day or days to be proclaimed, or on 28 October 2013 (if not proclaimed earlier).

[footnote 213] For further information on the Planning and Environment Amendment (VicSmart Planning Assessment) Act 2012, see: B. Merner, K. Richardson (2012) 'Planning and Environment Amendment (VicSmart Planning Assessment) Bill 2012', Research Brief, no. 4, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013,

<http://library.parliament.vic.gov.au/research/papers/pdfs/2012_04DBplanvicsmart.pdf>.

[footnote 214] Department of Planning and Community Development (2013) 'VicSmart – A Simpler Planning Permit Process', DPCD website, viewed 2 January 2013,

http://www.dpcd.vic.gov.au/planning/theplanningsystem/legislation-and-regulations/vicsmart-planning-assessment-process#vic>.

[footnote 215] Department of Planning and Community Development (2012) VicSmart Fact Sheet, Melbourne, DPCD, viewed 2 January 2013, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0009/108396/VicSmart-fact-sheet-3-Dec-2012.pdf>.

[footnote 216] Municipal Association of Victoria (2012) op. cit., p. 39.

[footnote 217] ibid.

[footnote 218] Department of Planning and Community Development (2012) 'Ministerial Interventions in Permit Applications', DPCD website, viewed 11 December 2012,

http://www.dpcd.vic.gov.au/planning/planningapplications/Ministerial-lnterventions-in-permit-applications#permit>.

[footnote 219] Planning and Environment Act, s 97E.

[footnote 220] Municipal Association of Victoria (2012) op. cit., p. 44.

[footnote 221] ibid., p. 44.

[footnote 222] Planning and Environment Act, s 84B(1).

[footnote 223] Planning and Environment Act, s 84B(2).

[footnote 224] Planning and Environment Amendment (VicSmart Planning Assessment) Act 2012, s 9.

[footnote 225] Department of Planning and Community Development (2013) 'Ministerial Interventions in Permit Applications', DPCD website, viewed 3 January 2013,

http://www.dpcd.vic.gov.au/planning/planningapplications/Ministerial-lnterventions-in-permit-applications#appeal>.

[footnote 226] See: Victorian Civil and Administrative Tribunal Act, s 148.

[footnote 227] Yarra Ranges Shire Council (2011) 'Agenda Item no. 8.1', Yarra Ranges Shire Council Agenda – 11 October, p. 2.

[footnote 228] McDonald's Australia Pty Ltd v Yarra Ranges SC [footnote 2012] VCAT 1539, p. 4.

[footnote 229] Yarra Ranges Shire Council (2011) Yarra Ranges Shire Council Agenda – 11 October, op. cit., p. 24.

[footnote 230] ibid., p. 37.

[footnote 231] ibid., p. 25.

[footnote 232] Yarra Ranges Shire Council (2011) Yarra Ranges Shire Council Minutes - 11 October, pp. 5-7.

[footnote 233] ibid., p. 6.

[footnote 234] ibid.

[footnote 235] ibid.

[footnote 236] McDonald's Australia Pty Ltd v Yarra Ranges SC [footnote 2012] VCAT 1539, para 8.

[footnote 237] ibid., para 19.

[footnote 238] ibid., para 26.

[footnote 239] ibid., para 28.

[footnote 240] ibid., para 43.

[footnote 241] ibid., para 197.

[footnote 242] A division of the Councillors on the motion resulted in three votes of support, and six votes against. See: Yarra Ranges Shire Council (2012) Yarra Ranges Shire Council Minutes – 23 October, op. cit., p. 6.

[footnote 243] Section 173 agreements are explained in Chapter 7.

[footnote 244] Department of Planning and Community Development (date unknown) 'Chapter 7: Enforcement', Using Victoria's Planning System, Melbourne, DPCD, p. 1, viewed 12 February 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0004/41278/Chapter_7_-_Enforcement.pdf>.

[footnote 245] Eccles & Bryant, op. cit., p. 181. Also see: Planning and Environment Act, s 126.

[footnote 246] ibid.

[footnote 247] An enforcement order may be made against an owner or occupier of land, any other person who has an interest in the land, or any other person on whose behalf the use or development is being carried out. See: Planning and Environment Act, s 114(3).

[footnote 248] Planning and Environment Act, s 119(b).

[footnote 249] Planning and Environment Act, s 120.

[footnote 250] Planning and Environment Act, s 124.

[footnote 251] Eccles & Bryant, op. cit., pp. 183-4; Victorian Civil and Administrative Tribunal Act, s 133.

[footnote 252] Planning and Environment Act, s 125.

[footnote 253] Victorian Civil and Administrative Tribunal Act, s 123.

[footnote 254] And only by a judicial member of VCAT. See: Eccles & Bryant, op. cit., p. 186.

[footnote 255] Eccles & Bryant, op. cit.

[footnote 256] Planning and Environment Act, s 130. Section 126 of the Act makes it an offence to use or develop land in a way that contravenes a planning scheme, planning permit or section 173 agreement.

[footnote 257] Based on the 2012-2013 penalty unit value of $140.84. See: Office of the Chief Parliamentary Counsel (2012) 'Penalty and Fee Units', OCPC website, viewed 17 January 2013, <http://www.ocpc.vic.gov.au/CA2572B3001B894B/pages/faqs-penalty-and-fee-units>.

[footnote 258] Eccles & Bryant, op. cit.

[footnote 259] ibid., p. 187.

[footnote 260] Planning and Environment Act, s 38(1).

[footnote 261] Planning and Environment Act, s 38(2).

[footnote 262] Planning and Environment Act, ss 46AG-46AJ; see also: Eccles & Bryant, op. cit., pp. 98-99.

[footnote 263] Eccles & Bryant, op. cit., p. 98.

[footnote 264] Planning and Environment Act, ss 46A-46G; also see: ibid., p. 99.

[footnote 265] Planning and Environment Act, s 7(5).

[footnote 266] Planning and Environment Act, ss 4A-4C.

[footnote 267] Planning and Environment Act, s 8.

[footnote 268] For example, see: Planning and Environment Act, ss 8A, 11, 35.

[footnote 269] Department of Planning and Community Development (2010) 'The Role of the Minister', DPCD website, viewed 14 January 2013, <http://www.dpcd.vic.gov.au/planning/theplanningsystem/the-role-of-the-minister/>.

[footnote 270] Planning and Environment Act, s 20.

[footnote 271] Section 185A of the Planning and Environment Act provides that 'The Minister may by notice in writing direct a planning authority (the first planning authority) to take any steps required to be taken under Part 3 in respect of an amendment to a planning scheme within the time (being not less than 6 weeks) specified in the notice'. If the planning authority fails to take a required step within the specified time, the Minister becomes the planning authority in respect of the amendment and 'may take that step and all other required to be taken under Part 3'.

[footnote 272] See: Municipal Association of Victoria (2012) op. cit., p. 48; Melbourne Planning Scheme, cl 61; Alpine Resorts Planning Scheme, cl 61.

[footnote 273] Department of Sustainability and Environment (2004) op. cit., p. 1.

[footnote 274] Planning and Environment Act, s 97C.

[footnote 275] Victorian Civil and Administrative Tribunal Act , clause 58 of Schedule 1.

[footnote 276] Victorian Civil and Administrative Tribunal Act , clause 58(1) of Schedule 1.

[footnote 277] Department of Sustainability and Environment (2004) op. cit., p. 1.

[footnote 278] Department of Planning and Community Development (2012) 'Ministerial interventions in planning scheme amendments', DPCD website, viewed 14 January 2013,

<http://www.dpcd.vic.gov.au/planning/planningschemes/changingtheplanningscheme/ministerialinterventions>.

[footnote 279] Department of Planning and Community Development (2013) 'Our Ministers', DPCD website, viewed 8 January 2013, <http://www.dpcd.vic.gov.au/home/about/our-ministers>.

[footnote 280] Department of Planning and Community Development (2012) 'About Planning in DPCD', DPCD website, viewed 8 January 2013, <http://www.dpcd.vic.gov.au/planning/about>.

[footnote 281] ibid.

[footnote 282] Planning and Environment Act, s 8A.

[footnote 283] Planning and Environment Act, s 55.

[footnote 284] Victorian Planning System Ministerial Advisory Council (2011) op. cit., p. 66.

[footnote 285] Department of Planning and Community Development (2012) 'Planning Panels Victoria', op. cit.

[footnote 286] ibid.

[footnote 287] ibid.

[footnote 288] ibid.

[footnote 289] Planning and Environment Act, s 151.

[footnote 290] Department of Planning and Community Development (2012) 'Types of Panels and Committees', DPCD website, viewed 8 January 2013,

<http://www.dpcd.vic.gov.au/planning/panelsandcommittees/types-of-panels-and-committees>.

[footnote 291] Victorian Civil and Administrative Tribunal (2013) 'Who are we', VCAT website, viewed 14 January 2013, <http://www.vcat.vic.gov.au/about-vcat/who-we-are-0>; Municipal Association of Victoria (2012) op. cit., p. 44.

[footnote 292] Victorian Civil and Administrative Tribunal (2013) op. cit; Eccles & Bryant, op. cit.,, p. 147.

[footnote 293] Victorian Civil and Administrative Tribunal (2013) 'Planning and Environment' VCAT website, viewed 13 February 2013, <http://www.vcat.vic.gov.au/disputes/planning-and-environment>.

[footnote 294] ibid; Municipal Association of Victoria (2012) op. cit., p. 45.

[footnote 295] Leave to appeal must be given by the Court. Victorian Civil and Administrative Tribunal Act, s 148.

[footnote 296] Planning and Environment Act, s 19(1)(b).

[footnote 297] Department of Planning and Community Development (2007) 'Chapter 2: Amendments', Using Victoria's Planning System, op. cit., p. 15.

[footnote 298] Planning and Environment Act, s 18.

[footnote 299] Planning and Environment Act, s 19(2). The newspaper must be 'generally circulating in the area to which the amendment applies'.

[footnote 300] Planning and Environment Act, s 21(1).

[footnote 301] Planning and Environment Act, s 21(2).

[footnote 302] Planning and Environment Act, s 23(1).

[footnote 303] Planning and Environment Act, s 24.

[footnote 304] A failure to comply with Division 1 (exhibition and notice requirements for amendments), Division 2 (submissions on amendments), Division 3 (adoption and approval of amendment) or Part 8 of the Act (which deals with Panels).

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41276/Chapter_5_-_Reviews.pdf>.

[footnote 305] Department of Planning and Community Development (2007) 'Ch 2: Amendments', Using Victoria's Planning System, op. cit., p. 37; Planning and Environment Act, s 39(1).

[footnote 306] Planning and Environment Act, s 52(1). As mentioned in Chapter 3, some planning permit applications will not require advertising. These include applications for which the planning scheme specifically indicates that advertising is not required, or where the responsible authority is satisfied that the proposal will not have a negative impact or cause material detriment to any person. See: Department of Planning and Community Development (2008) op. cit., p. 12.

[footnote 307] Planning and Environment Act, s 52(2).

[footnote 308] Municipal Association of Victoria (2012) op. cit., p. 37.

[footnote 309] Planning and Environment Act, s 6(2)(kc).

[footnote 310] Planning and Environment Act, s 57(1).

[footnote 311] Planning and Environment Act, s 57(2).

[footnote 312] Planning and Environment Act, s 57(2A).

[footnote 313] Planning and Environment Act, s 57(5).

[footnote 314] Planning and Environment Act, s 64.

[footnote 315] Planning and Environment Act, ss 6(2)(kd), 64(4).

[footnote 316] Planning and Environment Act, s 82(1).

[footnote 317] Planning and Environment Act, s 82(2).

[footnote 318] Planning and Environment Act, s 82B(1).

[footnote 319] Planning and Environment Act, ss 82B(2), 82B(3).

[footnote 320] Department of Planning and Community Development (date unknown) 'Chapter 8: Agreements', Using Victoria's Planning System, Melbourne, DPCD, p. 1, viewed 9 January 2012, <http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0005/41279/Chapter_8_-_Agreements.pdf>.

[footnote 321] ibid.

[footnote 322] ibid., p. 2.

[footnote 323] Planning and Environment Act, s 174(1). A covenant is generally described as a formal agreement or promise in a deed or under seal: see 'Covenant', in P. Butt (ed) (2004) Butterworths Concise Australian Legal Dictionary, 3rd ed., LexisNexis Butterworths, p. 103.

[footnote 324] Planning and Environment Act, s 181.

[footnote 325] Planning and Environment Act, s 180.

[footnote 326] Department of Planning and Community Development (date unknown) 'Chapter 8: Agreements', Using Victoria's Planning System, op. cit., p. 2.

[footnote 327] ibid.

[footnote 328] Planning and Environment Act, ss 173(1), 173(3).

[footnote 329] Planning and Environment Act, s 173(2); Department of Planning and Community Development (date unknown) 'Chapter 8: Agreements', Using Victoria's Planning System, op. cit., p. 1.

[footnote 330] Planning and Environment Act, s 174(2).

[footnote 331] Department of Planning and Community Development (date unknown) 'Chapter 8: Agreements', Using Victoria's Planning System, op. cit., p. 3.

[footnote 332] Planning and Environment Act, s 6(2)(k).

[footnote 333] Victoria Planning Provisions, clause 35.07-3.

[footnote 334] Planning and Environment Act, s 178.

[footnote 335] See: Eccles & Bryant, op. cit., p. 134.

[footnote 336] Planning and Environment Amendment (General) Act, s 2(2).

[footnote 337] B. Merner, C. Ross, B. Lesman & A. Delacorn (2012) 'Planning and Environment Amendment (General) Bill 2012', Research Brief, no. 7, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013, <http://library.parliament.vic.gov.au/research/papers/pdfs/2012_07_planning_and_environment_amendment.pdf>.

[footnote 338] Planning and Environment Amendment (VicSmart Planning Assessment) Act, s 2(2).

[footnote 339] Merner & Richardson (2012) op. cit.

[footnote 340] B. Merner, A. Delacorn, K. Richardson & C. Ross (2011) 'Planning and Environment Amendment (Schools) Bill 2012', Research Brief, no. 13, Melbourne, Victorian Parliamentary Library, viewed 7 January 2013,

<http://library.parliament.vic.gov.au/research/papers/pdfs/2011_13DBPlanningenvironmentamendment.pdf>.

[footnote 341] The Victorian Planning System Ministerial Advisory Committee was established in June 2011 to make recommendations about the planning system, including improving zones and overlays. See: Department of Planning and Community Development (2012) Reformed Zones for Victoria: A discussion paper on reforming Victoria's planning zones, Melbourne, DPCD, p. 4, viewed 7 January 2013,

<http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0011/111233/Reformed-Zones-for-Victoria-Discussion-Paper.pdf>.

[footnote 342] Department of Planning and Community Development (2012) 'Reformed zones for Victoria', Melbourne, DPCD, viewed 8 January 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/improving-the-system/new-zones-for-victoria>.

[footnote 343] ibid.

[footnote 344] ibid.

[footnote 345] ibid.

[footnote 346] Department of Planning and Community Development (2012) 'Reformed residential zones', Melbourne, DPCD, viewed 8 January 2013, viewed 19 March 2013,

<http://www.dpcd.vic.gov.au/planning/theplanningsystem/improving-the-system/new-zones-for-victoria/new-and-reformed-residential-zones>.

[footnote 347] ibid.

[footnote 348] Department of Planning and Community Development (2012) 'Reformed Zones for Victoria: Reformed Residential Zones An Update March 2013', fact sheet, DPCD, viewed 19 march 2013, <http://www.dpcd.vic.gov.au/planning/theplanningsystem/improving-the-system/new-zones-for-victoria/new-and-reformed-residential-zones>.

[footnote 349] Department of Planning and Community Development (2012) 'Reformed residential zones', op. cit.

[footnote 350] ibid.

[footnote 351] See: Department of Planning and Community Development (2013) 'Get Involved', op. cit.

[footnote 352] ibid.