Planning and environment

Environment protection operates through a framework of controls including planning schemes, planning authorities, specific planning provisions includeing zoning and rezoning, public consultation, planning permits with special conditions, and a system of objections and appeals. The Minister can intervene and make decisions that circumvent the usual framework.

Insurance and key legislation

The Planning and Environment Act 1987 (Vic) (“PEA“) introduced a framework for integrating controls in land use, development planning and environment protection in Victoria. It provides planning controls, which overlap with related Victorian legislation, such as the Environment Protection Act 1970 (Vic) (“EPA“), the Environment Effects Act 1978 (Vic) (“EE Act“) and the Subdivision Act 1988 (Vic). One aim of the PEA is to provide a “one-stop-shop” for land use and development assessment and approvals in Victoria.

The objects of planning established by section 4 of the PEA include:

  • providing for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
  • conserving and enhancing buildings, areas, or other places that are of scientific, aesthetic, architectural or historical interest or of other cultural value;
  • balancing present and future interests of all Victorians; and
  • ensuring that the effects on the environment, and social and economic effects are considered when decisions are made about use and development of land.

The objects of planning and the planning framework in the PEA were formulated in Victoria at the same time that the principles of sustainable development were emerging internationally, and with those developments in mind.

The need for rational planning in order to implement principles of environmental protection internationally was expressed in the Stockholm Declaration 1972 and subsequently at the Earth Summit, held in 1992 in Rio de Janeiro, which emphasised both the concept of “sustainable development” (development that satisfies present needs while preserving the ability of future generations to satisfy their own), and the need to exercise caution in planning when assessing environmental risks.

Australia has subscribed to these international principles, but uses the term “ecologically sustainable development” (ESD) (see s 3A Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act“)). Although international documents are not directly enforceable in Australian law, the PEA should be interpreted as far as possible in accordance with them. Section 84B(1)(b) of the PEA provides that the Victorian Civil and Administrative Tribunal (VCAT) must have regard to the objectives of planning set out in section 4 of the PEA.

Planning schemes

The main laws to control planning decisions under the PEA are planning schemes. They set out the types of land use or developments that are allowed or prohibited, or for which a permit is required. There is a planning scheme applying to every part of Victoria. Planning schemes may be viewed at local council offices and are available on the Department of Transport, Planning and Local Infrastructure (DTPLI) website located at dtpli.vic.gov.au.

Everyone is bound by planning schemes, including ministers, government departments, public authorities and municipal councils in Victoria, with the following important exceptions:

  • government departments and ministers can be exempted by order of the Governor-in-Council (s 16);
  • reserves that are permanently reserved under the Crown Land (Reserves) Act 1978 (Vic) are subject to a planning scheme. If relevant provisions of a planning scheme are inconsistent with the purpose of the public reservation, the provisions of the planning scheme do not take effect until the public reservation is revoked (s 46);
  • existing uses of land can continue, despite their prohibition in the relevant planning scheme. These are called non-conforming use rights. To establish a non-conforming use right, it must be proved that the land was used continuously for a particular purpose before the planning scheme or planning amendment came into operation, and since, without significant interruption.

Planning authorities

Planning schemes and amendments are prepared by planning authorities, which are usually local councils, but might be the Minister for Planning, or another minister or public authority appointed for the purpose by the Minister for Planning. They are administered and enforced by responsible authorities, which are usually local councils, or the Minister for Planning.

Regional sections of planning schemes and regional authorities were generally abolished by 1997. The Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan was expressly preserved (ss 46A”“46F PEA). A de facto form of regional authority has been created in the form of (water) Catchment Management Authorities (CMAs) operating under the Catchment and Land Protection Act 1994 (Vic) (“CLP Act“).

The integrated catchment management approach seeks to establish administration in a way that respects the natural borders of eco-systems, which are generally defined by the borders of water catchments, rather than human political borders. The idea is that the approach should operate in a holistic ecological manner. CMAs are to prepare regional catchment strategies and may recommend to a planning authority that it amend its planning scheme to give effect to the strategy. The Victoria Planning Provisions (“VPPs“) (see below) require that effect be given to regional catchment strategies (cls 15, 44), and public authorities must in any case have regard to them (s 26 CLP Act; cls 15.01″“2 state section of Victoria’s planning schemes).

In principle, establishing administration on the basis of integrated catchment management should be a significant advancement of ecologically sustainable development. Concern has been expressed about the lack of structured local democratic involvement in CMAs. Also, uncertainty remains about relationships between CMAs and local councils. In any case, it is advisable to consult any regional catchment strategy, and the CMA that produced it, when dealing with an environmental planning issue.

Apart from these exceptions, planning schemes now contain only state and local sections (as well as zoning, overlay and specific land use controls, which are discussed in further detail below). The state section is prepared by the Minister for Planning or by Cabinet, depending on the significance of the issue. It reflects state-wide strategic planning, and usually overrides regional and local planning schemes. Local sections are prepared by planning authorities, which are most often local councils.

An example of an environment protection measure in the state section of all Victorian planning schemes is clause 12.01″“1, Protection of Biodiversity, where the objective is to assist the protection and conservation of biodiversity, including native vegetation retention and provision of habitats for native plants and animals, and control of pest plants and animals. Implementation of the policy may be affected by inclusion of overlays in the planning scheme applying to relevant land and include overlays for:

  • Environmental Significance;
  • Vegetation Protection; and
  • Significant Landscape.

A general requirement that a permit be obtained in order to remove, destroy or lop native vegetation is contained in clause 52.17 of planning schemes by virtue of the VPPs. This general requirement is subject to the extensive exceptions set out in clause 52.17. Local planning authorities should be pressed to include native vegetation in a protective overlay in order to obtain maximum protection.

Planning schemes also contain a range of incorporated documents.

Victoria Planning Provisions (VPPs)

The VPPs sets out a standard set of planning provisions for planning schemes in Victoria. These provisions are basically under the central control of the Minister for Planning (ss 4A”“4J PEA) ““ a standardisation initiated by the Kennett government.

Although initial preparation and approval of the VPPs was in the hands of the minister, their further amendment is to follow a procedure similar to that followed for the amendment of a planning scheme. An amendment of the VPPs can also effect an amendment of a planning scheme if this is expressly provided for in the amendment (s 4J PEA). A planning authority must have regard to the VPPs when preparing or amending a planning scheme (s 12(2)(aa) PEA).

When introducing the VPPs, the Minister for Planning issued a ministerial direction requiring that planning authorities adopt the form and style of the VPPs for all planning schemes, by using an electronic template provided. The direction required that standard land use zones, regulations and overlays be either adopted or omitted; they may not be modified. Only those zones, regulations and overlays contained in the VPPs may be adopted.

The State Government has now replaced the Residential 1 Zone, Residential 2 Zone and Residential 3 Zone with three new residential zones:

  • the Residential Growth Zone;
  • the General Residential Zone;
  • the Neighbourhood Residential Zone.

The objective has been to achieve standard planning provisions applying throughout Victoria. Local creativity in adapting land use planning zones to the needs of particular environments was to be largely excluded. Nevertheless, if local needs could not be met by a standard zone provided in the VPPs, planning constraints could be introduced by way of conditions attached to planning permits, or by a protective overlay.

The subsequent Labor government in Victoria largely continued this approach, although a local council may now be authorised to amend the State standard provisions of a planning scheme in force in its municipality (s 9(2) PEA) but may only include or delete a provision and not alter its substance (s 10(1) PEA).

The planning schemes that have resulted from this standardisation comprise the following sections:

  • state and local policy and strategic statements;
  • a selection of standard land use zones, with or without provision for specific planning permission (seePermits“);
  • a selection of permissible overlays, which generally denote more permanent characteristics of particular areas of land, such as vulnerability to bushfires, and require stated methods of management;
  • incorporated documents; and
  • planning maps that show the location of zones and overlays.

Amendment of planning schemes (rezoning)

Changes in land use and larger scale development proposals may lead to amendment of the planning scheme (also known as “rezoning”). Amendments are formally proposed by the relevant planning authority. They become law only after:

  1. adoption by the planning authority (s 29 PEA);
  2. approval by the Minister for Planning (s 35); and
  3. publication in the Government Gazette (s 36).

The amendment must then be tabled in Parliament, and can be revoked (s 38). This has the effect of repealing the amendment, rather than invalidating it.

A planning authority may be authorised to approve amendments (s 11) but may only do so if the amendment has been approved by the Secretary to the Department of Transport, Planning and Local Infrastructure (DTPLI) (ss 35A, 35B). Presumably amendments to be approved by planning authorities that are not local councils will be referred to the relevant local council at this point, although this is not clear. Although the minister may set conditions on giving notice of such amendments (s 9(5)), nothing exempts these additional planning authorities from the usual procedures, including the requirement to give notice.

The Minister for Planning, public authorities, municipal councils affected by the amendment, and any land owners or occupiers “materially affected” by an amendment must usually be given notice of the proposed amendment (ss 17″“20).

Individual notices to all owners and occupiers are not required if the planning authority considers that the number of owners and occupiers would make it impractical (s 19(1A)”“(1B)). Instead, the planning authority must make sure that public notice is given of the amendment in the area affected. A copy of the amendment must also be made available for inspection at the offices of the planning authority (s 21(2)).

Exemptions from the requirement to give notice of an amendment can be granted to a planning authority by the Minister for Planning. This formal exemption must be given even when the minister is the planning authority (s 20). No exemptions are allowed when the amendment involves reservation of land for public purposes or closure of a road (ss 19(1C), 20(3)).

Public comment on changes

Anyone can make a submission about an amendment, and joint submissions can be made on behalf of a group of people (ss 21, 21A PEA). If there is public disagreement about an amendment, the Minister for Planning usually appoints an independent panel to hear submissions and make recommendations to the planning authority (s 23). The panel must consider all submissions referred to it and give all people who have made submissions and all relevant authorities a reasonable opportunity to be heard. Reports of the panel must be made public.

A submission may not request “a change to the terms” of a state standard provision (a provision of the VPPs: s 7) to be included in a planning scheme by the proposed amendment. A submission may, however, request that a state standard provision be wholly included or wholly deleted (s 21(3), (4)).

The planning authority must consider the panel’s report before deciding whether or not to adopt the amendment (s 27). After adopting the amendment, the planning authority must submit it to the Minister for Planning. The minister can:

  • require that more notice be given (s 32);
  • approve it with or without changes;
  • impose conditions; or
  • reject it.

Anyone affected by ministerial changes to an amendment can make submissions directly to the minister, and the minister can appoint a panel to hear submissions and make recommendations about changes to the amendment (s 34).

A planning authority must take into account any significant effects that amendment of the scheme might have on the environment, and it may take into account social and economic effects (s 12(2)(b)). If an Environment Effects Statement (EES) (seeVictoria ““ overview of process“) is also required, the panel can consider submissions on the planning scheme amendment and the EES. If a project facilitated by an amendment is likely to have significant effects on a matter of “national environmental significance” (such as nationally listed endangered plant or animal species) it must be assessed under the new federal environmental impact assessment (EIA) system established by the EPBC Act. Failure to do so could result in substantial fines. SeeCommonwealth laws“, under “Environmental Impact Assessment”.

If any of the procedural requirements for amendments are not complied with, any person substantially affected can refer the matter to VCAT within one month of becoming aware of the failure to comply (s 39). VCAT can make a declaration about the status of the amendment or direct the planning authority not to adopt the amendment, or direct the minister not to approve the amendment. General powers for VCAT to make binding declarations are now contained in section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act“) (see also s 149B PEA).

Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029 was a matter that arose due to a referral to VCAT under section 39 of the PEA. A panel had been appointed under the PEA and the EE Act to hear submissions for an amendment to a scheme to allow the continued operation of the Hazelwood Power Station in the Latrobe Valley. Under the Minister’s Terms of Reference for the panel, it was directed that the panel not consider matters concerning greenhouse gas emissions from the power station.

VCAT held that if the amendment was to be approved, it would make it more probable that the power station would continue to be in operation beyond 2009, which in turn would make it more likely that the atmosphere would continue to receive greenhouse gas emissions (than otherwise would be the situation). VCAT noted that this would be an environmental effect of significance and that under the minister’s direction as it stood, the panel would have failed to consider submissions to that effect. Therefore, the minister had no power to issue such Terms of Reference to a panel in regard to its duty to consider submissions about an amendment to a planning scheme.

Planning permits

Responsible authorities

Local councils are generally the relevant responsible authorities under the PEA. They are responsible for issuing planning permits and ensuring that planning schemes and permits are complied with (ss 13, 14 PEA).

Planning schemes set out zones in which specified uses of land:

  • are prohibited;
  • require a permit; or
  • do not require a planning permit (“as of right uses”) when undertaken in accordance with any conditions that might be stated in the planning scheme.

A permit to undertake a land use may be granted subject to conditions. In view of the uniformity and generality of the standard provisions of the VPPs (seeVictoria Planning Provisions“), the discretion to grant permits ““ and the conditions that might be attached to them ““ are very important in tailoring planning regulation to the unique needs of local environments.

Certificates of compliance

If people are not sure whether a planning permit is required, they can apply to the responsible authority for a Certificate of Compliance. A Certificate of Compliance cannot be issued if a planning permit is required for all or part of the use or development. A planning proposal that receives a Certificate of Compliance is not publicised or subjected to appeal on its merits.

Anyone who believes they have been adversely affected by a material misstatement or concealment of fact in relation to a Certificate of Compliance may apply to VCAT to have it cancelled or amended (s 97N”“O PEA).

Permits

If a planning permit is required, public notice must be given of the proposal and responsible authorities are obliged to consider specific issues, set out in the PEA (seeFor the responsible authority“) and the planning scheme.

All applications for planning permits must be made available for public inspection free of charge at the offices of the responsible authority (s 51 PEA). The responsible authority may require the person or company applying for the permit to give notice of the application to specified people and in specific ways, such as by letter, notice on the land concerned or an advertisement in newspapers. If the applicant is not required to give notice, the responsible authority itself is obliged to give notice to:

  • owners and occupiers of adjoining property, unless the council is satisfied that the permit will not cause any material detriment;
  • any other people the responsible authority considers grant of the permit may detrimentally affect;
  • anyone the planning scheme requires to be notified (usually a referral authority, such as the Department of Sustainability and Environment (DSE)); and
  • any municipal council materially affected (s 52(1)).

If the responsible authority does not tell the applicant within 10 days of the application whether or not they have to give notice, and to whom, then the applicant can go ahead and give notice to adjoining landowners and occupiers and to anyone else whom the planning scheme requires be told. It is enough for them to do so by putting a sign on the affected land and publishing a notice in newspapers circulating in the area (s 52(2A)). A planning scheme can exempt some classes of applications from all the usual notice requirements, but there may be alternative notice requirements (ss 6(2), 52(4), (5)).

People who believe that they should have been given notice, but were not, can apply to VCAT for the permit to be cancelled or amended (ss 87, 89).

Responsible authorities cannot grant themselves permits. They must apply to the Minister for Planning, except where the planning scheme provides an exemption (s 96(1)).

Objections by referral authorities

Planning schemes sometimes require a permit to be referred to a specific authority or government department, known as a referral authority, for advice. If a referral authority objects to the grant of a planning permit within the time specified in the planning scheme, the responsible authority must refuse to grant it (s 61(2) PEA).

If a referral authority requires certain conditions to be included in the planning permit, the responsible authority must include those conditions before it grants the permit (s 62(1)(b)). A permit to develop coastal Crown land must not be granted unless the minister administering the Coastal Management Act 1995 (Vic) has consented (s 61(3) PEA).

A referral authority has specific duties that it must carry out under the PEA. A referral authority must:

  • have regard to the objectives of planning in Victoria;
  • have regard to the minister’s directions;
  • comply with the PE Act;
  • have regard to the planning scheme;
  • provide information and reports as required by the minister.

Objections by the public

Anyone who may be affected by the grant of a planning permit can make an objection. It must be given to the responsible authority in writing, stating the reasons for objecting and how the objector will be affected by the proposed land use (s 57 PEA). This does not necessarily mean that the objector has to show how they are personally affected. Objections may be based on broad public interest issues.

Objections should be lodged within 14 days of notice of application being given by the responsible authority (s 59).

Relevant considerations

The responsible authority must consider any significant effects that the proposed land use or development might have on the environment, and it may have regard to social and economic effects (s 60(1A)(a) PEA).

Section 84B(1) of the PEA sets out a detailed range of matters that VCAT must take into account when reviewing a decision to grant a permit (seeVictorian Civil and Administrative Tribunal“). These include:

  • the objectives of planning in Victoria (see s 4 PEA);
  • State Environment Protection Policies (SEPPs) made under the EPA;
  • the opportunity for people residing in the vicinity of the relevant land to participate in the decision;
  • planning schemes; and
  • regional strategy plans made under part 3A of the PEA.

ResCode provides for a range of relevant considerations in urban planning matters, particularly with respect to streetscape and neighbourhood character. Note that there is no single ResCode text. Its provisions are incorporated into a range of planning laws, including clauses 54″“56 of the VPPs, amendments to land use zones, and a new Neighbourhood Character overlay.

All of these points will be relevant when formulating objections, and also at the local level.

For objectors

The grounds for objecting to a planning permit must address planning considerations. Detriment to the “amenity” of the neighbourhood is an important planning consideration. Amenity includes any features, benefits or advantages of the local environment that people currently enjoy. Any effect on views, noise, traffic, or the general atmosphere of the area is relevant. The social and economic impact of a proposed development on the local community is also relevant, but private economic impacts are not. Whether the proposal is consistent with the planning scheme or orderly planning in the area is an important consideration.

Subjective fears that cannot be substantiated are not regarded as legitimate social effects. Widely held views and fears may be relevant, whether regarded as legitimate or not, because of the effects on lifestyle that living under fear might have. A planning case illustrating loss of amenity that would be caused by animal keeping and training is Cremin v Cardinia SC [2004] VCAT 1288 (available through AustLII, seeUseful websites“).

Potential pollution from the new development is highly relevant, and SEPPs and other health and environmental standards ““ such as recommended buffer areas between inconsistent land uses ““ should not be departed from (Nalder v Penney and Lang Pty Ltd (1994) 13 AATR 337; Cremin v Cardinia).

The former Administrative Appeals Tribunal (“AAT“) (which preceded VCAT) refused to approve a planning permit that would have allowed clearance of native bush on private land forming part of the habitat of the very rare helmeted honeyeater, for which an action statement had been prepared under the Flora and Fauna Guarantee Act 1988 (Vic) (see Department of Conservation and Natural Resources v Robson [1995] 15 AATR 35).

Relevance of nature conservation as a priority in planning has also been recognised in many subsequent cases (see, for example, Clare v Maroondah CC [2004] VCAT 770; and Jazownick v Wodonga CC [2006] VCAT 952).

Moral objections to a type of land use, such as a brothel or gaming activities, are not a proper planning consideration. There might be other objections to them at a particular location.

In some instances, particular overlays that appear in planning schemes may not permit review rights (e.g. a Heritage Overlay, Erosion Management Overlay, Development Plan Overlay or Incorporated Plan Overlay).

The objectives of planning in section 4 of the PEA, discussed at the beginning of this chapter, could provide other possible grounds of objection.

For the responsible authority

The responsible authority must consider a number of matters when deciding on a permit application (s 60(1) PEA), for example:

  • the relevant planning scheme;
  • the objectives of planning in Victoria;
  • all objections and other submissions that it has received and which have not been withdrawn;
  • any decision and comments of a referral authority that it has received; and
  • any significant effects that the responsible authority considers the use or development may have on the environment, or that the responsible authority considers the environment may have on the use or development.

The responsible authority may also consider significant social and economic effects, and any strategic plan, policy statement, code guideline or amendment to the planning scheme that is adopted but not yet in force, and any other relevant matter (s 60(1A)).

There has been discussion from VCAT regarding gaming and liquor licensing matters that have planning considerations. Although licensing and gaming regulation have provided more subjective tests on the issue of impact assessment, the 2009 Swancom case suggested that the consideration of cumulative impact assessment issues are also relevant to planning matters. (See Swancom Pty Ltd v Yarra City Council [2009] VCAT 923 and Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation [2009] VCAT 2275.)

A responsible authority now has to consider the cumulative impact of licensed premises when assessing an application for a licensed premises under clause 52.27. Practice Note 61: Licensed premises: Assessing cumulative impact has been prepared by the Department of Transport, Planning and Local Infrastructure to support a responsible authority when assessing the cumulative impact of packaged liquor outlets (for example, bottleshops, nightclubs, restricted places of assembly); food and drink premises (e.g. restaurants, taverns, hotels), restricted recreation facilities and certain other premises that may be licensed to sell or consume liquor. You can find the relevant practice note by following the links from www.dtpli.vic.gov.au/planning/planning-publications/practice-and-advisory-notes.

Private economic impacts are not relevant. However, a permit that allows the removal of a subdivision restriction is not allowed unless the owner of the benefited land is unlikely to suffer financial loss, loss of amenity, or loss from change to the character of the neighbourhood (s 60(2)).

Responsible authorities must also comply with the objects of the PEA and any relevant overriding legislation, such as the Flora and Fauna Guarantee Act 1988 (Vic).

Conditions and special agreements

Responsible authorities can impose conditions on a permit, as long as they are fair and reasonably related to the permitted development (s 62 PEA). The conditions may require the owner or person using the land to comply with other permits such as waste discharge licences (seeEPA Victoria licences and approvals“), consolidate land titles, or impose restrictions on sub-division of the land.

A condition in a planning permit that requires compliance with other permits or licences can be useful because any breaches of the other licences can then be enforced under the PEA. The advantage of this is that a breach of a condition in a planning permit can be enforced relatively easily by going to VCAT. Other environmental licences and permits cannot be enforced by members of the public.

A requirement that the landowner enter into an agreement with the responsible authority may also be included as a permit condition or a planning scheme amendment. The agreement, known as a “section 173 agreement”, is registered on the title and binds future owners of the land (ss 173″“182). These agreements can cover issues that are not technically regarded in the law as related to the permitted development.

The recent VCAT decision of Bass Coast SC v Tew (Red Dot) [2012] VCAT 658, notes that ending a section 173 agreement requires consent of all persons who are bound by any covenant to the agreement.

Minister’s power to “call in” decisions

The Minister for Planning can intervene at various stages of decisions about planning permits, planning schemes and appeals about planning permits.

The minister can “call in” a planning permit decision (make the decision themselves) if they believe that the application raises a major policy issue or the decision has been unreasonably delayed (s 97B PEA). There are no appeals to VCAT from permit decisions made by the minister (s 97M). The question of what is “unreasonable delay” has been the basis of a successful challenge to one minister’s decision to call in a development proposal.

A responsible authority may request the Minister for Planning to decide a planning permit application (s 97C). There are different requirements about public notice, rights to object and rights to appeal if the minster is deciding a permit application (s 97D”“M).

The minister may call in and determine an appeal lodged with VCAT if it appears that the appeal raises a major issue of policy and the determination of the appeal may have a substantial effect on the achievement or development of planning objectives (sch 1, cls 57″“60 VCAT Act).