PLANNING AND ENVIRONMENT

Many environment protection laws provide for public consultation. This fact sheet outlines the legal structure of environment protection and the laws that provide opportunities for public involvement in decision-making.

Planning schemes

The main laws controlling planning decisions under the Planning and Environment Act 1987 (Vic) ("PEA") are planning schemes. They set out the types of land use or developments which are allowed or prohibited, or for which a permit is required. Planning schemes may be viewed at local council offices and at the Planning Information Centre, Ground Floor, 8 Nicholson Street, East Melbourne, and are also accessible on the website of the Department of Sustainability and Environment (DSE) at www.dse.vic.gov.au.

Amendment of planning schemes (Re-zoning)

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:

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

The amendment must then be tabled in Parliament, and can be revoked (s.38).

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). The planning authority must take into account any significant effects that amendment of the scheme might have on the environment (s.12(2)(b)), and it may take into account social and economic effects (s.12(2)(c)).

If any of the procedural requirements for amendments are not complied with, any person substantially affected can refer the matter to Victorian Civil and Administrative Tribunal (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.

Planning permits

Where required by the planning scheme, an application must be made for a planning permit. All applications must be made available for public inspection, free of charge, at the offices of the responsible authority (usually the local council) (s.51 PEA). Notice must be given to people who would be materially affected by the grant of permit and other specific classes of people (s.52(1) PEA).

Responsible authorities can impose conditions on a permit, as long as they are fair and reasonably related to the permitted development (s.62 PEA). 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).

Making an objection

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).

Objections at VCAT

VCAT can cancel or amend a permit where there has been:

a mistake or deceit in the application or grant of permit;
failure to give notice of the application to people or authorities required;
a material change of circumstances; or
failure to comply with conditions in a permit.

VCAT considers a permit application anew, considering both the merits of the application and procedural or legal issues (s.51(1)(a) VCAT Act). VCAT is not exclusively a legal forum and legal representation is not required. The costs of the parties are usually borne by the parties themselves.

A person who objected to the grant of a permit by the responsible authority may appeal to VCAT, unless the decision is otherwise exempted from appeal (s.82(1)). Any person who is affected by the permit can apply to VCAT for leave to appeal, so long as the responsible authority received at least one written objection to the permit (s.82B).

Third parties (anyone other than the applicant) must lodge their appeal within 21 days of the responsible authority’s decision on the permit (s.82). The applicant must lodge their appeal within 60 days (ss.77–80 PEA).

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 which 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. 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.

The principal registrar of VCAT is required, if requested, to give “reasonable assistance” to anyone formulating an application (s.67(4)). VCAT personnel do not, however, provide detailed advice to applicants.

Enforcement

Anyone can make an application to VCAT for an order to restrain a person who is breaching conditions in a planning permit or planning scheme (ss.114–125 PEA). The local council should be approached to take this action on behalf of residents as it is responsible for enforcement under the PEA and is better resourced. It is often difficult to provide evidence of a breach of permit conditions and so witnesses’ statements and photographs are important.