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 by 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 and cls.15.01–2 of the state section of Victoria's planning schemes).

In principle, establishing administration on the basis of integrated (water) 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 which produced it, when dealing with an environmental planning issue.

Apart from these exceptions, planning schemes now contain only state and local sections. 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. (Planning schemes may be accessed through the website of the DSE at www.dse.vic.gov.au.)

An example of an environment protection measure in the state section of all Victorian planning schemes is clause 15.09. It contains policy statements about the desirability of retaining and linking native vegetation. Implementation of the policy may be effected by inclusion of overlays in the planning scheme applying to relevant land; particularly Environmental Significance (cl.42.01), Vegetation Protection (cl.42.02) and Significant Landscape (cl.42.03). 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 notionally contain a range of incorporated documents.

A standard set of planning provisions for planning schemes in Victoria is set out in the VPPS. These provisions are basically under the central control of the Minister for Planning (ss.4A–4J PEA). This standardisation was initiated by the Kennett Liberal 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 a computer template issued on disk. 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.

Clearly, the objective was 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 (see below).

The Labor Government has largely adopted 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:

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:

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 Infrastructure (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)).

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:

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) (see: "Victoria – overview of process", below) 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. See: "Commonwealth" under "Environmental Impact Assessment", below.

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 EEA 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.

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:

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 (see: "Victoria Planning Provisions", above), the discretion to grant permits, and the conditions which might be attached to them, are very important in tailoring planning regulation to the unique needs of local environments.

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).

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 (see: "For the responsible authority", below) 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:

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 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)).

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).

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).

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 (see: "The Victorian Civil and Administrative Tribunal", below). These include:

ResCode provides 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.

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 (see: "EPA Victoria", below), 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 Minister for Planning can intervene at various stages of decisions about planning permits, planning schemes and appeal about planning permits.

The Minister can "call in" a planning permit decision if the Minister believes 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 (Schedule 1, cls.57–60 VCAT Act).

For more information, see: DSE Practice Note, Ministerial Powers of Intervention in Planning and Heritage Matters, November 2004 (available on the Department of Planning and Community Development website at www.dpcd.vic.gov.au).

The costs of the parties are usually borne by the parties themselves. VCAT may require a party to pay the costs of others if they believe a party has been unreasonable in the proceedings or that the application itself appears to be unreasonable (s.109 VCAT Act). For further information about the operation of VCAT generally, see: Chapter 21*3 Administrative Appeals Tribunals.

A person who has applied for a planning permit may appeal to VCAT against a permit decision within 60 days of the responsible authority's decision (ss.77–80 PEA).

Classes of permit applications may be exempted from appeal by the planning scheme (s.82).

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). The AAT (forerunner to VCAT) discussed situations where it would grant special leave in circumstances where the appellant did not object in the first place in Opsimoulis v Nikolic (1994) 12 AATR 188, and was reasonably flexible.

The question is what is just and fair in the circumstances. VCAT is concerned that a serious objection to a project should be heard (see Kenyon & Willabee PL v Port Phillip CC [2000] VCAT 797 and Leonora Group (Wonthaggi) Pty Ltd v Bass Coast SC [2003] VCAT 233 at [76]). The President of VCAT may direct that wider notice be given of an application for review of a decision with respect to a permit (s.83B PEA ).

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). Time limits can be extended by VCAT (s.126 VCAT Act).

An association that is not incorporated cannot be a party to a matter before VCAT, but may be allowed to make a statement (s.61). For a full contest, associations should thus be incorporated, or the application for review should be made by individual members.

People wishing to contest proceedings under the "planning enactments" (including PEA and EPA) must lodge a statement of the grounds on which they intend to rely at the hearing, and this statement must be served on the applicant and the responsible authority (cl.56, Schedule 1, VCAT Act). Section 84 of the PEA provides that in the proceeding itself, a party is not restricted to the grounds previously notified to the other parties.

Nevertheless, the formulation of the statement of grounds should be taken very seriously. As noted above in "VCAT fees and costs", it is possible for another party to seek payment of its costs. Two of the grounds for VCAT to order payment of costs are prolonging the proceeding and causing an adjournment (s.109 VCAT Act). If the statement of grounds does not reflect the issue being argued, an aggressive opponent might claim that it has been taken by surprise, seek adjournment and apply for costs.

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 (see: "Legal advice", below).

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. Interim injunction and permanent enforcement orders may be sought. Breaching these orders is an indictable offence that can be prosecuted in the Magistrates' Court.

It is often difficult to provide evidence of a breach of permit conditions. Witnesses' statements and photographs are important.

Costs are more likely to be awarded in an enforcement case than in other planning matters.

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

VCAT can order that no development occur, other than that specified in an order, while the matter is being heard.

Before making an order, VCAT must consider whether an applicant should give an undertaking as to damages (s.93 PEA). Applicants may be liable to pay the developer compensation for losses suffered as a result of a suspension of the development that proves unjustified (s.94).

Applications for cancellation or amendment can be made by the responsible authority, a referral authority, the owner or occupier of land concerned, or a person who objected or would have been entitled to object, in certain circumstances (ss.87–94).

Often the use of land that is to be facilitated by the amendment of a planning scheme will be an "as of right" land use under the amended planning scheme. Where that is not the case, a person requesting the preparation of a planning scheme amendment may also apply to the relevant planning authority for a permit with respect to a use of the land which would be permissible if the amendment were to be made (ss.96A–96N PEA). Amendment of the planning scheme and the planning permit application may then be considered concurrently.

The procedure is then substantially the same as a planning scheme amendment, with opportunities to make submissions and panel hearings. Entitlement to notice of the application is severely restricted (s.96C). If the application is successful, the Minister grants the permit (s.96I) and directs the responsible authority to issue it (s.96J). Appeal against the grant of a permit pursuant to this procedure is effectively excluded (s.96M(3)).