What are planning schemes?
Planning schemes are regulations (also called “ordinances”) and maps created under the PE Act that, together with the PE Act, form the main laws that regulate the use of land in Victoria. Planning schemes are statutory documents that have legal effect. 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 parcel of land in Victoria.
Planning schemes may be viewed at local council offices and are available on DELWP’s website (http://planning-schemes.delwp.vic.gov.au). To identify the planning scheme and planning controls that apply to an address or parcel of land, see http://services.land.vic.gov.au/maps/pmo.jsp.
All planning schemes in Victoria are based on the Victoria Planning Provisions, which comprise a common, standard set of planning provisions for use across Victoria (for more information, see “Victoria Planning Provisions”).
Planning schemes contain zones, which regulate land use, and overlays and particular provisions, which regulate development in specified areas or in relation to specified subject matter. Planning schemes also contain state and local policy provisions and definitions that help people to interpret and apply the schemes.
Planning schemes also contain a range of incorporated documents that must be considered in specific decision-making processes and may be incorporated across all schemes or may be incorporated locally in a single scheme. Incorporated documents are contrasted with “reference documents”, which are included to provide background information to assist decision-makers understand the context within which a particular policy or provision has been framed.
All land holders are 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 PE Act) (e.g. the Ministers for Education and Health are exempted from planning schemes);
• each reserve that is permanently reserved under the Crown Land (Reserves) Act 1978 (Vic) (s 46) is subject to a planning scheme; however, if a planning scheme is inconsistent with the purpose of a public reserve, the planning scheme does not take effect until the public reservation is revoked;
• land owned by the Commonwealth Government is typically not regulated by planning schemes;
• existing uses of land can continue, despite their prohibition in the relevant planning scheme. These are called “existing use rights” or “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 schemes and amendments are prepared by planning authorities, which are usually local councils, but can also be the Minister for Planning, or another minister or public authority appointed by the Minister for Planning.
Planning schemes are administered and enforced by responsible authorities, which are usually local councils. In some cases, the Minister for Planning administers and enforces planning schemes.
The Victoria Planning Provisions (VPPs) comprise a standard set of planning provisions for planning schemes across Victoria. These provisions are under the central control of the Minister for Planning (s 4A–4J PE Act).
A planning authority must consider the VPPs when preparing or amending a planning scheme (s 12(2)(aa)). A local council can amend the standard provisions of a planning scheme in force in its municipality (s 9(2)), but only by including or deleting a provision, not by altering its substance (s 10(1)).
Planning schemes based on the VPPs contain:
• state and local policy and strategic statements;
• a selection of standard land use zones, with or without provision for specific planning permission (see “Planning permits”);
• a range of permissible overlays, which generally denote more permanent characteristics of particular areas of land (e.g. vulnerability to bushfires) and require stated methods of management or permits for developments;
• particular provisions – these cover a range of subjects (e.g. the removal of native vegetation);
• incorporated documents;
• planning maps that show the location of zones and overlays; all land in Victoria is zoned and may have one or more applicable overlays.
Planning schemes, including planning maps showing the applicable zone and any overlays, can be found at http://planning-schemes.delwp.vic.gov.au.
Proposed changes in land use and specific larger scale development proposals may lead to amendment of the planning scheme (also known as “rezoning”, although planning scheme amendments also alter planning policy or apply new overlays). Amendments are formally proposed by the relevant planning authority. They become law only after:
1 adoption by the planning authority (s 29 PE Act);
2 approval by the Minister for Planning (s 35); and
3 publication in the Government Gazette (s 36).
The amendment must be tabled in parliament, and can be revoked by either House of Parliament (s 38).
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 DELWP (s 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).
Giving individual notices to all the owners and occupiers is not required if the planning authority considers that the number of owners and occupiers makes it impractical (s 19(1A)–(1B)). Instead, the planning authority must make sure that a 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)).
A planning authority is required to take an integrated approach to decision-making in the making and amending of planning schemes (VPPs, cl 10.01). The imperative is to achieve a “net community benefit and sustainable development for the benefit of present and future generations”. (See “For the responsible authority”.)
Anyone can make a submission about an amendment, and joint submissions can be made on behalf of a group of people (s 21, 21A PE Act). If there is 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 (s 24). Reports of the panel must be made public (s 26).
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) (see “Overview of process”, under “Victoria”) 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 federal environmental impact assessment (EIA) system established by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Failure to do so could result in substantial fines. See “Commonwealth”.
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 contained in section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) (see also s 149B PE Act).