Changes to the Planning and Environment Act 1987
On 23 March 2021 the Planning and Environment Amendment Act 2021 (Vic) (Amendment Act) was given Royal Assent.
The main purpose of the Amendment Act is to amend the Planning and Environment Act 1987 (Vic) (Act) in relation to three key matters:
the protection of buildings of local heritage significance;
compensation; and
the publication of notices, inspection of documents and panel hearings.
The Amendment Act also makes other miscellaneous amendments to the Act, and minor consequential amendments to the Building Act 1993, Environment Protection Act 1970 and the Public Health and Wellbeing Act 2008.
Heritage protection
The Amendment Act inserts a new definition of “heritage building”, meaning a “…building which is a place, or forms part of a place, that has been given heritage protection under a planning scheme.”
The Amendment Act introduces a new section 6B of the Act to enable a planning scheme to:
regulate or prohibit the development of land on which there is or was a heritage building that has been unlawfully demolished (in whole or in part) or fallen into disrepair; and
require that a permit must not be granted for the development of the land on which there is or was a heritage building that has been unlawfully demolished (in whole or in part) or fallen into disrepair, unless the development is for or includes the reconstruction or reinstatement of the heritage building, or the repair of the heritage building.
A planning scheme may make provision for those matters for any one of the following specified purposes:
to further the objectives of planning in Victoria;
to deter persons from unlawfully demolishing heritage buildings, or allowing heritage buildings to fall into disrepair; or
to prevent persons from obtaining a benefit from unlawfully demolishing heritage buildings or allowing heritage buildings to fall into disrepair.
In addition, the Amendment Act inserts a new section 131 of the Act which enables the Governor in Council, by Order published in the Government Gazette, to declare that land must not be developed or continue to be developed (except as specified in the Order), and/or that land must not be used (except as specified in the Order). Such an Order may only be made if a person has been found guilty of an offence under section 126(1), (2) or (3) in relation to unlawful demolition of a heritage building (or part thereof) on land that is the subject of the Order.
While an Order under section 131 is in effect, any permit and/or building permit that was issued prior to the Order taking effect in relation to the subject land is of no force or effect, and the responsible authority and relevant building surveyor (as applicable) must refuse to issue a permit and/or building permit in relation to that land.
The Building Act 1993 is amended to include a note at section 19(1) that the relevant building surveyor must refuse to issue a building permit in the above circumstances.
These changes come into effect on a day or days to be proclaimed, or 1 February 2022 (whichever is the earlier).
No doubt everyone is hopeful these changes will avoid a repeat performance of the cowboy-like behaviour which saw the loss of a significant heritage place when the Corkman Hotel was unlawfully demolished in 2016.
Compensation
The Amendment Act inserts a new section 98AAA into the Act to explicitly exclude “inner public purpose land” (land within the area of an infrastructure contributions plan that is specified in that plan as land to be set aside for public purposes) from the operation of the compensation provisions in Part 5 of the Act.
The Amendment Act also amends section 98 of the Act to:
qualify the right to claim compensation in section 98(1)(a), whereby the right only applies if the provision of the planning scheme that has reserved the land for a public purpose has an express purpose of reserving land for a public purpose (e.g. a PAO with a stated purpose of reserving land for a public purpose);
qualify the right to claim compensation in section 98(1)(b), whereby the right only applies if the proposed amendment to the planning scheme that shows land as reserved for a public purpose has an express purpose of reserving land for a public purpose (e.g. a proposed amendment to apply a PAO with a stated purpose of reserving land for a public purpose); and
qualify the right to claim compensation in section 98(2), whereby the right to claim compensation stemming from a responsible authority’s refusal to grant a permit on the ground that the land is needed for a public purpose is not available if the planning scheme prohibits or otherwise prevents the type of use or development that has been applied for.
The Amendment Act amends section 107 on the same basis, i.e. to qualify the right to claim compensation under sections 107(1)(a) and (b) to provide that the right to compensation only arises in the case of an express purpose of reserving land for a public purpose.
Essentially, these changes limit the risk to government of compensation claims by qualifying the circumstances in which a claim may be made. The changes come into effect on a day or days to be proclaimed, or 1 February 2022 (whichever is the earlier).
Publication of notices, inspection of documents and panel hearings
The Amendment Act makes a series of changes to the Act to adopt more modern and flexible notification processes, document publication and inspection requirements, and panel hearing arrangements on a permanent basis.
The changes help modernise our planning system by enabling documents to be made available for inspection electronically (in accordance with the ‘public availability requirements’), replacing existing requirements for documents to made available for inspection at an office. Such documents include:
documents associated with an amendment to the Victorian Planning Provisions;
documents associated with an amendment to a planning scheme (including Ministerial amendments);
documents associated with strategy plans;
registers of prescribed information kept by responsible authorities; and
documents associated with permit applications, objections and permits issued.
In relation to panel hearings, the Amendment Act makes a series of changes to the Act to confirm that panel hearings may be conducted electronically, including to:
confirm that a panel has the power to direct that hearings be conducted by way of audio link and audio visual link; and
provide that panel hearings may be conducted in person or by audio link or audio visual link, and if by audio link or audio visual link, the panel hearing must be available to the public while the hearing is being held or as soon as reasonably practicable afterwards.
The changes essentially formalise arrangements made pursuant to the COVID-19 Omnibus (Emergency Measures) Act 2020 (which are in turn repealed by the Amendment Act).
These changes came into effect on 23 March 2021.
Miscellaneous amendments in relation to other planning matters
The Amendment Act also makes numerous miscellaneous changes to the Act, including:
inserting a new section 68A(1) which provides that a permit for use of land for extractive industry expires if the extractive industry use is discontinued for a period of 10 years (rather than 2 years) [this does not apply to a permit authorising the use of land for extractive industry if the permit also authorises another use of land];
removing references to and legislative requirements relating to ‘municipal strategic statements’, which were rendered redundant pursuant to Planning Scheme Amendment VC148;
enabling the Victorian Planning Authority to recover the reasonable costs and expenses incurred in preparing infrastructure contribution plans and related precinct structure plans and strategic plans, and plan preparation costs incurred in preparing development contribution plans;
inserting a new section 12(1A) to ensure that the Minister has express legislative power to issue directions to planning authorities regarding the preparation of planning scheme amendments;
requiring a planning authority to publish a notice of decision to abandon a proposed planning scheme amendment on the planning authority’s website for at least 2 months; and
allowing a person who is not the owner or occupier of land subject of a planning permit to apply to extend a permit, with the written consent of the owner.
These changes came into effect on 23 March 2021.
If you have any queries or wish to discuss the implications of the legislative changes in greater detail please contact:
Kate Morris
Principal
T 03 9611 0142
E kmorris@ha.legal
Amara Coleman
Lawyer
T 03 9611 0156
E: acoleman@ha.legal