Environment and planning law

Planning schemes are subordinate instruments, made under the PE Act, that usually include maps of the areas to which they relate and, together with the PE Act, form the main laws that regulate the use of land in Victoria.

Planning schemes must seek to further the objectives of planning in Victoria within the area covered by the scheme and may make any provision that relates to the use, development, protection or conservation of any land in the area (s 6(1) PE Act).

Planning schemes have legal effect and set out the types of land use or developments that are allowed or prohibited, or for which a permit is required. A planning scheme applies to every parcel of land in Victoria except Commonwealth land.

Planning schemes may be viewed at local council offices and are available at www.planning.vic.gov. au/schemes-and-amendments/browse-planning- schemes. To identify the planning scheme and planning controls that apply to an address or parcel of land, see www.mapshare.vic.gov.au/vicplan/.

All planning schemes in Victoria are based on the Victoria Planning Provisions (VPPs) (see ‘Victoria Planning Provisions’, below).

Planning schemes contain zones (which regulate land use), overlays and specific 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 to help people interpret and apply the schemes.

Planning schemes typically contain a range of incorporated documents that must be considered in specific decision-making processes and may apply to all schemes or to one scheme. They also usually include ‘reference documents’ which differ from incorporated documents and provide background information to help decision-makers understand the context within which a particular policy or provision has been framed.

All Victorian landholders are bound by the relevant planning schemes, including ministers, government departments, public authorities and councils (s 16 PE Act), with the following important exceptions:

• government departments and ministers can be exempted by order of the Governor in Council, on the recommendation of the Minister for Planning (s 16 PE Act);
• each reserve that is permanently reserved under the Crown Land (Reserves) Act 1978 (Vic) (s 46 PE Act) 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;
• existing uses of land can continue, despite their prohibition in the relevant planning scheme (s 6(3) PE Act). These are called ‘existing use rights’ or ‘non-conforming use rights’, and to establish such a right, it must be proved that the land was used continuously (without significant interruption) for a particular purpose before and since the planning scheme or planning amendment came into operation (see Seers v Macedon Ranges Shire Council (Red Dot) [2016] VCAT 1198 and Williams v Macedon Ranges Shire Council [2022] VCAT 621, per Quigley, J).

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 (ss 7–9 PE Act).

Planning schemes are administered and enforced by responsible authorities, which again are usually local councils. The Minister for Planning administers and enforces some planning schemes.

The 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 (Pt 1A PE Act).

A planning authority must have regard to the VPPs when preparing or amending a planning scheme (s 12(2)(aa) PE Act). A local council can amend the standard provisions of a planning scheme in force in its municipality (ss 8A, 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’, below);
• 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;
• definitions; and
• planning maps that show the location of zones and overlays – all land in Victoria is zoned and may have one or more applicable overlays.

Proposed changes in land use and large development proposals may lead to an amendment of the planning scheme (known as ‘rezoning’, although planning scheme amendments also alter planning policy or apply new overlays). Amendments are formally proposed by the relevant planning authority.

Amendments only become law after they are: 1 adopted by the planning authority (s 29 PE Act); 2 approved by the Minister for Planning (s 35); and 3 published in the Government Gazette (s 36). Amendments must be tabled in parliament and can be revoked by either House of Parliament (s 38).

Notice of a proposed amendment must be given to the Minister for Planning, public authorities, municipal councils affected by the amendment, and any land owners or occupiers ‘materially affected’ by the amendment (ss 17–20A PE Act).

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) PE Act). 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 in accordance with the public availability requirements. This is satisfied by making the relevant documents available for inspection at the offices of the planning authority (ss 21(2), 197A–D) PE Act).

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

The Minister for Planning may exempt themselves from the requirement to give notice of an amendment if the Minister considers that compliance is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate (s 20(4) PE Act).

A planning authority is required to take an integrated approach to decision-making in the making and amending of planning schemes (VPPs, cl 71.02–3). The imperative is to achieve a ‘net community benefit and sustainable development for the benefit of present and future generations’.

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 PE Act). The panel must consider all submissions given to it and provide all people who have made submissions and all relevant authorities a reasonable opportunity to be heard (s 24). Panel reports 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. However, a submission may request that a state standard provision be wholly included or wholly deleted (s 21(3), (4) PE Act).

The planning authority must consider the panel’s report before deciding whether to adopt the amendment (s 27 PE Act). 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), or approve the amendment with or without changes, or impose conditions, or reject the amendment.

Anyone affected by ministerial changes to an amendment can make submissions directly to the Minister for Planning. The minister can appoint a panel to hear submissions and make recom- mendations about changes to the amendment (s 34 PE Act).

A planning authority must take into account any significant effects which it considers the planning scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment, as well as any social and economic effects of an amendment (s 12(2)(b), (c) PE Act).

If an environment effects statement (EES) 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’ (e.g. a nationally listed endangered plant or animal species), it must be referred for consideration and potentially 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.

If any of the procedural requirements for an amendment are not complied with, any person substantially or materially affected by the failure can refer the matter to VCAT within one month of becoming aware of the failure to comply (s 39 PE Act). VCAT can:

• make a declaration about the status of the amendment;
• direct the planning authority to not adopt the amendment; or
• direct the Minister for Planning to not approve the amendment. VCAT’s power to make binding declarations is contained in section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) (see also s 149B PE Act).