Environment and planning law

A planning permit is a permit issued by a responsible authority that allows the permit holder to undertake a particular activity or development on a particular piece of land. The permit usually sets out the conditions that apply to the activity or development. Planning schemes specify when a planning permit is required to use and develop land. Planning permits may also be required by overlays.

A permit to undertake a land use or development may be granted subject to conditions. Considering the uniformity and generality of the standard provisions of the VPPs (see ‘Victoria Planning Provisions’, above), the discretion to grant permits – and the conditions that might be attached to them – are important in tailoring planning regulation to the unique needs of local environments.

Planning schemes specify when a planning permit is required to use and develop land. Decisions about planning permits are made by a responsible authority (usually a local council) under the PE Act. Decision-making on permits is often called ‘statutory planning’. The responsible authorities are in charge of issuing planning permits and ensuring that planning schemes and permits are complied with (ss 13, 14 PE Act).

Planning schemes set out zones in which specified uses of land:

• are prohibited;
• require a permit; or
• do not require a planning permit when undertaken in accordance with any conditions that might be stated in the planning scheme. Planning permits may also be required by overlays. A permit to undertake a land use or development may be granted subject to conditions. Considering the uniformity and generality of the standard provisions of the VPPs (see ‘Victoria Planning Provisions’, above), the discretion to grant permits – and the conditions that might be attached to them – are important in tailoring planning regulation to the unique needs of local environments.

If you are unsure whether a planning permit is required, you can apply to the responsible authority for a certificate of compliance (s 97N–97R PE Act). A certificate of compliance cannot be issued if a planning permit is required for all or part of the land use or development. A land use or development 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 97Q PE Act).

If a planning permit is required, a public notice of the proposal may be needed. In deciding whether a public notice is necessary, a responsible authority must consider specific issues set out in the PE Act and the planning scheme.

A public notice is not required by some planning permits for certain zones (e.g. the comprehensive development zone) and overlays (e.g. the design and development overlay) or for small or straightforward permit applications.

All applications for planning permits must be made publicly available either by inspection at the offices of the responsible authority (s 51 PE Act) or by being made available on the internet, and they must be provided upon request (ss 51, 197A). 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 is obliged to notify:

• owners and occupiers of adjoining properties, unless the council is satisfied that the permit will not cause any material detriment (s 52(1)(a) PE Act);
• any other person the responsible authority considers may suffer material detriment if the permit is granted (s 52(1)(d));
• any person the planning scheme requires to be notified (usually a referral authority, such as the Department of Energy, Environment and Climate Action) (s 52(1)(c)); and
• a municipal council materially affected (s 52(1)(b)). If the responsible authority does not tell the appli- cant 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) PE Act). 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) PE Act). 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 PE Act). 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) PE Act).

Planning schemes sometimes require a permit to be referred to a specific authority or government department for advice. These authorities and government departments are known as ‘referral authorities’.

Under the PE Act (ss 55–56A) and clause 66 in all planning schemes, there are two types of referral authority:

• determining referral authorities – these authorities can require a permit to be rejected, or for conditions to be applied to a permit; and
• recommending referral authorities – the advice of recommending referral authorities only needs to be considered by a responsible authority in deciding whether to grant a permit. If a referral authority requires certain conditions to be included in a planning permit, the responsible authority must include those conditions before it grants the permit (s 62(1)(a) PE Act). A permit to develop coastal Crown land must not be granted unless the minister administering the Marine and Coastal Act 2018 (Vic) has consented under that Act to the use or development (s 61(3) PE Act). A referral authority has specific duties that it must carry out under the PE Act (s 14A). A referral authority must:
• consider the objectives of planning in Victoria;
• consider the directions of the Minister for Planning;
• comply with the PE Act;
• consider the land’s planning scheme; and
• provide information and reports as required by the Minister for Planning.

The general position under the PE Act is that anyone who may be affected by the grant of a planning permit can object to the permit. However, there are significant exceptions for certain types of permit applications.

If there is a right to object, the objection must be made to the responsible authority in writing and should be lodged within 14 days of the notice of the application being given by the responsible authority, as the responsible authority is prevented from deciding on the application until 14 days have elapsed from the giving of that notice (s 59(2)(b) and (3)(b) PE Act). The responsible authority may have a standard form for objections.

Objections should state the reasons for the objection and how the objector will be affected by the proposed land use (s 57 PE Act). This does not necessarily mean that the objector has to show how they are personally affected, as objections may be based on broad public interest issues.

The VicSmart reforms introduced in 2014 and 2017 significantly reduced the notice and objection rights for many developments. Key features of VicSmart:

• a 10-day permit process;
• applications are not advertised;
• information is to be submitted with an application and what council can consider is pre-set; and
• the application is decided by the Chief Executive Officer of the council or delegate. Applications that qualify for VicSmart must be:
• classified as a VicSmart application type;
• located in a specific zone or overlay; and
• meet the criteria. Examples of types of applications listed by VicSmart include some types of subdivisions, buildings and works in zones or overlays, and advertising signs. For more information about VicSmart, see www. planning.vic.gov.au/guides-and-resources/guides/ all-guides/vicsmart-permits.

Considerations: Granting a permit The responsible authority must consider a number of matters when deciding to grant a planning permit. These considerations are set out in the PE Act (s 60(1)) and planning schemes.

The responsible authority must consider:

• the relevant planning scheme;
• the objectives of planning in Victoria;
• all objections and other submissions that it has received and which have not been withdrawn;
• any decision and comments of a referral authority that it has received;
• any significant effects that the responsible authority considers the use or development may have on the environment, or that the responsible authority considers the environment may have on the use or development; and
• any significant social effects and economic effects that the responsible authority considers the use or development may have and for the purposes of this consideration, the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect (s 60(1B) PE Act). The responsible authority may also consider – if the circumstances appear to require it – any regional or other strategy plan or amendment adopted under the PE Act but not yet approved by the Minister for Planning, policy statement, code, guideline or amendment to the planning scheme that is adopted but not yet in force, any section 173 PE Act agreement affecting the land, and other relevant matters (s 60(1A) PE Act). Newly added considerations are any environment reference standard within the meaning of the EP Act, or order made by the Governor in Council under section 156 of the EP Act (s 60(1A)(f), (fa) PE Act). Moral objections to a type of land use (e.g. as a brothel) are not proper planning considerations (see Victoria Amateur Turf Club v Mornington Peninsula Shire Council [2015] VCAT 1991 [30]). VCAT has raised the issue of gaming and liquor licensing matters that have planning considerations. Although licensing and gaming regulation have provided more subjective tests on the issue of impact assessment, the 2009 Swancom Case suggested that the consideration of cumulative impact assessment issues are also relevant to planning matters. (See Swancom Pty Ltd v Yarra City Council [2009] VCAT 923 and Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation [2009] VCAT 2275.) Private economic impacts are not relevant. However, a permit that allows the removal of a subdivision restriction is not allowed unless the owner of the benefited land is unlikely to suffer financial loss, loss of amenity, or loss from change to the character of the neighbourhood (s 60(2) PE Act). The responsible authority may be attempting to balance various competing or conflicting objectives in the course of making a decision about a permit. Decision-making is an exercise of discretion leading to an acceptable outcome (VPPs, cl 65). The approach required to be taken is ‘integrated decision- making’ in favour of a net community benefit, and sustainable development for present and future generations (VPPs, cl 71.02–3). Consideration of the net community benefit (or acceptable outcome) in a planning application is not a ‘test’ or a mandatory pre-condition to the grant of planning approval (as was suggested in earlier cases) but rather a relevant consideration to which regard must be had (see Moreland City Council v Glenroy RSL [2018] VSC 126). In Rozen v Macedon Ranges Shire Council [2010] VSC 583, it was found that an acceptable outcome can have negative characteristics, and it may be acceptable on balance, although it achieves only some planning objectives and is contrary to others. The net community benefit consideration recognises scope for benefits and ‘dis-benefits’ in a proposal that must be jointly evaluated (see Hoskin v Greater Bendigo City Council [2015] VSCA 350). An acceptable outcome is not necessarily a perfect outcome. A responsible authority must determine whether or not a net community benefit arises under the PE Act and not simply defer to a finding of another decision- making body. In Moreland City Council v Glenroy RSL [2018] VSC 126, the Supreme Court found that VCAT had relied on a ‘no net detriment’ finding by the Victorian Commission for Gambling and Liquor Regulation, rather than making its own finding on considerations of any net community benefit. Under section 61 of the PE Act, the responsible authority may decide to grant a permit, or to grant a permit subject to conditions, or refuse to grant a permit on any grounds it thinks fit. The responsible authority:
• must refuse to grant a permit if a relevant determining referral authority objects to the grant of the permit; and
• may refuse to grant a permit it a relevant recommending referral authority objects to the grant of the permit. If granting a permit authorises anything that results in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit. Recently, VCAT recognised that responsible authorities and VCAT, as public authorities, are bound by the Charter of Human Rights and Responsibilities Act 2006 (Vic). Specifically, the tribunal held that both are obliged to give proper consideration to, and act compatibly with, relevant human rights protected by the charter when determining permit applications (see Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758).

  ResCode

  The Residential Development Standards (‘ResCode’) provide a range of relevant con­ siderations for urban planning matters, particularly about streetscapes 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. For more information about the ResCode, see www.planning.vic.gov.au/guides-and-resources/ guides/all-guides/residential-development.

  Considerations: VCAT reviewing a planning permit

  Section 84B of the PE Act sets out a detailed range of matters that VCAT must take into account or have regard to when determining an application for review under the PE Act. VCAT must: take into account:
• any matter which the person or body in respect of whose decision the application for review is made properly took account of in making its decision or was required to take account of in making its decision
• any relevant planning scheme;
• (if appropriate) the approved strategy plan under Part 3A, 3C or 3D of the PE Act
• any relevant environment reference standard or order made by the Governor in Council under section 156 of the EP Act
• (If appropriate) the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;
• any other matter which the Tribunal is required by the provisions of the PE Act or any other Act to take account of in determining the application for review; have regard to:
• any matter which the person or body in respect of whose decision the application for review is made properly had regard to in making its decision or was required to have regard to in making its decision;
• the objectives of planning in Victoria;
• any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority;
• any agreement made pursuant to section 173 affecting the land the subject of the application for review;
• (if appropriate) any amendment to the approved regional strategy plan under Part 3A, 3C or 3D adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister; and
• (if appropriate) the number of objectors in considering whether the use or development may have a significant social effect. If an application for review is of a class that is exempted by a planning scheme wholly or in part from the requirements of the above, then VCAT is not required to take into account or have regard to the exempted matters in determining the application (s 84B(3) PE Act).

  For objectors

  The grounds for objecting to a planning permit must address planning considerations. An objector who lodges an objection to the grant of a planning permit does not automatically become a party to any subsequent proceeding in VCAT (Box v Stonnington CC (Red Dot) [2023] VCAT 289 (20 March 2023)). The grounds for objecting to a planning permit must address planning considerations. Detriment to the ‘amenity’ of a neighbourhood may be an important planning consideration. ‘Amenity’ includes any features, benefits or advantages of the local environment that people currently enjoy. Any effect on views, noise, traffic or the area’s general atmosphere 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. Subjective concerns are not legitimate social effects. Widely held views and fears may be relevant, whether regarded as legitimate or not, because of the effects on lifestyle that living under fear might have. A planning case illustrating loss of amenity that would be caused by animal keeping and training is Cremin v Cardinia Shire Council [2004] VCAT 1288. In 2015, sections 60(1B) and 84B(2)(jb) were added to the PE Act to recognise that the number of objectors may be relevant when considering whether a proposed use of land or a development will have a significant social effect. These amendments followed Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 and Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45. These decisions found that while the number of objectors alone cannot be grounds for refusing a planning permit, the extent of opposition may be relevant in determining whether a proposed use of land or a development will have a significant social effect. The 2015 amendments to the PE Act were tested in Backman & Co Pty Ltd v Boroondara City Council [2015] VCAT 1836, which held that objections to the construction of an apartment building that were based on the demographics of the likely occupants were not relevant because the alleged social effect did not have a direct connection to the permit ‘triggers’ (i.e. the basis on which a planning permit is required). Objections to broiler farms in Vukadinovic v Mount Alexander Shire Council (No 6) (Correction) [2015] VCAT 1993 confirmed that having a large number of objectors contributes to whether the development will have a significant social effect but is not grounds in itself for refusing a planning permit. However, the planning permit issued by VCAT was the subject of an appeal by a group of neighbouring objectors. This group was ultimately successful on a separate ground and the permit applicant abandoned the development (see Forbes v Vukadinovic [2018] VSCA 138). The relevance of nature conservation as a priority in planning has been recognised in many cases (e.g. Clare v Maroondah City Council [2004] VCAT 770; Jazownick v Wodonga City Council [2006] VCAT 952). Environmental and conservation issues may be central to a permit decision under consideration where a zone, overlay or planning provision is specifically concerned with those issues. Certain zones are intended to protect these values in land uses (e.g. Rural Conservation Zone and Public Conservation and Resource Zone). Standard overlays (e.g. Environmental Significance Overlay and Significant Landscape Overlay) are intended to control development to protect environmental or landscape values. Particular provisions (e.g. cl 52.17 relating to native vegetation) can require a planning permit to remove, lop or destroy native vegetation. Objections need to address the permit trigger(s) in the particular circumstances. In some instances, particular overlays may not permit review rights (e.g. heritage overlay, erosion management overlay, development plan overlay or incorporated plan overlay). The objectives of planning in section 4 of the PE Act (see ‘Land-use planning’, above) could provide other possible grounds of objection; although, the objection still needs to respond to the permit trigger. Similarly, planning schemes contain an extensive planning policy framework, comprising both state and local policies. These policies provide the context to statutory planning and permits. The policy framework provides the purposes and rationale for permit decisions in any particular set of circumstances.

Responsible authorities can impose any conditions they think are appropriate on a permit, as long as the conditions are fair and reasonably related to the permitted development (s 62 PE Act) (see Hand v Warrnambool City Council [2004] VCAT 19; Melbourne Water Corporation v Domus Design Pty Ltd [2007] VSC 114). The conditions may require the owner or person using the land to comply with other permissions, such as under the EP Act (see ‘Environment Protection Act 2017’, 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 PE Act. 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 generally cannot be enforced by members of the public (although, see Part 11.4 EP Act). Section 173 agreements A ‘section 173 agreement’ is an agreement between a landowner and the responsible authority. A requirement that the landowner enter into such an agreement may be included as a permit condition or a planning scheme amendment. The agreement is registered on the title and binds future owners of the land (ss 173–182 PE Act). These agreements can cover issues that are not technically regarded in the law but are related to the permitted development. These agreements have been used to, for example, protect native vegetation, and require the management of land and groundwater contamination.

In Bass Coast Shire Council v Tew (Red Dot) [2012] VCAT 658, VCAT noted that ending a section 173 agreement requires the consent of all people who are bound by any covenant to the agreement. (See also s 60(2) PE Act.)

The Minister for Planning can intervene at various stages of the decision-making process about planning permits, planning schemes and appeals about planning permits. The Minister for Planning can ‘call in’ a planning permit decision (i.e. make the decision themselves) if they believe that the application raises a major policy issue or the decision has been unreasonably delayed (s 97B PE Act).

The Minister for Planning can call in an application if it appears to the minister that:

• the application raises a major issue of policy and that the determination of the application may have a substantial effect on the achievement or development of planning objectives;
• the decision on the application has been unreasonably delayed to the disadvantage of the applicant; or
• the use or development to which the application relates is also required to be considered by the minister under another Act or regulation and that consideration would be facilitated by the referral of the application to the minister. A responsible authority can ask the Minister for Planning to make a decision about a permit application (s 97C PE Act). There are different requirements about public notice, rights to object, and rights to appeal if the Minister for Planning is the decision- maker (s 97D–97M). Where an application is to be decided by the Minister for Planning, the minister must (unless certain exceptions apply) appoint a planning panel and refer submissions and objections to the panel. The panel must give anyone who has made a submission or raised an objection, or any other person affected by the permit application, a reasonable opportunity to be heard, and must consider the submissions and objections (s 97E PE Act). There are no appeals to VCAT from permit decisions made by the Minister for Planning (s 97M PE Act). However, such decisions are subject to judicial review on matters such as errors of law (e.g. East Melbourne Group Inc v Minister for Planning [2008] VSCA 217).