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PLANNING AND ENVIRONMENT (PLANNING SCHEMES) BILL
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14 November 1996
Second Reading
MACLELLAN
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PLANNING AND ENVIRONMENT (PLANNING SCHEMES) BILL
Second reading
Mr MACLELLAN (Minister for Planning and Local Government) -- I move:
That this bill be now read a second time.
The broad purpose of the bill is to facilitate major reforms to the structure
and content of planning schemes. Honourable members are aware of the
determination of the government to reform the planning system. The slow, complex
and unresponsive system that the government inherited has already been
reinvigorated by a series of measures.
These measures have included:
amendments to the Planning and Environment Act in 1993 and 1995 to
streamline and improve various planning procedures;
amendments to schemes to facilitate appropriate development in many
areas of Victoria;
re-establishing a partnership with a reformed local government;
giving clearer strategic direction; and
the introduction of a number of standard zones and standard land use
definitions.
The annual August statements by the Minister for Planning and Local Government
have regularly documented what has been achieved and what is to be tackled in
the next phase of the reform agenda. In the 1996 statement, improvement to the
structure and content of planning schemes was identified as the next reform of
the planning system.
There will be three main changes. The first will be the schemes focus on, and
relationship to, key strategic directions.
At the state level, a state planning policy framework is being prepared to help
guide the preparation of local planning policy and guide planning decision
making at all levels.
At the local level, a local planning policy framework will be prepared for each
municipal district.
It will include a municipal strategic statement and key local planning policies.
The strategic statement will set out a broad vision for the municipality and
show its long-term directions for land use and development.
The new schemes will therefore identify the key state and local strategies and
policies, show how they are linked and how they can be implemented by other
provisions in the scheme about the use or development of land.
The second main change will be the use of consistent planning tools in schemes.
There is no justification for retaining different and complex provisions in each
scheme for the same issue. Basic planning tools will be consistent across the
state. For example, there will be:
consistent zones for particular land uses, such as residential,
business, industrial and rural;
consistent special area controls, commonly known as `overlays', such as
those for heritage and floodway;
consistent land use definitions; and
consistent provisions for car parking, advertising signs and a variety
of other planning matters.
The third main change will be a rigorous monitoring and review of the
effectiveness of the changes to the planning system foreshadowed by this bill.
This will be done annually by the Department of Infrastructure. Improvements, as
required, will be regularly carried out.
There will be two key benefits of these changes. First, schemes will have a much
stronger strategic focus.
Page 1244
Any controls in the scheme over the use or development of land will be soundly
based and be linked to intended policy outcomes.
Second, schemes will be easier to use and understand, and they will create
greater certainty and confidence. This will have obvious benefits to
establishing new business in the state.
The new statewide standard provisions -- to be known as the Victoria Planning
Provisions -- and the new municipal strategic statement will be the two main
building blocks of the new schemes. The Victoria Planning Provisions will
contain the state planning policy framework and standard provisions dealing with
a wide range of planning issues I have already mentioned. They will be a
reference book giving municipal councils the tools they need to prepare a new
scheme.
A draft of the Victoria Planning Provisions has been prepared by the Department
of Infrastructure. Three copies of this draft have been placed on the table of
the library for viewing by members.
When members inspect this document, they will see:
a state planning policy framework;
a small number of zones -- for example, 5 residential, 5 business, 3
industrial and 3 rural zones;
19 overlays for issues as diverse as heritage, airport environs, rural
floodway and salinity management; and
provisions for specific matters such as car parking, home occupations,
and bed and breakfast accommodation.
A new proposed overlay that I wish to specifically refer to is the one dealing
with land earmarked for public acquisition. At the moment in schemes land can be
`reserved' for a public purpose. This creates the preconditions for an owner or
occupier of land to claim compensation under part 5 of the Planning and
Environment Act 1987, in accordance with the Land Acquisition and Compensation
Act 1986.
I want to make it clear that the new overlay is only intended to change the way
the land to be acquired for a public purpose is identified. It is not intended
to change any rights in relation to compensation.
The other main building block for a new scheme is the municipal strategic
statement. Municipal councils will be able to select the tools they need from
the Victoria Planning Provisions to help them implement the strategic statement.
For example, if a strategic statement refers to the need to conserve heritage
values in a residential area, the municipal council could include that area in
an appropriate residential zone and heritage overlay.
The reforms have been carefully planned. They have been developed during 1996
with a pilot group of five municipal councils -- the City of Ballarat, the Shire
of Alpine, the City of Port Phillip, the Shire of Mornington Peninsula and the
City of Brimbank. These councils are to be commended for enthusiastically
participating in helping to develop the reforms. The results show that councils
can effectively move to this new system and that real improvement is made when
they focus on the state and local policy framework.
The bill
The bill facilitates the reforms by introducing the required statutory
framework. When this act is in operation the machinery to prepare, introduce and
administer the new schemes will be in place. This work will formally begin
immediately after assent of the act as each municipal council prepares the new
scheme, including the municipal strategic statement, using the tools in the
Victoria Planning Provisions.
Each municipal council has already been asked to prepare a new scheme by
mid-1997. Each scheme will be fully tested by the normal processes of notice,
the opportunity for affected people to make submissions, and consideration by
independent panels before it is approved. With each municipal council working
with the Department of Infrastructure, new schemes will be approved and in
operation progressively over the next 12 to 18 months.
I now turn to the key provisions of the bill.
The Victoria Planning Provisions
Clause 5 inserts a new part 1A in the principal act (the Planning and
Environment Act 1987) to make provision for the preparation, approval,
availability and amendment of the Victoria Planning Provisions. They will be
prepared and approved promptly after assent to the act so that they formally
exist for use by municipal councils in preparing schemes.
Proposed sections 4B to 4I will ensure that an amendment to the Victoria
Planning Provisions will follow the usual process for an amendment to a scheme.
Proposed section 4J allows an amendment to the Victoria Planning Provisions to
include amendments to specific schemes.
Page 1245
This is important because future changes to a particular clause in the Victoria
Planning Provisions may need to flow on immediately to those schemes in which
the clause is included. Prompt introduction of consequential changes to schemes
will ensure the ongoing consistency of the provisions wherever they are used.
The new structure of schemes
Clause 7 substitutes section 7 of the principal act to introduce provisions for
the new structure of schemes. The new section requires a scheme to consist of
either state standard provisions or local provisions. A state standard provision
can only be one drawn from the Victoria Planning Provisions. Proposed new
section 7(5) allows the minister to direct the inclusion of specified state
standard provisions such as the proposed consistent land use definitions.
A local provision is one that applies just to the area of the scheme, such as a
municipal strategic statement and a scheme map showing to which land the
selected state standard provisions apply.
Clause 8 also relates to the new structure of schemes. The proposed substituted
subsections of the principal act make it clear that a planning authority may
prepare amendments to the local provisions of a scheme at any time. However, to
ensure ongoing consistency of the state standard provisions in all schemes,
proposed subsection (6) provides that a planning authority may not prepare an
amendment which amends those provisions. It may, however, prepare an amendment
to include or exclude those provisions in a scheme.
If a planning authority or any other person seeks a change to a state standard
provision it must either ask the minister to prepare the necessary consequential
amendment to the Victoria Planning Provisions or seek the minister's authority
do so itself under proposed section 4B.
Clause 12 is also consequential on the new structure of schemes. For the reasons
outlined above, a planning authority will not be able to change an amendment
when it is adopted to make changes to a state standard provision.
To make sure that submitters do not hold up decisions on amendments by making
submissions about the need for changes to state standard provisions clause 12
makes changes to sections 21, 22, 23 and 25 of the principal act so that
planning authorities and panels reject such submissions. There will be an
important role for panels, nevertheless, in testing and refining the Victoria
Planning Provisions.
Clause 13 inserts a new section 25A in the principal act and gives panels a
clear role to recommend to the minister desirable changes to the Victoria
Planning Provisions.
Municipal strategic statements
Clause 6 amends section 6 of the principal act principally to make clear that a
scheme must contain a municipal strategic statement if the scheme affects a
municipal district.
Clause 11 inserts a new section 12A in the principal act to state what the
statement must seek to achieve, what it must contain and how it must be reviewed
once it is approved as part of the new scheme.
Combined permit and amendment process
A feature of many schemes in recent years is the popularity of what are called
site-specific amendments to schemes. These usually change the scheme to
facilitate a particular development proposal. They have been popular because
their approval is usually able to authorise the development without the need for
further planning approvals involving public consultation.
While this has been to the obvious benefit of the developer, it has also
benefited the public by enabling people to know clearly the detailed nature of
proposals when making submissions. It has also benefited the relevant
authorities by enabling them to set conditions and requirements at an early
stage.
Their popularity has been a double-edged sword. Unfortunately, many schemes now
have many pages devoted to site-specific provisions. This has been to the
overall detriment of the clarity and ease of interpreting the schemes.
New schemes will not have these site-specific provisions because their core
provisions -- the state standard provisions -- will be limited to those in the
Victoria Planning Provisions. However, the bill includes a new process aimed at
ensuring the advantages of site-specific amendments are nevertheless maintained.
Clause 14 of the bill introduces a new division 5 into part 4 of the principal
act so that a planning authority, if requested to do so by a person, may
simultaneously prepare and give notice of a proposed amendment to a scheme and
give notice of an application for a permit. These notices must, under proposed
section 96C, be accompanied by a draft of the proposed permit. This enables
affected people to make submissions about the general change to the scheme, the
specific application and the draft permit. In accordance with the usual scheme
amendment process, if the authority does not accept a submission from an
affected person a panel must be appointed and the person given an opportunity to
be heard by it.
Page 1246
The panel's report must be considered by the planning authority before it
decides whether or not to adopt the amendment and recommend to the minister that
a permit be granted.
It is inappropriate that an applicant and the submitters have a right to appeal
against the minister's decision on the permit to the Administrative Appeals
Tribunal because they have had an opportunity to make submissions to the
planning authority and the panel. Proposed section 96M ensures the minister's
decision is final.
In general, the grounds on which a permit could be cancelled or amended will
apply to a permit granted by the minister under the proposed division.
So the new process will retain the benefits of the current site-specific
amendment process, will contribute to the wider benefits of the new schemes and
will also have appropriate mechanisms to ensure public consultation and
involvement in decisions.
Transitional provisions
Part 3 of the bill makes a number of transitional provisions. Clause 18 requires
a council to prepare a new scheme as soon as possible after commencement of this
act. It requires the normal procedures for the preparation of an amendment to a
scheme to apply to the new scheme.
To ensure that councils move as quickly as is reasonably possible through the
process the minister is able under clause 20 to set a date by which the new
scheme must be submitted for approval.
If a council fails to do so by that date, clause 20 enables the minister to
prepare and approve that scheme. A council must pay to the Crown the costs
incurred by the minister in preparing the scheme, as determined by the Governor
in Council.
Clause 23 relates to the new structure of schemes and the intention that they
will not contain detailed site-specific provisions. The site-specific provisions
in current schemes represent rights to use and develop land. Some of these
rights, especially those where the right has not yet been taken up, need to be
preserved in some form.
The clause will facilitate the transfer of those rights to a permit. This will
take place on approval of the scheme or within three months afterwards. Notice
must be given by the planning authority to the holder of those rights before
this transfer takes place.
The notice requirements of section 52 of the principal act and of proposed
section 96C will not apply to these permits. A person who may be affected cannot
therefore bring an action to cancel or amend the permit on grounds of a defect
in notice under division 3 of part 4 of the principal act. This is appropriate
as it is important that the rights can be transferred without further challenge.
Clause 24 provides that an existing scheme will be revoked when the relevant new
scheme is in operation. All matters of a continuing nature are to be taken to
have been done under the new scheme. Proposed amendments to existing schemes
will not, however, continue, and the Department of Infrastructure and the
relevant planning authority will manage the finalisation of outstanding
amendments before approval of the scheme.
Clauses 25 and 26 ensure that applications for permits to responsible
authorities and appeals to the Administrative Appeals Tribunal are able to be
determined even though the scheme under which they were made or lodged has been
revoked. Decisions on these matters must be made in accordance with the
provisions of the new scheme.
Statement for the purposes of section 85 of the Constitution Act 1975
I wish to make a statement under section 85(5) of the Constitution Act 1975 of
the reasons why clause 16(2) and clause 27 alter or vary section 85 of that act
in relation to the jurisdiction of the Supreme Court.
Clause 16(2) -- Proposed section 201D(2)
Clause 16(2) inserts two new subsections in section 201D of the principal act.
The first of the new subsections is subsection (2) of section 201D. It provides
that it is the intention of sections 4F and 4J of the Planning and Environment
Act 1987 to alter or vary section 85 of the Constitution Act 1975.
Proposed section 4F applies section 39 of the Planning and Environment Act 1987
to amendments to the Victoria Planning Provisions as if the amendment was an
amendment to a planning scheme.
Similarly, proposed section 4J applies section 39 of the Planning and
Environment Act 1987 to an amendment to a planning scheme made by an amendment
to the Victoria Planning Provisions. The application of section 39 in each case
allows for any defects in procedure, before approval of the amendment, to be the
subject of proceedings before the Administrative Appeals Tribunal.
Page 1247
The application of section 39 also allows for the specific application of
subsections (7) and (8) of section 39. Section 39(7) currently provides that an
approved planning scheme amendment is not made invalid by any failure to comply
with certain specified provisions of the act. Section 39(8) provides that a
person cannot bring an action other than by the process prescribed in section 39
itself.
Subsections (7) and (8) of section 39 already contain a restriction on the
jurisdiction of the Supreme Court, for the purposes of section 85 of the
Constitution Act 1975. Given that the amendment procedures for the proposed
Victoria Planning Provisions are essentially the same as those for planning
schemes, section 201D(2) does no more than extend this restriction on
jurisdiction to the Victoria Planning Provisions in the same way as it already
applies to planning schemes.
A similar extension of the restriction in jurisdiction in section 39(7) is
needed to ensure that when an amendment to the Victoria Planning Provisions is
approved there is certainty in the operation of the Victoria Planning Provisions
as amended. It is also needed to ensure that when an amendment to a planning
scheme included in an amendment to the Victoria Planning Provisions is approved
there is certainty in the operation of the planning scheme as amended. This
certainty is required because a planning scheme forms the basis for the
assessment of major development and investment opportunities, for protection of
resources and the environment, and for enforcement action to prevent any
unlawful use or development of land.
The action that a person may bring under section 39(8) requires referral of the
matter to the Administrative Appeals Tribunal for determination.
Parliament has already vested jurisdiction in the Administrative Appeals
Tribunal as the appropriate forum to deal with planning matters and has,
correspondingly, already limited the jurisdiction of the Supreme Court in
relation to planning scheme amendments and permit appeals. The primary reason
for this is to allow for relevant planning matters to be decided quickly and
inexpensively by a specialist tribunal.
Clause 16(2) -- proposed section 201D(3)
The second of the new sub-sections is sub-section (3) of section 201D. It
provides that it is the intention of sections 96M(2) and (4) to alter or vary
section 85 of the Constitution Act 1975 to the extent that it applies to any
appeal to which section 66A of the Planning Appeals Act 1980 applies.
Sections 96M(2) and (4) apply sections 81 and 85(1)(f) and most of division 3 of
part 4 of the Planning and Environment Act 1987 to permits issued under the new
combined amendment and permit process. Sections 81, 85 and division 3 of part 4
of the Planning and Environment Act 1987 provide rights of appeal to the
Administrative Appeals Tribunal.
The jurisdiction of the Supreme Court is already restricted in relation to
planning appeals by reason of section 66A of the Planning Appeals Act 1980.
Proposed section 201D(3) does no more than extend this restriction to the new
combined amendment and permit process. In relation to the listed provisions,
this will allow permits issued under the combined process to be treated in the
same way as permits issued under other existing processes. The reason why the
Supreme Court is not to have jurisdiction in relation to the listed provisions
in proposed section 201D(3) is as follows.
Parliament has already vested jurisdiction in the Administrative Appeals
Tribunal as the appropriate forum to deal with planning matters and has,
correspondingly, already limited the jurisdiction of the Supreme Court in
relation to planning scheme amendments and permit appeals. The primary reason
for this is to allow for relevant planning matters to be decided quickly and
inexpensively by a specialist tribunal. As indicated, proposed section 201D(3)
does no more than extend the existing limitation on jurisdiction to the new
combined amendment and permit provisions introduced by the bill.
Clause 27
Clause 27 provides that it is intended to vary or alter section 85 of the
Constitution Act 1975 to the extent necessary to prevent the Supreme Court
entertaining actions of the kind described in clause 22(2).
Page 1248
Clause 22(2) provides that a new planning scheme prepared and approved in
accordance with the bill must not be called into question in any proceeding in
any court or tribunal. The reasons for excluding the court's jurisdiction are as
follows.
First, it is essential that there be no gap in planning controls during the
transition from the existing planning schemes to the new schemes proposed by the
bill. A successful challenge to a new scheme would leave such a gap and thus
have serious ramifications for existing use rights and for general planning
controls affecting the use and development of land. Prohibited uses could
suddenly become lawful if a gap in planning controls existed, even if the gap
was only for a short time. Other protective measures, such as controls on the
demolition of heritage assets or removal of native vegetation, could become
unenforceable. These potential outcomes must be avoided.
Secondly, any challenge to the new schemes, even if ultimately successful, would
create serious uncertainty in the development industry. Challenges to the
validity of planning schemes occurred in 1988 after new schemes were introduced
by the Planning and Environment Act 1987. Several schemes were challenged,
largely by those motivated by commercial advantage, and validating legislation
was required in the following sittings of the Parliament. The limitation of
jurisdiction in clause 27 will avoid a repeat of those events.
Thirdly, the new schemes are to be based on a series of state standard
provisions to be introduced through the Victoria Planning Provisions. A
challenge to one scheme would therefore most likely have an adverse consequence
on all other planning schemes in the state. Fourthly, in considering the
limitation on the ability to challenge a new scheme, it is important to note
that many parts of new schemes will simply reflect existing scheme provisions,
albeit in a new structure.
Many parts of the new schemes will have been in the public domain for some time
and have been subject to extensive consultation. Examples of this are a number
of the statewide zones and statewide land use definitions.
The new schemes will be prepared by municipal councils and follow the ordinary
amendment process. There will be public exhibition, the opportunity for hearings
of submissions by a panel, and proceedings will be able to be instituted to
consider any defects in procedure before approval of a scheme. Either house of
Parliament also retains the power to revoke a new scheme, under section 38 of
the Planning and Environment Act 1987.
Most importantly, the limitation of jurisdiction relates only to the initial
approval of a new scheme, so as to give each new scheme a sound foundation in
law.
This is essential to the extent that the new planning schemes will form the
basis for the assessment of major development and investment opportunities, for
protection of resources and the environment, and for enforcement action to
prevent any unlawful use or development of land. Once a new scheme is in place,
any subsequent amendment of the scheme will be subject to the usual provisions
of the Planning and Environment Act 1987.
Conclusion
In conclusion, the bill enables municipal councils to take the lead in making
very significant changes to improve the system of planning schemes in this
state. These improvements will all be within a very clear government framework,
to ensure that the whole Victorian community can reap the benefits. As a result
the next two years will be ones of intense activity.
The minister will be keeping a very close eye on progress and, as may be
required, will be making the necessary fine-tuning as experience with the new
arrangements develops.
I commend the bill to the house.
Debate adjourned on motion of Ms GARBUTT (Bundoora).
Debate adjourned until Thursday, 28 November.