Land-use planning
A framework for integrating controls in land use, development planning and environment protection in Victoria is set out in the Planning and Environment Act 1987 (Vic) (‘PE Act’). It provides planning controls, particularly planning schemes, that overlap with related legislation, such as the Environment Protection Act 2017 (Vic) (‘EP Act’), the Environment Effects Act 1978 (Vic) (‘EE Act’) and the Subdivision Act 1988 (Vic).
Planning schemes created under the PE Act are the main regulatory tool that control the use and development of land in Victoria. These planning schemes apply to both private and public land but there are some exceptions, which are discussed below.
Planning schemes are usually administered by local government (that is, councils). Each council has a dual role as both:
a planning authority that is responsible for the administration and amendment of planning schemes; and
a responsible authority that is responsible for making decisions about applications for permits and enforcing planning schemes.
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-planningschemes. 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, 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 specify when a planning permit is required to use and develop land and set out zones (which regulate land use), in which specified uses of land:
are prohibited; or
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 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 (PE Act s 16), with exceptions, including government departments and ministers exempted under section 16 of the PE Act and existing uses of land prior to the commencement of the relevant planning scheme (PE Act s 6(3)) provided the land was used continuously (without significant interruption) for a particular purpose.
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.
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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 (PE Act pt 1A).
A planning authority must have regard to the VPPs when preparing or amending a planning scheme (PE Act s 12(2)(aa)). A local council can amend the standard provisions of a planning scheme in force in its municipality (PE Act ss 8A, 9(2)), but only by including or deleting a provision, not by altering its substance (PE Act 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.
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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.
Land owners and occupiers ‘materially affected’ by an amendment must be given notice of a proposed amendment (PE Act ss 17–20A), unless the planning authority considers that the number of owners and occupiers makes it impractical (PE Act ss 19(1A)–(1B)). In such cases, the planning authority must make sure that a public notice is given of the amendment in the area affected. A copy must also be made publicly available, which may be satisfied by making the relevant documents available for inspection at the planning authority offices (PE Act ss 21(2), 197A–197D)).
The Minister for Planning can give a planning authority an exemption from the requirement to give notice of an amendment, including the Minister if they consider that compliance is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate (PE Act s 20(4)).
A planning authority is required to achieve a ‘net community benefit and sustainable development for the benefit of present and future generations’ in making and amending planning schemes.
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Anyone can make a submission about an amendment, and joint submissions can be made on behalf of a group of people (PE Act ss 21, 21A). 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 (PE Act s 23). 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 (PE Act s 24). Panel reports must be made public (PE Act s 26).
The planning authority must consider the panel’s report before deciding whether to adopt the amendment (PE Act 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), 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 recommendations about changes to the amendment (PE Act s 34).
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 (PE Act ss 12(2)(b), (c)).
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) (‘EPBC Act’). 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 the Victorian Civil and Administrative Tribunal (VCAT) within one month of becoming aware of the failure to comply (PE Act s 39). 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.
Land-use planning
Chapter: 11.3: Environment and planning law
Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria
Current as of: 1 September 2024
Law Handbook Page: 922
Next Section: Planning permits
