Planning permits
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A planning permit is a permit issued under the PE Act by a responsible authority (usually a council) that allows the permit holder to undertake a particular activity or development on a particular piece of land, usually subject to stated conditions.
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If you are unsure whether a planning permit is required, you can apply to the responsible authority for a ‘certificate of compliance’ (PE Act ss 97N–97R). 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.
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If a planning permit is required, a public notice of the proposal may be needed. 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 in accordance with the ‘public availability requirements’ (PE Act s 51). This means either in person at the offices of the responsible authority (per the requirements set out in section 197B of the PE Act), or both electronically (PE Act s 197C) and on request (PE Act s 197D).
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 (PE Act s 52(1)(a));
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 a government department (s 52(1)(c)); and
a municipal council materially affected (s 52(1)(b)).
If the responsible authority does not tell the applicant 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 (PE Act s 52(2A)).
People who believe they should have been given notice but were not can apply to VCAT for the permit to be cancelled or amended (PE Act ss 87, 89).
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Planning schemes sometimes require a permit to be referred to a specific authority or government department for advice (‘referral authorities’, see PE Act s 55).
There are two types of referral authority:
as either ‘determining referral authorities’, which 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 (PE Act s 62(1)(a)).
In relation to any matter referred to it under the PE Act, a referral authority must (PE Act s 14A):
have regard to the objectives of planning in Victoria;
have regard to the directions of the Minister for Planning;
comply with the PE Act;
have regard to the land’s planning scheme; and
provide information and reports as required by the Minister for Planning.
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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 (PE Act ss 59(2)(b), (3)(b)). 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 (PE Act s 57). 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.
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When deciding on a planning permit application, the responsible authority must consider (PE Act s 60(1)):
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;
any significant effects on or from the environment; and
any significant social effects and economic effects.
The responsible authority may also consider (PE Act s 60(1A)):
any approved strategy plan under Part 3A, 3C or 3D of the PE Act;
any relevant environment reference standard (ERS) or order made under section 156 of the EP Act;
any other strategic plan, policy statement, code or guideline which has been adopted by a minister, government department, public authority or council;
any amendment to a planning scheme which has not yet been approved by the Minister for Planning;
any section 173 PE Act agreement (these are agreements between a landowner and the responsible authority that are registered on the title and bind future owners of the land (PE Act ss 173– 182). They can cover issues that are not technically regarded in the law but are related to the permitted development and have been used, e.g. protect native vegetation, and require the management of land and groundwater contamination); and
any other relevant matter.
The responsible authority may not consider moral objections to a type of land use (e.g. as a brothel) (see Victoria Amateur Turf Club v Mornington Peninsula Shire Council [2015] VCAT 199 (Planning and Environment)) or private economic impacts.
The responsible authority cannot consider moral objections to a type of land use (e.g. as a brothel) as proper planning considerations 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 (PE Act s 60(1B)).
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 (PE Act s 60(1A)). Newly added considerations are any ERS within the meaning of the EP Act, or order made by the Governor in Council under section 156 of the EP Act (PE Act ss 60(1A)(f), (fa)).
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). The consideration of cumulative impact assessment issues may also be relevant to planning matters. For example, VCAT has raised the issue of gaming and liquor licensing matters that have planning considerations. Although licensing and gaming laws now provide more subjective tests on the issue of impact assessment, VCAT has ruled that the consideration of cumulative impact assessment issues is also relevant to planning matters (consideration of the net community benefit is not a ‘test’ or a mandatory pre-condition to the grant of planning approval but rather a relevant consideration to which regard must be had).
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 decisionmaking body.
Responsible authorities and VCAT, as public authorities, are also bound by the Charter of Human Rights and Responsibilities Act 2006 (Vic) and so are obliged to give proper consideration to, and act compatibly with, relevant human rights protected by the charter when determining permit applications.
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.
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.
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 and includes views, noise, traffic and the area’s general atmosphere. The social and economic impact of a proposed development on the local community is also relevant, but private economic impacts are not.
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.
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.
Certain zones in the VPPs are intended to protect environmental and conservation values in land uses (e.g. Rural Conservation Zone and Public Conservation and Resource Zone) and 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. VPPs cl 52.17 relating to native vegetation) can require a planning permit to remove, lop or destroy native vegetation.
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.
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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 (PE Act s 62). The conditions may require the owner or person using the land to comply with other permissions, such as under the EP Act, consolidate land titles, or impose restrictions on sub-division of the land.
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Before a responsible authority decides on a planning permit application, the Minister for Planning can require the matter be referred to ‘call in’ a planning permit decision (i.e. make the decision themselves) if it appears to the Minister that the application raises a major policy issue or the decision has been unreasonably delayed (PE Act s 97B).
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 may have a substantial effect on the achievement or development of planning objectives; or
the decision on the application has been unreasonably delayed to the disadvantage of the applicant; or
the use or development is also required to be considered by the minister under another Act or regulation and would be facilitated by referral to the minister.
A responsible authority can ask the Minister for Planning to make a decision about a permit application (PE Act s 97C) and, if so, there are different requirements about public notice, rights to object, and rights to appeal if the Minister for Planning is the decision-maker (PE Act ss 97D–97M).
If 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 (PE Act s 97E).
There are no appeals to VCAT from permit decisions made by the Minister for Planning (PE Act s 97M), but are subject to court review if, for example, there has been an error of law.
Planning permits
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: 924
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