Recent updates to the Planning and Environment Act 1987

The Planning and Environment Amendment Act 2021 (Act) was passed into law on 23 March 2021 to make changes to the Planning and Environment Act 1987 (PEA).

The amendments seek to make the Victorian Planning Authority more transparent and streamlined. The Act is also a response to the illegal demolition of the Corkman Hotel, aiming to combat what Jane Garett MP referred to in her Second Reading Speech here as “unlawful in-the-dead-of-night demolition of our beautiful heritage buildings.”

Increased heritage protection

The Act inserts a new definition of “heritage building”, meaning a “…building which is a place, or forms part of a place, that has been given heritage protection under a planning scheme” (section 3(1) of the PEA). This Act seeks to stop developers from simply incorporating fines for illegal demolition into their business costs, knowing the fines will make a small dent in the profits development would bring. The Act creates stronger protection for heritage properties by enabling a planning scheme to:

• regulate or prohibit the development of land which had a heritage building that was unlawfully demolished (in whole or in part) or fallen into disrepair
• not grant a permit for the development of land which had a heritage building that was unlawfully demolished (in whole or in part) or fallen into disrepair, unless the development reconstructs, repairs or reinstates the heritage building (section 6B of the PEA).

This opens the door for future planning scheme amendments that will deter unlawful demolition of heritage buildings and prevent people from obtaining any benefit.

In the event of an unlawful demolition or allowing a heritage building to fall into disrepair, the Governor in Council will now be able to publish an Order in the Government Gazette which effectively blocks any further development of the land or sets out specific limitations in how the land can be developed (section 131 of the PEA).

Compensation

Section 98AAA of the PEA now stops compensation being payable for “inner public purpose land”, which is land that is set aside for a public purpose within an infrastructure contributions plan.

The Act also qualifies the right to compensation for losses arising from the proposed reservation or actual reservation of land for a public purpose (section 98 and, similarly, under section 107 of the PEA) to cases where there is an “express purpose” of reserving land for a public purpose. These changes limit the risk of compensation claims to the government by setting out clear triggers for when a claim may be made (i.e. express statement that land is for a public purpose). This amendment appears to shift the balance struck by compensation provisions away from landowners and towards the government.

Whereas before it was arguable that, for example, a section 98 claim lay in the case of ‘reservation’ for a public purpose where land was proposed for public purposes under a Precinct Structure Plan (but as yet no Public Acquisition Overlay (PAO) applied), the changes would appear to now preclude such claims and make the PAO a precondition. This is because the claim will now only lie where the planning scheme states “to reserve land for a public purpose”. As readers may be aware, those very words are currently used in the purposes of the PAO in all Victorian planning schemes. Accordingly, the changes mean section 98 compensation claims only apply to circumstances in which there is a PAO.

These sections come into effect on a day or days to be proclaimed or 1 February 2022, whichever is earlier.

Transparency and efficiency

In the words of Jane Garett MP, the Act seeks to make planning an “easier process, a more transparent process and a better process” by formalising changes under the COVID-19 Omnibus (Emergency Measures) Act 2020 to allow for ongoing use of electronic notices, publication, inspections and panel hearings by audio and audio-visual link (see sections 160A and 161(6) of the PEA). Electronic availability and inspection will apply to:

• amendments to the Victorian Planning Provisions
• amendments to a planning scheme (including Ministerial amendments)
• strategy plans
• registers kept by responsible authorities
• permit applications, objections and issued permits.

The Act also defines “personal information” and “public availability requirements” to provide consistency across government bodies. Some commentary here has noted that private information requirements appear to only apply to electronic registers and not in-person registers (see section 197C of the PEA), which may disincentive councils putting information on an electronic register and undermine efforts to make the planning system more transparent.

Miscellaneous changes

The Act also makes various miscellaneous changes, including:

• permits for the extractive industry will now expire if the extractive industry use is discontinued for a period of 10 years (rather than two years) (section 68A(1)). This is to allow quarries to more easily increase and decrease production to respond to fluctuations in the market
• removes references to old language such as ‘municipal strategic statements’
• enables the Victorian Planning Authority to recover the reasonable costs and expenses incurred in preparing various strategic and contribution plans
• provides the Minister with express legislative power to issue directions to planning authorities regarding the preparation of planning scheme amendments (section 12(1A))
• requires notice on a planning authority’s website for at least two months if they abandon a proposed planning scheme amendment
• allows a person who is not the owner or occupier of land subject of a planning permit to apply to extend a permit, with the written consent of the owner.

The Act updates the PEA with clear provisions to deter unruly developers from circumventing heritage protections, minimises ambiguities around compensation, makes coronavirus adaptations permanent and permits the use of these adaptations to make Victorian planning schemes more transparent, among other miscellaneous developments.

Authors: Joseph Monaghan & Christopher Watt

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Dr Joseph Monaghan

Christopher Watt

Share this