A Year in the Victorian Planning System

ANDREW NATOLI, Lawyer and Planner for Planning & Property Partners Pty Ltd reports on the major announcements of the year in the Victorian Planning System.

IT has been a busy year in the Victorian Planning System, with a number of major announcements that have the potential to reduce the regulatory burden on extractive industries and to enhance the positive role the planning system can play in protecting and promoting stone resources at a strategic level.

Given the time of year it is worth taking stock of these announcements and, more importantly, to look forward to how these and other initiatives might pan out in 2012 so that industry is ready to respond.

Victorian Planning System Ministerial Advisory Committee

Of all of the initiatives announced this year perhaps none is more eagerly awaited than the outcomes of the Planning System Ministerial Advisory Committee.

As reported in a previous edition of Sand & Stone, in July of this year the Minister for Planning, Matthew Guy, appointed an advisory committee to consider public submissions and to make recommendations on ‘overhauling’ the planning system, focusing on the Victoria Planning Provisions and the need to reduce unnecessary costs and delays.

Chaired by Geoff Underwood and including representatives from industry and government, the advisory committee has recently concluded its deliberations and its consideration of over 500 submissions from a range of stakeholders, including the CMPA. The Committee has now finished its preliminary report and delivered it to the Minister for Planning.

It is anticipated that the Government will respond to the committee’s findings and recommendations early in the New Year. I, along with many other users of the planning system, look forward to seeing how far the recommendations will go to simplify aspects of the planning system and how firm the Minister’s resolve will be in their implementation. This will be something to watch out for in early 2012.

Planning Scheme Amendment VC77

In September of this year the Minister for Planning approved State-wide amendment VC77 to all local planning schemes to tidy up and consolidate provisions relating to mining and extractive industries.

At face value the changes appear quite extensive but were approved without any fanfare and surprisingly limited public information is available to provide any explanation of their basis.

Nevertheless I am advised by DPCD that the basis for their approval by Ministerial amendment (i.e. without public exhibition) was that the changes merely represent an administrative tidy up and shouldn’t have any practical implications for industry stakeholders.

The rationale provided was principally as an administrative ‘catch up’ for the Victoria Planning Provisions, which had become out of date and did not properly reflect the requirements of industry legislation such as the Mineral Resources (Sustainable Development) Act 1990. According to the DPCD, provisions of the VPPs relating to earth resource exploration and extraction required
consolidation, clarification and correction.

What members will probably first notice is the change in terminology and grouping of extractive industry uses under the heading ‘Earth and Energy Resources’ and changes in definitions governing extractive industries.

This is presumably to reflect legislative groupings and divisional responsibilities of DPI.

Some of the key changes include:

• Amended the nesting group heading to be ‘Earth and Energy Resources’.
• Replaced the term ‘Mineral, stone, or soil extraction’ with ‘Earth and energy resources industry’ and inserted the definition ‘Land used for the exploration, removal or processing of natural earth or energy resources. It includes any activity incidental to this purpose including the construction and use of temporary accommodation.’
• The term ‘Extractive industry’ has been replaced with ‘Stone extraction’.
• State Planning Policy for Mineral and Stone Resources (Clause 14.03) has been revised to reflect the new terminology.
• Provisions relating to earth and energy resources have been consolidated and updated into Clause 52.08.
• Revamped Special Use Zone schedules for quarries to reflect new definitions and the operation of exemptions provisions.
• Updated the terminology and exemptions under the various overlay provisions.

As noted above, it is not anticipated that these changes will have any significant practical implications for day to day approvals of extractive industry proposals but with such extensive changes there is always the potential for unintended consequences.

VCAT – Major Cases List

Anyone who has recently been involved in lodging or running tribunal appeals will be aware of the sometimes lengthy delays in having matters heard and determined by the Tribunal, particularly for large complex matters involving many parties. High levels of development activity and increasing third party involvement has resulted in an appeal system which is overloaded and Tribunal resources that are now stretched thin.

In 2010 the Tribunal successfully piloted a Major Case List that successfully reduced the length of delays for major planning proposals in the Planning and Environment List of VCAT, however funding for this program ran out in March 2011.

On 18 November VCAT President Justice Iain Ross announced that a new Major Cases List has been funded and will recommence on 3 January 2012.

To qualify for the major cases list a commercial or industrial project must have a value of $5 million or greater. It is important to note that in determining the estimated development cost the relevant VCAT practice note specifically excludes the “value of any material to be extracted from the land”. Once a project is in the list a permit applicant can expect a decision within 18 weeks of an application being lodged with VCAT.

The following time frames will generally apply:

• A practice day hearing within 5 weeks of an application being lodged;
• Mediation within 8 weeks of an application being lodged;
• A hearing within 14 weeks of an application being lodged; and
• A decision or interim decision delivered within 4 weeks of the last date of hearing.

The new list will work on a user pays basis whereby applicants will pay an initial fee of $3000 and a daily hearing fee of $3,114.90. For large complex matters this MCL offers a significant improvement given current delays and I look forward to its operation in the New Year.

Buffer Discussion Paper – Victorian Planning and Environmental Law Association

DPCD has engaged the Victorian Planning and Environmental Law Association (VPELA) to prepare a discussion paper on the application and operation of land use buffers in the Victorian Planning System. It is understood that the discussion paper will look at the issues of buffers generally and identify principles that could be applied in the future.

Whilst the project will not be calling for public submissions VPELA will be drawing on the expertise of its members in preparing the discussion paper.

Once completed it is understood that the discussion paper will be forwarded to DPCD for its consideration and it may at some point in future be released for broader public comment. This is something to watch out for in 2012.

A new Metropolitan Strategy for Melbourne

Another initiative which will potentially have significant implications for extractive industries is the State Government’s commitment to developing a new metropolitan strategy over the next two years.

The new strategy will replace the beleaguered Melbourne 2030 document which the Government and a number of stakeholders considered was poorly thought out in terms of its implementation. It is understood the development of the new strategy will be coordinated by the Premier’s office.

Little in the way of detail has been announced other than that the process will commence with public consultation meetings between the Ministers for Planning and Transport and local government and other planning stakeholders.

Expect more detailed announcements in 2012.

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