Consumer Planning and Legislation Amendment Bill 2024

Andrew Natoli Provides Information on the Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024 – key changes to the permit application process

In the past year there has been a flurry of announcements of changes to the Victorian planning system as part of the State Government’s actions to implement Victoria’s Housing Statement – a 10-year plan to address the housing supply crisis in Victoria.

This article briefly summarises some key changes implemented by the Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024 (the Bill), which passed through Parliament in November 2024 and progressively comes into effect during 2025. The article also takes a deeper look at the new process to address ‘incomplete’ permit applications.

The Bill implements housing related reforms across a number of portfolios and acts, including legislation regulating owners corporations and residential tenancies. Changes are also made to allow tribunals and planning panels to more efficiently hear submissions in planning appeal and panel hearings. In terms of the Planning and Environment Act 1987 (the Act) and the permit application process, the Bill makes the following
key changes:

Giving notice of ‘incomplete’ permit applications – a new process through which councils can give applicants notice of applications they consider to be ‘incomplete’ within 5 business days of lodgement. An application will
be void and of no effect if the notice is not complied with. (this is discussed further below).

Longer expiry dates for permits – the default expiry times for permits will be increased, including the introduction of a default period of 3 years to commence a development (currently set by a permit condition only) and an increase to 5 years to complete a development (from the current default 2 year period), and an increase in the default period to commence a use to 3 years (from the current 2 year default). No changes are proposed to the expiry times for extractive industry under section 68A of the Act.

Determining ‘material detriment’ and ‘a person materially affected’ – the Minister can prepare guidelines for councils to determine whether an
application will cause material detriment to persons to whom the Act requires notice to be given. In making decisions about directing notice, a council will be required to have regard to the guidelines. Relevantly, no
other changes are proposed that would clarify the role or weight to be given to the guidelines in determining whether notice was correctly given (eg. for an application to cancel or amend a permit under section 87 where there is an alleged failure to give notice).

What is an ‘incomplete’ application?
For proponents, the introduction of a new process to give notice of an ‘incomplete application’ will have the most significant implications for the costs and efficiency of the permit process.

This change has its origins in the review of planning and building approvals process undertaken in 2019-2021 by the Commissioner for Better regulation, which culminated in a 2021 report that made a range of recommendations.1 Recommendation B2 of the final report included a proposal to amend the regulatory framework to allow councils to only assess application once they are ‘decision-ready’. Relevantly, this proposal was made in conjunction with two supporting proposals (summarised):

Developing guidelines to ensure that applicants are clear about what information is required under a planning scheme.

Reviewing and clarifying Victorian Planning Provisions (the VPP) information requirements, and identifying opportunities to remove any duplicative or unnecessary information requirements. (2)

It is not clear whether the above supporting proposals are underway or will be implemented concurrently with the changes proposed by the Bill.
The Bill allows councils to use the incomplete applications process when it considers an application does not comply with the section 47(1)(b),(c), (d) and (e). These provisions require that an application must:

• be accompanied by the prescribed fee;
• be accompanied by the information required by the planning scheme;
• where land is affected by a covenant, be accompanied by a copy of the covenant; and
• where an application seeks to remove or vary a covenant, be accompanied by information identifying the beneficiaries of the covenant.

Consistent with a line of Tribunal decisions, (3) applications that are currently ‘incomplete’ are nevertheless treated as ‘valid’ and properly received by a council provided they include a completed application form containing all the information required by the Regulations, and a declaration under section 48(1) (if required). Any missing or ‘incomplete’ information is generally obtained through a request for further information
made by a council under section 54. For the reasons set out below, this approach has been a practical way of dealing with the diverse range of permit applications that can be triggered under any given provision. The level of information required to assess whether any given proposal is acceptable is always determined by its context, scale and potential for impacts and guided by the principle of proportionality. (4)

Under the new process, an incomplete application will be ‘void’ and of ‘no effect’ if any fee or information (which the Council considers is required to accompany the application) is not provided in the time required by a notice given under these provisions (ie. a minimum of 5 business days, but can
be set longer).

While some of the requirements of section 47(1) can be objectively ascertained (eg. the correct fee class, covenants and beneficiaries), what ‘information’ the planning scheme requires to “accompany” any given application is far less clear and open to interpretation.

Information requirements for permit applications are generally
specified under the “application requirements” section of planning provision. Application requirements appear in state standard provisions, or local schedules. For example, an application to use and develop land for extractive industry must be accompanied by (inter alia) a copy of a work plan or a variation to an approved work plan that has received statutory
endorsement under section 77TD of the Mineral Resources (Sustainable Development) Act 1990.

While the above application requirement is clear, almost half of the “application requirements” currently included in state standard provisions are qualified by the words “as appropriate”. This qualification provides a discretion for a council to waive or vary an information requirement, a discretion provided for good reason:

The lists of application requirements are extensive and often just expressed as a shopping list of information that ‘could’ be relevant to any given application, but in many cases will simply not be warranted.

Many of the items listed will often be irrelevant or disproportionate to the determination of minor applications given their low impacts. For example,
under the Industrial 1 Zone, all buildings and works applications must include a ‘landscape layout plan’, even where the application proposes minor works with no landscape or public realm impacts.

Many application requirements call for documents (eg. site environmental management plans and landscape plans) that are normally submitted and approved as secondary consents once the final layout of a use or development is known and after the issue of a permit. These are also documents that can take considerable time to prepare (certainly longer than the 5 business day minimum).

Some application requirements are vaguely expressed, often requiring submissions of ‘responses’ or ‘submissions’ to issues and there will likely be
disputes about whether something has been satisfactorily provided.

Numerous permit requirements can be triggered under different provisions for a given proposal and there will often be uncertainty about whether a particular permission is required, typically where the requirement is vaguely expressed in local schedules. Without knowing what permit
requirements are triggered, it will be impossible to know what application requirements might even apply.

For some applicants, the stakes for ensuring a permit application remains valid will be very high, for example where an applicant has paid a significant Metropolitan Planning Levy that is due to expire (MPL) or where applications are time critical (for example to benefit from transition provisions). (5) Given the potentially disastrous consequences6 of not satisfactorily responding to a notice, these changes will introduce uncertainty and risk for some applications before they even get to the start line. This is at a time when the government is seeking to establish greater certainty through other reforms (eg. codification of Rescode).

Clearly, the introduction of a ‘5 business day’ process for councils to assess and determine whether an application is ‘incomplete’ against extensive lists of application requirements is not ideal either. The new process will require the implementation of new workflows within council planning teams and demand additional resources. Given the current uncertain framework of application requirements, it is unlikely that this new process will deliver
“decision-ready” applications and pay any efficiency dividend during the assessment phase.

The new process is not mandatory, and it may be that some councils will choose to calmly assess the nature of a proposal and the permissions it requires, before making detailed requests for documents, which can more practically be made under section 54 (ie. within a 28 day period).

Without further improvements to reduce or clarify the operation of “application requirements”(as recommended by the Better Regulation Commissioner) this new process has the potential to create uncertainty for all stakeholders.

Any questions?
The HWL Ebsworth environment and planning team are specialists in extractive industry approvals and can help you better understand how this initiative may affect you. Please contact us.

Andrew Natoli, Partner
Address: Level 8, 447 Collins Street, Melbourne VIC 3000
Phone: 0417 101 236
Email: [email protected]
Website: ww.hwlebsworth.com.au

(1) Turning Best Practice into Common Practice – Planning and Building Approvals Process Review Report to Government (November, 2021).
(2)Ibid,
(3)See for example ML Design v Boroondara CC (Red Dot) [2005] VCAT 2088 at [12] to [14].
(4)For example, see Calodoukas v Moreland CC (includes Summary) (Red Dot) [2010] VCAT 498.
(5)While the Bill provides for the refunding of application fees for voided applications, it does not appear to provide for circumstances where a MPL certificate was lodged and expires before the
application can be re-lodged. The Bill does introduce a new process for obtaining an MPL exemption certificate where a levy has previously been paid for an identical application, but this requires
and application to the Minister and certificates are issued at the Minister’s discretion.
(6)There also does not appear any ability for a council to extend the time in which to respond to a notice where an applicant requires additional time to respond.

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