MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:29): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms TIERNEY: I move:
That the bill be now read a second time.
Incorporated speech as follows:
Victoria is widely regarded as having the best planning framework in Australia. This has given Victoria a significant competitive advantage over other states. However, we do not rest on our laurels. This government has long recognised the need to continually review the Planning and Environment Act 1987 and the planning system to make sure that it is modern and fit for purpose, recognising the changing times and needs of the community.
In December 2019, the Government commissioned the Commissioner for Better Regulation to review the planning and buildings approvals process and make recommendations to government on ways to streamline local and state government planning to remove delays and further support the delivery of essential housing and infrastructure.
As our economy recovers from COVID-19 and we look to maintain and build on our competitive advantage, the key will be to ensure that the planning system efficiently enables state infrastructure and urban and regional development projects. The planning system must continue to efficiently support government efforts to deliver the homes, jobs and services needed to support population growth and to support the economic growth that will drive Victoria’s recovery. The Commissioner’s recommendations have never been more important.
This Bill continues the commitment to strengthen the planning system. It is part of a record commitment of $111 million in the 2020–21 State budget to unlock Victoria’s planning system. It is only part of that commitment, there is much more to come, much of which does not require legislative change. However, this Bill demonstrates that we know that improving the efficiency of Victoria’s planning system will help make sure our state’s recovery isn’t held back by bureaucratic red tape or unnecessary delays. It does so by introducing essential protections and enforcement measures to deliver on the Act’s overarching objectives to provide for the fair, orderly, economic and sustainable use and development of land and balancing the present and future interests of all Victorians.
I will now outline the major provisions of the bill.
Strengthened protection for buildings of local heritage significance (Part 2 of the Bill)
Victorians were rightly outraged by the illegal demolition of the Corkman Hotel in 2016. For too long many developers have simply factored fines into the cost of doing business, as the current enforcement system in the Planning and Environment Act can inadvertently incentivise people to unlawfully demolish buildings of local heritage significance without a planning permit. While it is an offence under the Act to demolish a heritage building without a planning permit, the current maximum penalty of $198,264 is often significantly less than the potential economic value of developing the land. Even with a successful prosecution with a maximum penalty, a planning permit application can still be made to develop the land.
The measures in this Bill are aimed at stopping this from happening. Developers will no longer benefit or profit from unlawfully demolishing heritage buildings. The Bill proposes that a planning scheme may regulate or prohibit the development of land on which a ‘heritage building’ has been unlawfully demolished or allowed to fall into disrepair. The Bill therefore also includes a new definition of a ‘heritage building’ to mean a building which is a place, or forms part of a place, that has been given heritage protection under a planning scheme.
Under these circumstances, the Bill provides that a planning scheme may require that a permit for the development of the land must not be granted unless the development is for or includes the reconstruction, reinstatement or repair of the heritage building that is on the land or was on the land.
These provisions are strong deterrents and disincentives to the illegal demolition or allowing a heritage building to fall into disrepair, in addition to the penalty and enforcement regime in the Act. The aim is to prevent relevant persons from benefiting from these unlawful actions.
Importantly, the Bill also inserts a new Division 2A—Order prohibiting use or development of land for a period of time, in Part 6 of the PE Act. This new division will enable the Governor in Council, on recommendation from the Minister, to make an order that land must not be used and/or developed for a period of up to 10 years if the owner of the land has been convicted of a relevant offence (being an offence relating to unlawful demolition of a building) against section 126 of the Act.
The Bill also provides that this order runs with the land, to prevent the order being undermined by the sale of the land to another person. This is similar to existing enforcement provisions in the Heritage Act for buildings on the Victorian Heritage Register.
Consequential amendments are also made to the Building Act 1983 to prohibit a building surveyor from issuing a building permit in relation to land subject to the order.
These new provisions are a significant strengthening of the current enforcement regime and are expected to act as powerful disincentives to the unlawful demolition of buildings of local heritage significance, such as the Corkman Hotel.
Planning Compensation (Part 3 of the Bill)
Part 5 of the Planning and Environment Act currently contains a scheme by which an owner or occupier of land affected by a ‘planning blight’, that is, land reserved for a public purpose, may claim compensation. The Bill makes amendments to this part to address issues and risks related to the operation of that scheme.
The risk primarily exists where structure plans are incorporated into the planning scheme proposing public uses without a public acquisition overlay (PAO). The risk can be usefully captured by the question of whether parts of a structure plan amount to a ‘de facto PAO’ that would trigger compensation under Part 5 by virtue of section 98(1).
The introduction of the new Infrastructure Contributions Plan (ICP) regime in mid-2018 substantively overcomes this issue where an ICP is in place. However, the risk remains where there is no ICP, be that because an ICP is not in place yet or because an ICP is not proposed.
There is also a theoretical risk associated with permit refusals on the basis of inconsistency with the relevant structure plan, whereby a responsible authority may be liable to pay compensation under section 98(2) of the PE Act.
Only planning provisions that expressly state that land is reserved for a public purpose under the instrument will attract the operation of section 98(1)(a). At present, the only instrument intended to attract the operation of this provision is clause 45.01 (PAO) of the Victoria Planning Provisions. However, to enable flexibility as to the future form and content of planning schemes, the intent is to do so without specific reference to clause 45.01 or the name of a particular subordinate instrument (the PAO). The Bill makes the necessary amendments to section 98 to address this risk.
The Bill also removes the risk that a right to compensation under section 98(2) may exist where:
• a provision of a planning scheme indicates that a particular parcel of land is intended for a future public use;
• an owner or occupier of land applies for a planning permit that is not generally in accordance with the planning scheme provision because it proposes a use or development that is inconsistent with the proposed future public use set out in the relevant plan; and
• for these reasons, the responsible authority is required by the planning scheme to refuse a permit (and the responsible authority does refuse a permit).
Other technical drafting amendments to the ICP provisions also better reflect the intent that where land is identified as inner public purpose land, the compensation provisions of Part 5 of the Planning and Environment Act do not apply to that land.
Notices, publication and inspection of documents (Part 4, division 1 of the Bill)
The Planning and Environment Act contains a range of notification and publication requirements, as well as requirements that certain documents are made physically available for inspection. The COVID-19 pandemic and the need for social distancing measures highlighted the limitations in these requirements and the need for more flexibility.
Temporary measures are currently in place until 25 April 2021, that have enabled councils and other government offices to keep the planning system operating while access to offices for both staff and members of the public has been restricted. These temporary measures ‘deem’ the Act’s requirements to be met if a notice or documents are made available on the entity’s internet site.
As the temporary measures have been welcomed by local councils and the community, the Bill proposes to replace them with permanent provisions that reflect a more flexible and modern approach to making information available to members of the public.
The requirements for publication of notices or inspection of documents must be met by the new publication and inspection of documents and register requirements. New provisions clearly set out how the public availability requirements of the Act can be met through in person, electronic publication and electronic register requirements. This means requirements to make documents available for inspection will be able to be complied with by either online publication on an internet site maintained by the relevant entity or in-person inspection at the entity’s offices during office hours. Where these requirements are met by online publication, it is intended that entities would be required to continue to facilitate in-person inspection upon request. The documents or register can be made available at an agreed time and during the entity’s office hours.
The requirements for making a register available electronically are that a responsible authority or referral authority makes the register searchable and free of charge on an Internet site maintained by that authority.
The Bill also includes provisions to ensure that individuals are afforded appropriate privacy protections where the notice and publication requirements are met electronically. A responsible authority must not disclose personal information about an individual, other than the land subject to an application or permit, without the individual’s consent.
These important new flexible provisions are also in line with recommendations from the Commissioner for Better Regulation, who has called for a more modern and user-friendly basis for public notice of an application.
The Bill also delivers two of the Commissioner’s recommendations that require legislative change to implement.
Firstly, currently when Planning Panels Victoria (PPV) reviews a proposed planning scheme amendment, the Panel provides a report to the relevant planning authority (most often the council or the Minister for Planning). The planning authority can embargo the release of the report for up to 28 days. The Bill amends section 26 of the Act to require that the planning authority must make the panel’s report available within 10 business days after the day the planning authority received the report. This represents a significant reduction in time for the proponents of the amendment and any other affected parties to be able to access the report.
Secondly, the Bill includes a further amendment aimed at speeding up time and providing greater access to information. Currently, councils (as the planning authority) can abandon an amendment at any time during the planning scheme amendment process. While section 28 provides that they must notify the Minister if they abandon an amendment there is no requirement for councils to inform the community of their reasons for abandoning an amendment. The Bill amends section 28 to require that within 10 business days after the day on which a planning authority tells the Minister about its decision to abandon an amendment or part of an amendment, the planning authority must publish a notice of the decision on its internet site. The notice of decision must include a statement of reasons for the decision and any other prescribed manner and be published for a period of at least two months. This amendment will ensure that proponents and the community can easily access the information.
Panel Hearings (Part 4, Division 2)
Part 8 of the Act deals with the operation of planning panels, which independently assess planning proposals and major projects. This work involves considering submissions, conducting hearings and preparing reports.
COVID-19 restrictions have also highlighted that the current provisions in Part 8 do not allow PPV to readily conduct hearings remotely using digital technology.
The Bill inserts new provisions that will enable PPV to conduct hearings in person or by audio- or audio-visual link, including allowing PPV to require a person or the person’s representative to appear or be heard in person at a specified location or by audio link or audio-visual link.
These new provisions aim to improve the efficiency of the panel system, contributing to Victoria’s post COVID-19 economic recovery. For example, these provisions will make it cheaper for all parties and more efficient to conduct small hearings with one or two submitters in regional Victoria. They also provide greater flexibility for PPV to continue to hold hearings and reduce delays during other emergency situations such as bushfire or flooding.
To ensure that PPV hearings are still a public process, the Bill also includes new provisions that require the audio link or audio-visual link to be available to be heard by members of the public as either an audio link or audio-visual link.
Extractive industry permit expiry (Part 5, Division 1 of the Bill)
Victoria needs access to high quality and competitively priced extractive resources to ensure we have the sand, rock and gravel to make affordable housing, roads and infrastructure.
To give effect to a government commitment in the 2018 Joint Ministerial Statement—Extractive Resources (Minister for Resources and Minister for Planning) to protect continuity of supply from existing quarries by amending planning rules to provide greater flexibility on inactivity of greater than two years, the Bill amends section 68A to provide that a permit authorising the use of land for extractive industry expires if the use authorised by the permit is discontinued for a period of 10 years.
This will enable quarries to quickly increase or decrease production in response to market conditions. Currently, where the use of a permitted quarry is discontinued for a period of two years, the permit may lapse. This poses risks for the sector where a quarry may pause extraction, enter a care and maintenance phase and subsequently risk the security of their planning permit.
Miscellaneous Amendments (Part 5 of the Bill)
In preparing a planning scheme amendment a planning authority must have regard to the Minister’s directions. The Bill inserts a new section 12(1A) to expressly provide that the Minister has the power to issue such directions in relation to the preparation of an amendment to a planning scheme.
Following reforms to the structure and operation of policy frameworks in the VPPs and all planning schemes in July 2018 (Amendment VC148) it is no longer necessary for planning schemes to be required to include a Municipal Strategic Statement.
To ensure the PE Act is consistent with VC148 the Bill makes the necessary amendments to omit reference to Municipal Strategic Statements.
The Bill also introduces amendments to establish a transparent and equitable funding system for structure planning costs whereby all landowners who benefit from the Precinct Structure Planning (PSP) approval contribute to the costs. The Victorian Planning Authority (VPA) currently undertakes the preparation of structure plans and associated planning scheme amendments which rezone land for a variety of urban purposes. This work results in a significant uplift in the value of the affected land.
A portion of the VPAs costs for precinct structure planning are third party funded via voluntary agreements, but not necessarily by all landowners. This means that while all landowners may enjoy the benefit, they can choose not to contribute to the cost. The voluntary nature of these agreements tends to cap the amount that can be recovered.
The Bill amends sections 46GG, 46I and 46IA which will enable the VPA to cost recover and establish a transparent, efficient and equitable approach to PSP planning.
Improving the efficiency of Victoria’s planning system will help ensure the State’s recovery isn’t held back by red tape and unnecessary delays. As Victoria continues to rebuild from the COVID-9 pandemic, we need a planning system that is set up to drive growth and create jobs. These reforms alone will not do this, but they are an integral part of our significant investment and plan to revamp the planning system.
These reforms build on our strengths and will help us keep our competitive advantage over other jurisdictions as we deliver major projects and boost construction of social and affordable housing and the jobs that go with them.
I commend the Bill to the house.