Planning Legislation Amendment Act 2009

i Planning Legislation Amendment Act 2009 No. 66 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO THE PLANNING AND ENVIRONMENT ACT 1987 3 3 Exemption from giving notice 3 4 Responsible authority to consider all applications 3 5 New Part 4AA inserted 4 PART 4AA—DEVELOPMENT ASSESSMENT COMMITTEES 4 Division 1—General 4 97MA Definitions 4 Division 2—Establishment and functions of DACs 7 97MB Governor in Council may establish development assessment committees 7 97MC Variation or revocation of order establishing DAC 8 97MCA Referral to Advisory Committee 9 97MD Functions of a DAC 9 97ME DAC must consider all applications within its operational area 10 97MF Powers of a DAC 11 97MG Responsible authority to provide documents and information to DAC 11 97MH Responsible authority to provide assistance to DAC 11 97MJ Decision of DAC taken to be decision of responsible authority 12 -- 1 of 42 -- Section Page ii Division 3—Membership of DAC 12 97MK Members 12 97ML Alternate members 13 97MM Removal, suspension or resignation of members 14 97MN Vacancies 15 97MO Minister to publish details of members 15 97MP Conditions of membership 16 97MQ Payment of members 16 Division 4—Procedure of DAC 16 97MR General procedures 16 97MS Procedures at meetings of a DAC 17 97MT Validity of decisions 17 97MTA Meetings to be open to the public 18 97MU Additional procedures 18 97MV Application of section 144 19 Division 5—Probity requirements for DAC members 19 Subdivision 1—General 19 97MW Definition 19 Subdivision 2—Conduct principles 19 97MX Conduct principles for DAC members 19 Subdivision 3—Misuse of position 20 97MY Definition 20 97MZ Misuse of position 21 Subdivision 4—Conflict of interests 22 97MZA Disclosure of conflicts of interest by DAC members 22 97MZB Persons to disclose interests when providing advice or report 22 97MZC Conflict of interest 23 97MZD Direct interest 24 97MZE Indirect interest by close association 24 97MZF Indirect interest that is an indirect financial interest 27 97MZG Indirect interest because of conflicting duties 28 97MZH Indirect interest because of receipt of an applicable gift 29 97MZI Indirect interest as a consequence of becoming an interested party 30 -- 2 of 42 -- Section Page iii Subdivision 5—Returns of interests of DAC members 30 97MZJ Application of Subdivision 30 97MZK Definition 30 97MZL DAC members to submit primary returns 30 97MZM DAC members to submit ordinary returns 32 Subdivision 6—Register of interests of DAC members 33 97MZN Secretary to maintain register 33 97MZO Inspection of register 33 97MZP Member may inspect records 34 97MZQ Persons not to publish information from register 34 97MZR Department employees must not divulge or use information 34 97MZS Removal of returns from register 35 97MZT Retention of returns of ceased members 35 PART 3—AMENDMENTS TO OTHER ACTS 36 6 Amendment to Docklands Act 1991 36 7 Amendment to the Heritage Act 1995 36 8 Amendment to the Local Government Act 1989 37 9 Amendments to the Melbourne Convention and Exhibition Trust Act 1996 37 PART 4—REPEAL OF AMENDING ACT 38 10 Repeal of amending Act 38 ═══════════════ ENDNOTES 39 -- 3 of 42 -- 1 Planning Legislation Amendment Act 2009 † No. 66 of 2009 [Assented to 17 November 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Planning and Environment Act 1987— (i) to enable certain applications for planning permits and amendments to planning permits to be decided on by Victoria -- 4 of 42 -- Part 1—Preliminary Planning Legislation Amendment Act 2009 No. 66 of 2009 2 development assessment committees; and (ii) to enable growth areas to be declared anywhere in Victoria; and (b) to amend the Docklands Act 1991 to amend the objective of the Victorian Urban Development Authority; and (c) to amend the Heritage Act 1995 to increase the maximum penalty that may be prescribed for an infringement offence; and (d) to amend the Local Government Act 1989 to provide an exception from a conflict of interest provision for a member of a development assessment committee; and (e) to amend the Melbourne Convention and Exhibition Trust Act 1996 to clarify and broaden the powers and functions of the Melbourne Convention and Exhibition Trust. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 5 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 3 PART 2—AMENDMENTS TO THE PLANNING AND ENVIRONMENT ACT 1987 3 Exemption from giving notice After section 20(5) of the Planning and Environment Act 1987 insert— "(6) The Minister cannot, under this section, exempt a planning authority or himself or herself from any requirement if the amendment is to include an Activity Centre Zone for a Relevant Activity Area within the meaning of Part 4AA or to amend the boundaries of such a Zone.". 4 Responsible authority to consider all applications (1) In section 58 of the Planning and Environment Act 1987, for "The responsible authority" substitute "Subject to subsection (2), the responsible authority". (2) At the end of section 58 of the Planning and Environment Act 1987 insert— "(2) A responsible authority must not consider or make a decision in respect of a DAC application within the meaning of Part 4AA.". s. 3 See: Act No. 45/1987. Reprint No. 8 as at 17 August 2005 and amending Act Nos 18/2005, 32/2006, 33/2006, 80/2006 and 47/2007. LawToday: www. legislation. vic.gov.au -- 6 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 4 5 New Part 4AA inserted After Part 4 of the Planning and Environment Act 1987 insert— "PART 4AA—DEVELOPMENT ASSESSMENT COMMITTEES Division 1—General 97MA Definitions (1) In this Part— DAC means a development assessment committee established under section 97MB; DAC application, in relation to a DAC, means an application for a permit or an amendment to a permit that is within the operational area of that DAC; operational area, in relation to a DAC, means— (a) the classes of applications for permits described in section 97MD(1)(a) that are to be decided on by that DAC; and (b) the types of amendments to permits described in section 97MD(1)(b) that are to be decided on by that DAC. s. 5 -- 7 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 5 Relevant Activity Area means any of the suburbs listed in Column 1 of the following Table— Column 1 Suburb Column 2 Municipal District in which suburb is located: Municipal district of: Airport West Moonee Valley City Council Box Hill Whitehorse City Council Broadmeadows Hume City Council Camberwell Boroondara City Council Chadstone Stonnington City Council Cheltenham Kingston City Council Coburg Moreland City Council Cranbourne Casey City Council Dandenong Greater Dandenong City Council Doncaster Manningham City Council Epping Whittlesea City Council Footscray Maribyrnong City Council Frankston Frankston City Council Geelong Greater Geelong City Council Glen Waverley Monash City Council Greensborough Banyule City Council Hawthorn Boroondara City Council Maribyrnong Maribyrnong City Council Moonee Ponds Moonee Valley City Council Narre Warren Casey City Council s. 5 -- 8 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 6 Column 1 Suburb Column 2 Municipal District in which suburb is located: Municipal district of: Prahran Stonnington City Council South Yarra Stonnington City Council Preston Darebin City Council Ringwood Maroondah City Council Sunshine Brimbank City Council Sydenham Brimbank City Council Wantirna South Knox City Council Werribee Wyndham City Council Relevant Activity Centre Zone means a contiguous area designated in a planning scheme in respect of a Relevant Activity Area as an Activity Centre Zone. (2) Despite anything to the contrary in this Act— (a) not more than one Activity Centre Zone may be designated in a planning scheme in respect of each Relevant Activity Area other than Preston; and (b) not more than 2 Activity Centre Zones may be designated in a planning scheme in respect of the Preston Relevant Activity Area. s. 5 -- 9 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 7 Division 2—Establishment and functions of DACs 97MB Governor in Council may establish development assessment committees (1) The Governor in Council, on the recommendation of the Minister, may by order published in the Government Gazette, establish one or more development assessment committees. (2) An order establishing a DAC must specify— (a) the class or classes of applications for permits to be decided on by the DAC; and (b) the area or areas in a Relevant Activity Centre Zone or Zones for which the DAC is established and to which any such class of application applies. (3) An area or areas for which a DAC is established— (a) may be specified in the order by reference to a map or plan including a planning scheme document; and (b) may include land that covers one or more, or parts of one or more, municipal districts. (4) An order under this section takes effect from the day that it is published in the Government Gazette or, if a later day is specified in the order, on that later day. (5) The Minister must publish on the Department's Internet site— (a) the name of each DAC established by an order under this section; and s. 5 -- 10 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 8 (b) the class or classes of applications for permits to be decided on by that DAC; and (c) the area or areas for which the DAC is established to which any such class of application applies. 97MC Variation or revocation of order establishing DAC (1) The Governor in Council, on the recommendation of the Minister, may by order published in the Government Gazette— (a) revoke an order under section 97MB; or (b) vary an order under section 97MB to change— (i) the class or classes of applications for permits to be decided on by a DAC; and (ii) the area or areas of Victoria to which any such class of application applies. (2) An order under this section takes effect from the day that it is published in the Government Gazette or, if a later day is specified in the order, on that later day. (3) A reference in this Part to an order under section 97MB includes the order as varied from to time under this section. (4) The Minister must publish on the Department's Internet site the details of any variations to an order made under subsection (1)(b). s. 5 -- 11 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 9 97MCA Referral to Advisory Committee (1) Before making a recommendation to the Governor in Council under section 97MB or 97MC, the Minister must refer the matter to an Advisory Committee under section 151 for advice as to the classes of applications for permits that are to be decided on by the DAC. (2) The Advisory Committee must consult with the following before giving advice to the Minister under this section— (a) any municipal council for the area or areas for which the DAC is to be established; (b) the owners and occupiers of land that it believes may be materially affected by the proposal; (c) any public authority that it believes may be materially affected by the proposal. 97MD Functions of a DAC (1) The functions of a DAC are to consider and decide under Part 4— (a) any application for a permit— (i) that is within the class or classes of applications for permits specified in the order under section 97MB establishing that DAC; and (ii) that is within the area or areas specified in that order for which the DAC is established and to which the application applies; and s. 5 -- 12 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 10 (b) any application for an amendment to a permit where— (i) the decision to grant the permit was made by the DAC and the permit, when amended, will be within a class of permits referred to in paragraph (a); or (ii) the decision to grant the permit was made by the responsible authority and the permit, once amended, will be within a class of permits referred to in paragraph (a). (2) Despite subsection (1), a DAC must not decide or continue to decide an application for a permit— (a) that is required or directed to be referred to the Minister under Division 4 of Part 4; or (b) to which Division 5 of Part 4 applies; or (c) that is directed to be referred to the Minister under Division 6 of Part 4. (3) Sections 59, 60, 61, 62, 73(2), 84(1), 97B and 197 apply in respect of an application for a permit or an amendment to a permit within the operational area of a DAC as if a reference to the responsible authority were a reference to that DAC. 97ME DAC must consider all applications within its operational area A DAC must consider every application for a permit or an amendment to a permit within its operational area. s. 5 -- 13 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 11 97MF Powers of a DAC In deciding a DAC application, the DAC has all the powers that the responsible authority would have had to decide on the application if it were not a DAC application. 97MG Responsible authority to provide documents and information to DAC To enable a DAC to decide on a DAC application, the responsible authority must provide the following to each member of the DAC constituted to decide that application— (a) a copy of the application; (b) a copy of any comments from a referral authority relating to the application; (c) a copy of any report of a member of staff of the responsible authority in respect of the application; (d) any other document or information relating to the application that is relevant to deciding the application; (e) any other document or information that has been reasonably requested by the DAC to assist it in deciding on the application. 97MH Responsible authority to provide assistance to DAC To enable a DAC to decide on a DAC application, the responsible authority must provide the DAC with any technical advice, administrative support and any other support reasonably required by the DAC. s. 5 -- 14 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 12 97MJ Decision of DAC taken to be decision of responsible authority (1) A decision or failure to make a decision by a DAC on a DAC application is taken to be a decision or failure to make a decision on that application by the responsible authority. (2) The responsible authority must ensure that the register of applications kept under section 49 specifies whether a decision on an application for a permit or an amendment to a permit relating to its municipal district has been made by a DAC. (3) Any reference in Division 1, 1A, 2 or 3 of Part 4 or in sections 98(2), 99(a)(i) or 99(a)(iii) to an application for a permit or an amendment to a permit or a permit or amendment to a permit having been decided in favour of by a responsible authority or having been granted, issued, refused or failed to be granted within the prescribed time by a responsible authority, is taken to include an application for a permit or an amendment to a permit that has been decided on by a DAC or a permit or amendment to a permit that a DAC has decided to grant or refused to grant or has failed to grant within the prescribed time. Division 3—Membership of DAC 97MK Members (1) A DAC is to consist of the following members in relation to DAC applications applying to land in a particular municipal district— s. 5 -- 15 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 13 (a) a Chairperson nominated by the Minister from the list of persons prepared under subsection (3); (b) 2 other members nominated by the Minister; (c) 2 other members, nominated by the municipal council for the municipal district, who must be drawn from a group of 5 persons who are councillors or members of staff of that council and who have been nominated by that council. (2) The members of the DAC are to be appointed by the Governor in Council. (3) The Minister must prepare a list of names of persons available for appointment as Chairperson or Alternate Chairperson of a DAC and must consult with the following bodies in respect of that list before making any nomination from that list— (a) the Municipal Association of Victoria; (b) the Victorian Local Government Association. 97ML Alternate members (1) There are to be the following alternate members of a DAC in relation to a DAC application applying to land in a particular municipal district— (a) an alternate Chairperson nominated by the Minister from the list of persons prepared by the Minister under section 97MK(3); (b) an alternate member nominated by the Minister for each member of the DAC nominated by the Minister; s. 5 -- 16 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 14 (c) 3 other alternate members who are to be the persons forming part of the group of persons referred to in section 97MK(1)(c) who were not appointed as members of the DAC under section 97MK. (2) Alternate members of a DAC are to be appointed by the Governor in Council. (3) Subject to section 97MS(d)(ii), a person appointed as an alternate member for a member of a DAC is to act for that member if the member is incapable of performing his or her duties of office or is to be absent for any other reason. (4) Subject to section 97MS(d)(ii), a municipal council may nominate one of the 3 alternate members of a DAC referred to in subsection (1)(c) to act for a member of that DAC nominated by that council if he or she is incapable of performing his or her duties of office or is to be absent for any other reason. (5) An alternate member who is nominated to act for a member under subsection (4) is to act for that member. (6) An alternate member of a DAC while acting for a member has the powers, authority and duties of that member. 97MM Removal, suspension or resignation of members (1) The Minister may suspend a member or an alternate member of a DAC for up to 3 months if the Minister believes on reasonable grounds that the member has— (a) breached any requirement in Division 5; or s. 5 -- 17 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 15 (b) acted corruptly in performing his or her duties as a member of the DAC. (2) The Governor in Council may at any time remove a member or an alternate member of a DAC from office. (3) A member or an alternate member of a DAC may resign by giving a written resignation to the Minister. 97MN Vacancies (1) The office of a member or an alternate member of a DAC becomes vacant if the member— (a) becomes insolvent under administration; or (b) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; (c) retires, resigns or is removed from office; or (d) dies or becomes permanently incapable of performing the duties of office. (2) If there is a vacancy in the office of a member or an alternate member of a DAC, the Governor in Council may appoint a member or an alternate member to fill the vacancy in accordance with section 97MK or 97ML (as the case requires). 97MO Minister to publish details of members The Minister must publish on the Department's Internet site the following details relating to the members and alternate members of a DAC— s. 5 -- 18 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 16 (a) the names of the members and alternate members of the DAC from time to time; and (b) if the DAC is established in respect of more than one municipal district, the members and alternate members who constitute the DAC in respect of each municipal district. 97MP Conditions of membership A member or an alternate member of a DAC— (a) holds office for the period specified in the instrument of appointment, which must be a period of not more than 3 years; and (b) holds office on the terms and conditions determined by the Minister; and (c) may be reappointed. 97MQ Payment of members Each member or alternate member of a DAC is entitled to receive any fees and allowances fixed by the Minister in respect of that member, unless the person is employed by or on behalf of the Crown or a municipal council or is a member of a municipal council. Division 4—Procedure of DAC 97MR General procedures In deciding on a DAC application, the DAC— (a) must act according to equity and good conscience without regard to technicalities or legal forms; and (b) is bound by the rules of natural justice. s. 5 -- 19 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 17 97MS Procedures at meetings of a DAC The following provisions apply to a DAC in deciding on a DAC application— (a) if either the Chairperson or the alternate Chairperson is for any reason unable to attend a meeting of the DAC, the members present must elect an acting Chairperson for that meeting; (b) the quorum for a meeting of the DAC is 3 members (including any alternate member acting for a member) of the DAC; (c) the DAC may act despite a vacancy in its membership as long as there is a quorum; (d) if a member of the DAC absents himself or herself from the DAC after it has commenced to consider an application— (i) the DAC may continue to consider that application; and (ii) despite section 97ML, the absent member is not to be replaced by an alternate member during the consideration of that application. 97MT Validity of decisions An act or decision of a DAC is not invalid by reason only of— (a) a vacancy in the office of a member or an alternate member of the DAC; or (b) a defect or irregularity in or in connection with the appointment of a member or an alternate member of the DAC; or s. 5 -- 20 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 18 (c) in the case of a person purporting to act as a member or an alternate member of the DAC— (i) the occasion for the appointment of the person to act had not arisen; or (ii) there was a defect or irregularity in or in connection with the appointment of the member; or (iii) the appointment or the occasion for the person to act had ceased. 97MTA Meetings to be open to the public (1) Unless subsection (2) applies, any meeting of a DAC must be open to members of the public. (2) A DAC may close a meeting to the public if the meeting is discussing confidential information or legal advice or any other matter that the DAC considers would prejudice the DAC or another person. (3) If a DAC decides to close a meeting to members of the public, the reason must be recorded in the minutes of the meeting. (4) A DAC must give public notice of a meeting of the DAC if practicable. 97MU Additional procedures (1) In addition to the procedures set out in this Division, a DAC must act in accordance with any procedures determined by the Minister and published in the Government Gazette from time to time. (2) Subject to this Division, a DAC may regulate its own procedures. s. 5 -- 21 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 19 97MV Application of section 144 Section 144 applies in respect of a meeting to decide a DAC application as if a reference to the responsible authority were a reference to the DAC. Division 5—Probity requirements for DAC members Subdivision 1—General 97MW Definition In this Division (except in Subdivisions 5 and 6), a member of a DAC includes an alternate member of that DAC when acting for a member of the DAC. Subdivision 2—Conduct principles 97MX Conduct principles for DAC members In performing the role of a member of a DAC, a member must— (a) act with integrity; and (b) impartially decide DAC applications in accordance with this Act and the relevant planning scheme; and (c) not improperly seek to confer an advantage or disadvantage on any person; and (d) avoid conflicts between his or her public duties as a member of the DAC and his or her personal interests and obligations; and s. 5 -- 22 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 20 (e) act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person; and (f) treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other members of the DAC, employees of a responsible authority providing services to the DAC and other persons; and (g) endeavour to ensure that public resources are used prudently and solely in the public interest; and (h) act lawfully; and (i) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the DAC. Subdivision 3—Misuse of position 97MY Definition In this Subdivision, confidential information means information provided to a member of a DAC— (a) which was identified as being provided in confidence by the responsible authority or person who provided the information; or (b) which the DAC has identified as being confidential. s. 5 -- 23 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 21 97MZ Misuse of position (1) A person who is, or has been, a member of a DAC must not misuse his or her position or former position— (a) to gain or attempt to gain, directly or indirectly, an advantage for themselves or for any other person; or (b) to cause, or attempt to cause, detriment to the DAC or to a responsible authority. Penalty: 100 penalty units. (2) For the purposes of this section, circumstances involving the misuse of a position or former position by a person who is, or has been, a member of a DAC include— (a) making improper use of information acquired as a result of being a member of the DAC; or (b) disclosing information that is confidential information; or (c) seeking to improperly influence a person who has a duty or is engaged to provide advice, a report or other services, including administrative services, to the DAC; or (d) attempting to exercise a power or function that he or she is not authorised to exercise; or (e) using public funds improperly or in an unauthorised manner. s. 5 -- 24 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 22 (3) This section— (a) has effect in addition to, and not in derogation from, any Act or law relating to the criminal or civil liability of a member of a DAC; and (b) does not prevent the institution of any criminal or civil proceedings in respect of that liability. Subdivision 4—Conflict of interests 97MZA Disclosure of conflicts of interest by DAC members (1) If a member of a DAC has a conflict of interest within the meaning of section 97MZC relating to DAC application, the member must without delay advise the Secretary of that conflict and take no part in deciding on the application. (2) A member of a DAC who, without reasonable excuse, fails to comply with this section is guilty of an offence and liable to a penalty of not more than 100 penalty units. 97MZB Persons to disclose interests when providing advice or report (1) This section applies to members of staff of a responsible authority and other persons who have a duty or are engaged to provide advice or a report to a DAC. (2) A person, who is providing advice or a report to a meeting of a DAC or otherwise to a DAC and who has a direct interest or an indirect interest (within the meaning of this Subdivision) in a matter to which the advice or report relates, must not, without reasonable excuse, fail to disclose the type of s. 5 -- 25 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 23 interest when providing the advice or report to the DAC. Penalty: 50 penalty units. (3) A disclosure made by a person under subsection (2) must be recorded in the minutes of any relevant meeting of the DAC. (4) A person who has made a disclosure under subsection (2) must disclose the nature of the interest if required to make that disclosure by the DAC. 97MZC Conflict of interest (1) In this Subdivision, a person has a conflict of interest in respect of a matter if the person has a direct interest or indirect interest in the matter. (2) A person has a direct interest in a matter if the person has an interest of a kind described in section 97MZD. (3) A person has an indirect interest in a matter if the person has— (a) a close association as specified in section 97MZE; or (b) an indirect financial interest as specified in section 97MZF; or (c) a conflicting duty as specified in section 97MZG; or (d) received an applicable gift as specified in section 97MZH; or (e) become an interested party as specified in section 97MZI. (4) A person does not have a conflict of interest in a matter if the direct interest or indirect interest of the person is so remote or s. 5 -- 26 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 24 insignificant that the direct interest or indirect interest could not reasonably be regarded as capable of influencing any actions or decisions of the person in relation to the matter. 97MZD Direct interest (1) A person has a direct interest in a matter if there is a reasonable likelihood that the benefits, obligations, opportunities or circumstances of the person would be directly altered if the matter is decided in a particular way. (2) Without limiting subsection (1), a person has a direct interest in a matter if— (a) there is a reasonable likelihood that the person will receive a direct benefit or loss that can be measured in financial terms if the matter is decided in a particular way; or (b) there is a reasonable likelihood that the residential amenity of the person will be directly affected if the matter is decided in a particular way. 97MZE Indirect interest by close association (1) In this section— daughter of a person means a biological daughter, stepdaughter, adopted daughter, or female child for whom the person has custodial responsibilities; direct relative of a person means the spouse, domestic partner, son, daughter, mother, father, brother or sister of the person; s. 5 -- 27 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 25 domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); family member of a person means— (a) a spouse or domestic partner of the person; or (b) a son, daughter, mother, father, brother or sister that regularly resides with the person; relative of a person means— (a) a direct relative of the person; (b) a direct relative of a person who is the direct relative of the person; s. 5 -- 28 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 26 son of a person means a biological son, stepson, adopted son or male child for whom the person has custodial responsibilities. (2) A person has an indirect interest by close association in a matter if— (a) a family member of the person has a direct interest or an indirect interest in a matter; or (b) a relative of the person has a direct interest in a matter; or (c) a member of the person's household has a direct interest in a matter. (3) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and (c) a person is not a domestic partner of another person only because they are co-tenants. s. 5 -- 29 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 27 97MZF Indirect interest that is an indirect financial interest (1) A person has an indirect financial interest in a matter if the person is likely to receive a benefit or incur a loss, measurable in monetary terms, as a consequence of a benefit received or loss incurred by another person who has a direct or indirect interest in the matter. (2) Without limiting subsection (1), a person has an indirect financial interest that is a conflict of interest if— (a) the person has a beneficial interest in shares of a company or other body that has a direct interest in the matter, except in the circumstances specified in subsection (3); (b) the person is owed money from another person and that other person has a direct interest in the matter. (3) If a person, and family members of the person, hold shares in a company or body that has a direct or indirect interest in a matter with a combined total value that does not exceed $10 000 and the total value of issued shares of the company or body exceeds $10 million, the person's indirect financial interest is not a conflict of interest. (4) Subsection (2)(b) does not apply if the other person is an authorised deposit-taking institution. (5) For the purposes of determining the value of shares under this section, the share value is to be taken from— (a) the close of business on the most recent of 30 June or 31 December; or s. 5 -- 30 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 28 (b) if the person has submitted an ordinary return to the Secretary (within the meaning of Subdivision 5) since the most recent of 30 June or 31 December, the close of business on the date the return was submitted. 97MZG Indirect interest because of conflicting duties (1) A person has an indirect interest in a matter because of a conflicting duty if the person— (a) is a manager or a member of a governing body of a company or body that has a direct interest in a matter; (b) is a partner, consultant, contractor, agent or employee of a person, company or body that has a direct interest in a matter; (c) is a trustee for a person who has a direct interest in a matter. (2) A person has an indirect interest in a matter because of a conflicting duty if the person held a position or role specified in subsection (1) and, in that position or role, dealt with the matter. (3) A person does not have an indirect interest because of a conflicting duty— (a) by virtue of the fact that the person is an employee in the service of the Crown or of a body established by or under any Act for a public purpose, if the person has no current or expected responsibilities as that employee in relation to a matter; or s. 5 -- 31 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 29 (b) by virtue of the fact that the person holds a position in a not-for-profit organisation for which the person receives no remuneration and the person was appointed or nominated to that position by a municipal council; or (c) by virtue of the fact that the person is the Mayor or Chief Executive Officer of a municipal council or a councillor or member of staff of that council; (d) if the person holds a position that has been declared for the purposes of this section by the Minister in an order published in the Government Gazette. 97MZH Indirect interest because of receipt of an applicable gift (1) In this section, applicable gift means one or more gifts with a total value of $200 or more, received from a person or persons specified in subsection (2), in the 5 years preceding the decision or the exercise of the power, duty or function relating to the matter. (2) A person has an indirect interest in a matter if the person has received an applicable gift, directly or indirectly, from— (a) a person who has a direct interest in the matter; or (b) a director, contractor, consultant, agent or employee of a person, company or body that the person knows has a direct interest in a matter; or (c) a person who gives the applicable gift to the person on behalf of a person, company or body that has a direct interest in the matter. s. 5 -- 32 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 30 97MZI Indirect interest as a consequence of becoming an interested party A person has an indirect interest in a matter if the person has become an interested party in the matter by initiating civil proceedings or a proceeding in the Tribunal in relation to the matter or becoming a party to civil proceedings or a proceeding in the Tribunal in relation to the matter. Subdivision 5—Returns of interests of DAC members 97MZJ Application of Subdivision This Subdivision does not apply to any member or alternate member of a DAC who is required to submit returns under section 81 of the Local Government Act 1989. 97MZK Definition In this Subdivision return period, in relation to the ordinary return of a member or an alternate member of a DAC, means— (a) if the last return of the member was a primary return, the period between the date of the primary return and the date the ordinary return is submitted; or (b) if the last return of the member was an ordinary return, the period between the date of that return and the date the current ordinary return is submitted. 97MZL DAC members to submit primary returns (1) Each member and alternate member of a DAC must submit a primary return in accordance with subsection (2) to the Secretary within 30 days after his or her appointment, unless that member is s. 5 -- 33 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 31 reappointed after completion of his or her term of office. (2) A member or an alternate member of a DAC must disclose the following information in the primary return as at the date of the primary return— (a) the name of any company or other body in which he or she holds any office whether as a director or otherwise; (b) the name or description of any company or body in which he or she holds a beneficial interest unless the total value of the interest does not exceed $10 000 and the total value of issued shares of the company or body exceeds $10 million; (c) the address or description of any land in an area of Victoria for which the DAC is established, or of any adjoining land, in which he or she has any beneficial interest other than by way of security for any debt; (d) a concise description of any trust in which he or she holds a beneficial interest or of which he or she is a trustee and a member of his or her family holds a beneficial interest; (e) any other substantial interest whether of a pecuniary nature or not of him or her or of a member of his or her family of which he or she is aware and which he or she considers might appear to raise a material conflict between his or her private interest and his or her public duty as a member or alternate member of a DAC. s. 5 -- 34 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 32 97MZM DAC members to submit ordinary returns (1) Each member and alternate member of a DAC must submit an ordinary return in accordance with subsection (2) to the Secretary within 30 days after the anniversary of his or her appointment each year. (2) A member or an alternate member of a DAC must disclose in an ordinary return the following information in relation to the return period— (a) if he or she has held an office whether as director or otherwise in any company or body, corporate or unincorporate— the name of the company or body; (b) the name or description of any company or body in which he or she holds or has held a beneficial interest unless the total value of the interest does or did not exceed $10 000 and the total value of issued shares of the company or body exceeds $10 million; (c) the address or description of any land in any area of Victoria for which the DAC is established, or of any adjoining land, in which he or she has any beneficial interest other than by way of security for any debt; (d) a concise description of any trust in which he or she held a beneficial interest or of which he or she is a trustee and a member of his or her family held a beneficial interest; s. 5 -- 35 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 33 (e) particulars of any gift of or above the amount or value of $200 received by him or her, either directly or indirectly, from a person other than a relative (within the meaning of section 97MZE) of him or her; (f) any other substantial interest, whether of a pecuniary nature or not, of him or her or of a member of his or her family of which he or she is aware and which he or she considers might appear to raise a material conflict between his or her private interest and his or her public duty as a member or alternate member of a DAC. Subdivision 6—Register of interests of DAC members 97MZN Secretary to maintain register The Secretary must maintain a register of the interests of each member and alternate member of a DAC consisting of the last 3 returns that those members were required to submit under Subdivision 5. 97MZO Inspection of register (1) The Secretary must allow a person to inspect the register if that person has previously made written application to the Secretary to do so and the application meets the requirements of the regulations (if any). (2) The register may be inspected at the offices of the Department during normal office hours. s. 5 -- 36 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 34 (3) The Secretary must take all reasonable steps to ensure that no person, other than a person who has made an application in accordance with this section, has access to or is permitted to inspect the register or any return. (4) The Secretary must maintain a record of the names of persons who have inspected the register of interests under subsection (2). 97MZP Member may inspect records A member or an alternate member of a DAC whose interests are recorded in the register may inspect the record kept under section 97MZO(4) of names of persons who have inspected his or her personal records. 97MZQ Persons not to publish information from register A person must not publish any information derived from the register unless that information is a fair and accurate summary or copy of the information derived from the register. Penalty: 20 penalty units. 97MZR Department employees must not divulge or use information A person employed by the Department must not, whether before or after he or she ceases to be so employed— (a) make a record of, divulge or communicate to any person any information in relation to a matter dealt with under Subdivision 5 or this Subdivision that is gained by or conveyed to him or her during his or s. 5 -- 37 of 42 -- Part 2—Amendments to the Planning and Environment Act 1987 Planning Legislation Amendment Act 2009 No. 66 of 2009 35 her employment with the Department; or (b) make use of that information— for any purpose other than the discharge of his or her official duties under Subdivision 5 or this Subdivision. Penalty: 50 penalty units. 97MZS Removal of returns from register As soon as practicable after a person ceases to be a member or an alternate member of a DAC, the Secretary must remove all the returns submitted by that person from the register. 97MZT Retention of returns of ceased members The Secretary must— (a) retain the returns of a member or an alternate member of a DAC for a period of 3 years after the person has ceased to be such a member; and (b) at the end of that period, cause the returns to be destroyed. __________________". __________________ s. 5 -- 38 of 42 -- Part 3—Amendments to Other Acts Planning Legislation Amendment Act 2009 No. 66 of 2009 36 PART 3—AMENDMENTS TO OTHER ACTS 6 Amendment to Docklands Act 1991 In section 9 of the Docklands Act 1991 omit "and to complete its involvement in that development by 31 December 2005". 7 Amendment to the Heritage Act 1995 In section 185(k) of the Heritage Act 1995, for "4 penalty units" substitute "10 penalty units". See: Act No. 22/1991. Reprint No. 4 as at 1 March 2005 and amending Act Nos 108/2004, 95/2005, 69/2006, 74/2006 and 80/2006. LawToday: www. legislation. vic.gov.au s. 6 See: Act No. 93/1995. Reprint No. 4 as at 1 January 2006 and amending Act Nos 32/2006, 80/2006 and 48/2008. LawToday: www. legislation. vic.gov.au -- 39 of 42 -- Part 3—Amendments to Other Acts Planning Legislation Amendment Act 2009 No. 66 of 2009 37 8 Amendment to the Local Government Act 1989 After section 78B(3)(c) of the Local Government Act 1989 insert— "(ca) the person is only a member of a development assessment committee established under Part 4AA of the Planning and Environment Act 1987;". 9 Amendments to the Melbourne Convention and Exhibition Trust Act 1996 (1) In sections 5(a) and 5(b) of the Melbourne Convention and Exhibition Trust Act 1996, for "the City of Melbourne and the City of Port Phillip" substitute "Victoria, including the use of those facilities and services for entertainment purposes". (2) In section 5(d) of the Melbourne Convention and Exhibition Trust Act 1996, for "Council of the Museum of Victoria" substitute "Museums Board of Victoria". __________________ See: Act No. 11/1989. Reprint No. 9 as at 1 April 2007 and amending Act Nos 26/2007, 2/2008, 12/2008, 35/2008 and 67/20008. LawToday: www. legislation. vic.gov.au s. 8 See: Act No. 71/1996 and amending Act Nos 46/1998, 108/2004 and 80/2006. LawToday: www. legislation. vic.gov.au -- 40 of 42 -- Part 4—Repeal of Amending Act Planning Legislation Amendment Act 2009 No. 66 of 2009 38 PART 4—REPEAL OF AMENDING ACT 10 Repeal of amending Act This Act is repealed on the first anniversary of its commencement. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 10 -- 41 of 42 -- Planning Legislation Amendment Act 2009 No. 66 of 2009 39 ENDNOTES † Minister's second reading speech— Legislative Assembly: 15 September 2009 Legislative Council: 17 September 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Planning and Environment Act 1987, the Docklands Act 1991, the Heritage Act 1995, the Local Government Act 1989 and the Melbourne Convention and Exhibition Trust Act 1996 and for other purposes." Endnotes -- 42 of 42 --