Victorian Urban Development Authority (Amendment) Act 2006

i Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENTS TO VICTORIAN URBAN DEVELOPMENT AUTHORITY ACT 2003 3 3. Authority subject to direction and control of Minister 3 4. Project order and application of Act 3 5. Compulsory acquisition of land 3 6. Repeal of sections 50 and 51 3 7. Insertion of new Division 5A into Part 3 4 Division 5A—Charges 4 Subdivision 1—Introductory 4 50. Definitions 4 51. What is "development"? 8 51A. Which subdivisions and building work are exempt development? 8 51B. Indexation of threshold amount 10 51C. What is "development value"? 12 51D. How is development value assessed? 13 51E. Nominated valuer to make assessments 14 Subdivision 2—General Charges 15 51F. General charges 15 51G. How is a general charge determined? 16 51H. What must a resolution levying a general charge state? 17 51I. Notice of general charge 18 51J. Variation or revocation of resolution levying general charge 18 51K. General development charge not to apply to existing development 19 51L. General charges on non-rateable land 19 -- 1 of 48 -- Section Page ii Subdivision 3—Infrastructure Recovery Charges 19 51M. Infrastructure recovery charge 19 51N. Infrastructure recovery charge to be based on development value 20 51O. Cap on infrastructure recovery charge 20 51P. What must a resolution levying an infrastructure recovery charge state? 21 51Q. Notice of infrastructure recovery charge 21 51R. Variation or revocation of resolution levying infrastructure recovery charge 22 51S. Infrastructure recovery charge not to apply to existing development 23 51T. Infrastructure recovery charge not payable if earlier charge paid 23 51U. Infrastructure recovery charge not payable in respect of public land 24 Subdivision 4—Recovery of Charges 24 51V. Statement of general charge (other than general development charge) 24 51W. Statement of general development charge 24 51X. Statement of infrastructure recovery charge 26 51Y. Authority may enter agreements for payment of charges under this Division 28 51Z. Waiver of charges 28 51ZA. Authority must give notice of charge to council or building surveyor 28 51ZB. Removal of liability for other charges 29 51ZC. Authority may charge interest on unpaid charges 29 51ZD. Unpaid charges may be recovered as a debt 30 51ZE. Charges to be paid into Project Fund 30 51ZF. Refund of certain charges by Authority 30 Subdivision 5—Objections 31 51ZG. Making an objection to a general charge 31 51ZH. Making an objection to an infrastructure recovery charge 31 51ZI. Grounds for objection 31 51ZJ. What must an objection contain? 32 51ZK. Determination of objection not involving assessment of development value 32 51ZL. Determination of objection involving disputed assessment of development value 33 51ZM. Dispute resolution procedure 33 51ZN. Determination of Authority after dispute resolution conference 34 -- 2 of 48 -- Section Page iii Subdivision 6—Reviews and Appeals 35 51ZO. Application to VCAT for review 35 51ZP. Appeal to Supreme Court 36 51ZQ. Grounds of review or appeal 37 51ZR. Powers on review or appeal 37 51ZS. Costs 38 PART 3—AMENDMENTS TO OTHER ACTS 40 Division 1—Amendments to the Subdivision Act 1988 40 8. Statement of compliance with statutory requirements 40 Division 2—Amendments to the Building Act 1993 41 9. New section 18A inserted 41 18A. Notice to VicUrban of application 41 10. Refusal of building permit 43 11. New section 32A inserted 43 32A. Council to notify VicUrban of issue of building permit 43 ═══════════════ ENDNOTES 45 -- 3 of 48 -- 1 Victorian Urban Development Authority (Amendment) Act 2006 † [Assented to 13 June 2006] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Victorian Urban Development Authority Act 2003— (i) in relation to the levying of charges on development in a project area; and Victoria No. 35 of 2006 -- 4 of 48 -- Part 1—Preliminary Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 2 (ii) to improve the operation of that Act; and (b) to make related amendments to the Subdivision Act 1988 and the Building Act 1993. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 September 2006, it comes into operation on that day. __________________ s. 2 -- 5 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 3 PART 2—AMENDMENTS TO VICTORIAN URBAN DEVELOPMENT AUTHORITY ACT 2003 3. Authority subject to direction and control of Minister After section 9(2) of the Victorian Urban Development Authority Act 2003 insert— "(3) An agreement or arrangement or contract entered into under this Act in contravention of sub-section (2) is not void only because of that contravention.". 4. Project order and application of Act In sections 34(2)(a) and 35(1) of the Victorian Urban Development Authority Act 2003, after "5" insert ", 5A". 5. Compulsory acquisition of land For section 42(3) of the Victorian Urban Development Authority Act 2003 substitute— "(3) In determining the amount of compensation to be paid for the compulsory acquisition of land by the Authority, no allowance is to be made for any decrease or increase in the value of the land attributable to the declared project.". 6. Repeal of sections 50 and 51 Sections 50 and 51 of the Victorian Urban Development Authority Act 2003 are repealed. See: Act No. 59/2003 and amending Act Nos 108/2004 and 95/2005. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 6 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 4 7. Insertion of new Division 5A into Part 3 After Division 5 of Part 3 of the Victorian Urban Development Authority Act 2003 insert— 'Division 5A—Charges Subdivision 1—Introductory 50. Definitions (1) In this Division— "Building Commission" means the Building Commission established under Part 12 of the Building Act 1993; "building permit" has the same meaning as in the Building Act 1993; "building work" has the same meaning as in the Building Act 1993; "combined development" means— (a) a subdivision of land (other than a subdivision that is exempt development under section 51A); and (b) building work on that land for which a building permit is required (other than building work that is exempt development under section 51A)— where the subdivision and the construction of the buildings to which the building work relates are authorised by the same planning permit; s. 7 -- 7 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 5 "compliance request" means a request to a municipal council for the issue of a statement of compliance under section 21 of the Subdivision Act 1988; "construction" has the same meaning as in the Building Act 1993; "cost of building work" means the cost of building work on which the building permit levy is calculated under section 201 of the Building Act 1993; "date of development" means— (a) in the case of a stand-alone subdivision, the date that the compliance request is made to a municipal council in relation to the plan of subdivision; and (b) in the case of stand-alone building work, the date of the application for the building permit to carry out the building work; and (c) in the case of a combined development, the date that is the same as both of, or the earlier of, the following dates— (i) the date that the compliance request is made to a municipal council in relation to the plan of subdivision for the development; (ii) the date of the application for a building permit to carry out the building work for the development; s. 7 -- 8 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 6 "development" has the meaning set out in section 51; "development value" has the meaning set out in section 51C; "dwelling" has the same meaning as in section 46H of the Planning and Environment Act 1987; "general charge" means a charge levied under section 51F; "general development charge" means a general charge that is payable when a property is developed; "infrastructure recovery charge" means a charge levied under section 51M; "nominated valuer" means a valuer nominated by the valuer-general under section 51E; "planning permit" means a permit within the meaning of the Planning and Environment Act 1987; "public investment" means investment by— (a) the State; or (b) a public statutory body other than a municipal council; or (c) a municipal council under an arrangement with a public statutory body; s. 7 -- 9 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 7 "public land" means— (a) Crown land; or (b) land owned by or vested in a public statutory body; or (c) land held on trust for a public or municipal purpose by trustees appointed under an Act; "qualified valuer" means a person who holds the qualifications or experience specified from time to time under section 13DA(1A) of the Valuation of Land Act 1960; "site value" has the same meaning as in the Valuation of Land Act 1960; "stand-alone building work" means building work for which a building permit is required that— (a) is not part of a combined development; and (b) is not exempt development under section 51A; "stand-alone subdivision" means a subdivision of land that— (a) is not part of a combined development; and (b) is not exempt development under section 51A; "valuer-general" has the same meaning as in the Valuation of Land Act 1960. s. 7 -- 10 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 8 (2) In this Division a reference to a subdivision of land is, in the case of a staged subdivision (within the meaning of the Subdivision Act 1988), to be read as a reference to a stage of the subdivision. 51. What is "development"? For the purposes of this Division "development" means— (a) a stand-alone subdivision; or (b) stand-alone building work; or (c) a combined development. 51A. Which subdivisions and building work are exempt development? (1) The following classes of subdivision of land are exempt development under this Division— (a) except as provided in sub-section (3), a subdivision of land into not more than 2 lots; or (b) a subdivision of land that involves an alteration to the boundaries of the lots on an existing plan of subdivision but does not increase the number of lots above the number of lots on that existing plan of subdivision; or (c) a subdivision of an existing building into lots or lots and common property; or (d) a subdivision of land where an existing building is situated on each lot to be created by the subdivision. s. 7 -- 11 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 9 (2) The following classes of building work are exempt development under this Division— (a) the construction of up to 2 dwellings on a lot; (b) the construction of the following buildings when they are ancillary to a dwelling— (i) a garage, carport or shed or similar non-habitable building; (ii) a fence, mast, antenna, retaining or free-standing wall, swimming pool, spa or similar structure; (c) the carrying out of protection work within the meaning of the Building Act 1993; (d) except as provided in sub-section (4), any other building work if the total cost of the building work does not exceed the threshold amount. (3) A subdivision of land is not exempted under sub-section (1)(a) if the land or any part of the land was the subject of a subdivision in the period of 3 years immediately preceding the date of development for the subdivision. (4) Building work is not exempted under sub- section (2)(d) if the cost of the building work together with the total cost of all other building work carried out on the same land in the period of 3 years immediately preceding the date of development for the building work exceeds the threshold amount. (5) A period of 3 years referred to in sub- section (3) or (4) does not include any period preceding the coming into effect of a resolution under Subdivision 2 or 3 in s. 7 -- 12 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 10 respect of the project area in which the land referred to in that sub-section is situated. (6) In this section— "existing building" means a building where the date of practical completion of the building occurred before the coming into effect of a resolution under Subdivision 2 or 3 in respect of the project area in which the land on which the building is constructed is situated but does not include— (a) a garage, carport or shed or a similar building; or (b) a fence, mast, antenna, retaining or free-standing wall, swimming pool, spa or similar structure; "threshold amount" means the amount of $250 000 as varied under section 51B. 51B. Indexation of threshold amount (1) The amount that is to apply for the purposes of section 51A is to be varied, in respect of the financial year beginning on 1 July 2007 and each subsequent financial year, in accordance with the formula— C B A × where— "A" is the amount referred to in the definition of "threshold amount" in section 51A(6). "B" is the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect s. 7 -- 13 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 11 of the December quarter of that financial year. "C" is the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June. (2) If it is necessary for the purposes of this section to calculate an amount that consists of or includes a fraction of a whole number, the amount is deemed to have been calculated in accordance with this section if the calculation is made— (a) if the amount is less than $1000, to the nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. (3) If an amount is varied in accordance with this section, section 51A and this section have effect as if a reference to the amount were a reference to the amount as so varied. (4) If the variation of an amount to which this section applies by operation of this section has the effect of reducing the amount— (a) the variation is deemed not to have taken effect, except for the purposes of the application of this sub-section; and (b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or s. 7 -- 14 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 12 that part of such a reduction that has not been set off against a previous increase. (5) The Minister must cause a notice to be published in the Government Gazette specifying the amount as varied for the purposes of section 51A in respect of the relevant financial year. 51C. What is "development value"? (1) In this Division "development value", in respect of a development that is a stand- alone subdivision or a combined development, means the amount that is the sum of the following amounts— (a) the amount that is the estimated site value of the land that is to be subdivided; and (b) subject to section 51D(3), the amount that is the estimated cost of building work calculated in accordance with section 51D(2). (2) In this Division "development value" in respect of a development that is stand-alone building work means the total of the following amounts— (a) the site value of the land to be used for the development; and (b) the amount that is the cost of building work for the development. (3) Despite sub-section (1), if an infrastructure recovery charge has previously been paid under this Division in respect of stand-alone building work on land, "development value" for the purposes of this Division for a subsequent development of that land that is a stand-alone subdivision is to be the amount s. 7 -- 15 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 13 that is the difference between the following amounts— (a) the site value of the land that is to be subdivided; and (b) the amount that is the estimated site value of the land that is to be subdivided. (4) Despite sub-section (2), if a general development charge or an infrastructure recovery charge has previously been paid under this Division in respect of land, "development value" for the purposes of this Division for a subsequent development of that land that is stand-alone building work is to be the amount that is the cost of the building work for the development. 51D. How is development value assessed? (1) For the purposes of section 51C(1)(a) or 51C(3)(b), the estimate of the site value of land to be subdivided is to be based on current market values as at the date of development as if the subdivision of the land had already occurred at that date. (2) For the purposes of section 51C(1)(b), the estimate of the cost of building work on the land is to be based on the estimated cost, as at the date of development, of— (a) in the case of a stand-alone subdivision, the average buildings that could reasonably be expected to be constructed on that land to give effect to the purpose of the subdivision; and (b) in the case of a combined development, the construction of the buildings authorised by the planning permit for the development. s. 7 -- 16 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 14 (3) If, in the case of a combined development, the cost of building work for the development has been notified to the Authority under section 18A of the Building Act 1993 before the assessment of development value is made for the purposes of section 51X, development value for the purposes of section 51C(1)(b) is to be based on the cost of building work instead of the estimated cost of building work. (4) Subject to sub-section (5), the site value of land for the purposes of section 51C(2)(a) or 51C(3)(a) is the most recent site value of the land determined under the Valuation of Land Act 1960 for the purposes of the Local Government Act 1989 as at the date of development. (5) If land to be used for the development forms part of one or more parcels of land to which section 13DC(6) or 13DC(7) of the Valuation of Land Act 1960 applies and not all the land in those parcels is to be used for the development, then for the purposes of section 51C(2)(a) or 51C(3)(a), the site value of the land to be used for the development is to be the estimated site value of the land as at the date of development, based on the most recent site value of all the land in the parcels determined under the Valuation of Land Act 1960 for the purposes of the Local Government Act 1989. 51E. Nominated valuer to make assessments (1) The Authority may ask the valuer-general to nominate a qualified valuer to make an assessment of development value for the purposes of this Division. s. 7 -- 17 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 15 (2) The valuer-general must comply with a request under sub-section (1). (3) The valuer-general may determine reasonable fees for the making of an assessment by a nominated valuer under this Division. (4) The Authority must pay the fees for an assessment made by a nominated valuer under this Division. (5) Section 3A of the Valuation of Land Act 1960 applies to a nominated valuer making an assessment under this Division as if— (a) the valuer were appointed under that Act; and (b) the making of an assessment of development value under this Division were the making of a valuation under that Act. Subdivision 2—General Charges 51F. General charges (1) With the prior approval of the Governor in Council, the Authority may, by resolution, levy charges on the owners, occupiers or licensees of properties in the project area— (a) for the supply of telecommunications or other services provided by or by agreement with the Authority; or (b) for the promotion of the project area by the Authority; or s. 7 -- 18 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 16 (c) for the maintenance or management by or by agreement with the Authority of areas or facilities for common use by groups of properties or uses in the project area; or (d) for the provision by or by agreement with the Authority of the infrastructure necessary for development of the project area or any part of it. (2) An approval under sub-section (1) may only be given on the recommendation of the Minister made with the approval of the Treasurer. 51G. How is a general charge determined? (1) General charges— (a) may be different for different classes of properties; (b) may vary according to— (i) the value or size of land; (ii) the distance of a property from the service or facility or a group of services or facilities; (iii) the nature or extent of use of the service or facility; (c) may include minimum charges or a scale of charges; (d) need not relate directly to the cost of services or facilities provided; (e) may be concessional charges. s. 7 -- 19 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 17 (2) A general charge on a property that is levied on the owner of the property may be expressed to apply only when the property is developed. Note: A general charge that applies only when a property is developed is called a general development charge in this Division. 51H. What must a resolution levying a general charge state? (1) A resolution levying a general charge (other than a general development charge) must state the following— (a) what the charge is for; (b) how long the charge has effect for; (c) how the charge is calculated; (d) when the charge is due and payable; (e) on what properties the charge is levied; (f) who must pay the charge. (2) A resolution levying a general development charge must state the following— (a) what the charge is for; (b) how long the charge has effect for; (c) how the charge is calculated; (d) on what properties the charge is levied; (e) that the charge is due and payable by the owner of a property before a statement of compliance is issued under section 21 of the Subdivision Act 1988 in respect of the development of the property or a building permit is issued in respect of the development of the property (as the case requires). s. 7 -- 20 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 18 51I. Notice of general charge (1) The Authority must cause a resolution levying a general charge to be published— (a) in the Government Gazette; and (b) in a newspaper circulating generally in the project area subject to the charge; and (c) in a newspaper circulating generally throughout Victoria. (2) A resolution levying a general charge has no effect until it is published in the Government Gazette. (3) In addition to the notice required under sub- section (1), the Authority must give notice of a resolution levying a general development charge to— (a) the Building Commission; and (b) each municipal council in the municipal district of which the project area is situated. (4) A notice under sub-section (3) must specify— (a) the project area to which the resolution relates; and (b) the period during which the resolution will have effect. 51J. Variation or revocation of resolution levying general charge (1) The Authority may by resolution vary or revoke any resolution made under this Subdivision. s. 7 -- 21 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 19 (2) The procedure for varying or revoking a resolution under this Subdivision is the same as the procedure for making the resolution. 51K. General development charge not to apply to existing development A general development charge is not payable in respect of a development if a planning permit or building permit was issued for the development before the publication of the resolution levying the charge. 51L. General charges on non-rateable land For land that is not rateable under section 154 of the Local Government Act 1989 a charge may only be levied under section 51F(1)(a)— (a) in respect of the use of works or services; and (b) on the user of those works or services. Subdivision 3—Infrastructure Recovery Charges 51M. Infrastructure recovery charge (1) With the prior approval of the Governor in Council, the Authority may, by resolution, levy charges on owners of properties in the project area. (2) An approval under sub-section (1) may only be given on the recommendation of the Minister made with the approval of the Treasurer. (3) Before making a recommendation under sub- section (2), the Minister must be satisfied that the total amount estimated to be received from the charges levied under the resolution s. 7 -- 22 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 20 on owners of properties in the project area will not exceed the estimated amount (determined by the Minister) of public investment incurred or to be incurred in the project area for the declared project on or after the date of the declaration of the project under section 34. 51N. Infrastructure recovery charge to be based on development value (1) An infrastructure recovery charge is to be based on a percentage of the development value of a development of a property. (2) The resolution levying the charge must fix the percentage of development value to be used to calculate the charge. (3) The resolution may— (a) fix different percentages of development value in respect of different classes of development; (b) vary the percentage of development value according to the distance of a property from a service or facility or a group of services or facilities; (c) include a scale of percentages of development value that increases from year to year. 51O. Cap on infrastructure recovery charge A percentage of development value specified in a resolution levying an infrastructure recovery charge must not exceed 10%. s. 7 -- 23 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 21 51P. What must a resolution levying an infrastructure recovery charge state? (1) A resolution levying an infrastructure recovery charge must state the following— (a) the period during which the charge will apply in relation to properties in the project area; (b) the percentage or percentages or scale of percentages of development value to be used to calculate the charge; (c) the estimated amount of public investment incurred or to be incurred in developing the project area as determined by the Minister under section 51M(3). (2) The resolution must state that the charge is due and payable before a statement of compliance is issued under section 21 of the Subdivision Act 1988 in respect of the development or a building permit is issued in respect of the development (as the case requires). 51Q. Notice of infrastructure recovery charge (1) The Authority must cause a resolution levying an infrastructure recovery charge to be published— (a) in the Government Gazette; and (b) in a newspaper circulating generally in the project area subject to the charge; and (c) in a newspaper circulating generally throughout Victoria. s. 7 -- 24 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 22 (2) A resolution levying an infrastructure recovery charge has no effect until it is published in the Government Gazette. (3) The Authority must give notice of a resolution levying an infrastructure recovery charge to— (a) the Building Commission; and (b) each municipal council in the municipal district of which the project area is situated. (4) A notice under sub-section (3) must specify— (a) the project area to which the resolution relates; and (b) the period during which the resolution will have effect. 51R. Variation or revocation of resolution levying infrastructure recovery charge (1) The Authority may by resolution vary or revoke any resolution made under this Subdivision. (2) The procedure for varying or revoking a resolution under sub-section (1) is the same as the procedure for making the resolution. (3) The Minister, with the approval of the Treasurer, may, by order published in the Government Gazette, revoke a resolution made under this Subdivision at any time. (4) Without limiting sub-section (3), an order under that sub-section may revoke a resolution made under this Subdivision if the Minister is satisfied that the estimated amount (determined by the Minister under section 51M(3)) of public investment s. 7 -- 25 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 23 incurred or to be incurred in the project area subject to the resolution has been recovered under the resolution. (5) An order revoking a resolution under sub- section (3) comes into effect on the day that it is published in the Government Gazette or any later date specified in the order. 51S. Infrastructure recovery charge not to apply to existing development An infrastructure recovery charge is not payable in respect of a development if a planning permit or building permit was issued for the development before the publication of the resolution levying the charge. 51T. Infrastructure recovery charge not payable if earlier charge paid (1) An infrastructure recovery charge is not payable in respect of a development that is stand-alone building work if the development— (a) is of a lot created by a subdivision of land in respect of which an infrastructure recovery charge has been paid; and (b) is to give effect to the purpose of the subdivision as set out in the planning permit for the subdivision. (2) An infrastructure recovery charge is not payable in respect of a development that is a stand-alone subdivision of land if an infrastructure recovery charge has been paid for stand-alone building work on that land more than 5 years before the date of development for the subdivision and no other s. 7 -- 26 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 24 subdivision of that land has been registered in that period. 51U. Infrastructure recovery charge not payable in respect of public land A property is not subject to an infrastructure recovery charge if the property is public land and the development is carried out by or on behalf of the Crown, a public statutory body or the trustees of the trust for the land. Subdivision 4—Recovery of Charges 51V. Statement of general charge (other than general development charge) (1) The Authority must send a statement of charge to any person that the Authority has determined is liable to pay a general charge (other than a general development charge). (2) A statement of charge under this section must— (a) be in writing; and (b) set out the charge that is payable and the method used to calculate that charge; and (c) set out the due date for payment of the charge; and (d) include any other information required by the resolution levying the charge. 51W. Statement of general development charge (1) The Authority must send a statement of charge to any person that the Authority has determined is liable to pay a general development charge— s. 7 -- 27 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 25 (a) in the case of a stand-alone subdivision, within 28 days after the Authority receives the notice under section 21(2A) of the Subdivision Act 1988 of the receipt of the compliance request for the plan of subdivision; and (b) in the case of stand-alone building work, within 28 days after the Authority receives— (i) the notice under section 18A of the Building Act 1993 of an application for a building permit for the development; or (ii) the notice under section 32A of the Building Act 1993 of the issue of a building permit for the development— whichever is the earlier; and (c) in the case of a combined development, within 28 days after the Authority receives— (i) the notice under section 21(2A) of the Subdivision Act 1988 of the receipt of the compliance request for the plan of subdivision; or (ii) the notice under section 18A of the Building Act 1993 of an application for a building permit for the development; or (iii) the notice under section 32A of the Building Act 1993 of the issue of a building permit for the development— whichever is the earliest. s. 7 -- 28 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 26 (2) A statement of charge under this section must— (a) be in writing; and (b) set out the charge that is payable and the method used to calculate that charge; and (c) set out the procedure for payment of the charge; and (d) include any other information required by the resolution levying the charge. 51X. Statement of infrastructure recovery charge (1) The Authority must send a statement of charge to any person that the Authority has determined is liable to pay an infrastructure recovery charge— (a) in the case of a stand-alone subdivision, within 28 days after the Authority receives the notice under section 21(2A) of the Subdivision Act 1988 of the receipt of the compliance request for the plan of subdivision; and (b) in the case of stand-alone building work, within 28 days after the Authority receives— (i) the notice under section 18A of the Building Act 1993 of an application for a building permit for the development; or (ii) the notice under section 32A of the Building Act 1993 of the issue of a building permit for the development— whichever is the earlier; and s. 7 -- 29 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 27 (c) in the case of a combined development, within 28 days after the Authority receives— (i) the notice under section 21(2A) of the Subdivision Act 1988 of the receipt of the compliance request for the plan of subdivision; or (ii) the notice under section 18A of the Building Act 1993 of an application for a building permit for the development; or (iii) the notice under section 32A of the Building Act 1993 of the issue of a building permit for the development— whichever is the earliest. (2) A statement of charge under this section must— (a) be in writing; and (b) set out the charge that is payable; and (c) set out the procedure for payment of the charge; and (d) include any other information required by the resolution levying the charge. (3) A statement of charge under this section relating to a stand-alone subdivision or a combined development must be accompanied by— (a) a copy of the assessment of development value made by the nominated valuer for the purpose of calculating the charge; and s. 7 -- 30 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 28 (b) a copy of any other document or information used in calculating the charge. 51Y. Authority may enter agreements for payment of charges under this Division (1) The Authority may enter into an agreement with a person liable to pay a general charge or an infrastructure recovery charge for the payment of that charge. (2) An agreement under this section must provide that the charge is to be paid to the Authority within a specified period of time and may provide for payment by instalments. 51Z. Waiver of charges The Authority, with the approval of the Minister and the Treasurer, may waive a general charge or an infrastructure recovery charge on a property in whole or in part. 51ZA. Authority must give notice of charge to council or building surveyor (1) The Authority must give a notice under this section to— (a) a municipal council from which it has received a notice under section 21(2A) of the Subdivision Act 1988 in respect of a subdivision of land; or (b) a building surveyor from whom it has received a notice under section 18A of the Building Act 1993 in respect of an application for a building permit to carry out building work. s. 7 -- 31 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 29 (2) The notice must be in writing and must state— (a) whether a general development charge or an infrastructure recovery charge is payable in respect of the subdivision of land or the building work (as the case may be); and (b) if applicable, whether the charge has been paid or the person liable to pay the charge has entered into an agreement with the Authority under section 51Y for payment of the charge. 51ZB. Removal of liability for other charges A person liable under this Division to pay a charge in respect of a property and who would otherwise be liable under another Act to pay a charge in respect of the same property for the same matter is not liable to pay that other charge, despite anything to the contrary in any Act or law. 51ZC. Authority may charge interest on unpaid charges (1) Interest is payable at the rate fixed each year by the Authority on any unpaid charge that is due and payable under this Division. (2) The annual rate of interest fixed by the Authority for the purposes of sub-section (1) must not be greater than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983. (3) The Authority must publish the annual interest rate in the Government Gazette. s. 7 -- 32 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 30 51ZD. Unpaid charges may be recovered as a debt (1) The Authority may recover any unpaid charge that is due and payable under this Division and any unpaid interest on that charge as a debt in any court of competent jurisdiction. (2) Any unpaid charge that is due and payable under this Division, any unpaid interest on that charge and any costs awarded to the Authority in any court proceedings in relation to that charge or interest are a first charge on the land. 51ZE. Charges to be paid into Project Fund The Authority must pay all money received by it under this Division into the Project Fund. 51ZF. Refund of certain charges by Authority (1) The Authority must refund out of the Project Fund any amount paid to it in respect of a general development charge or infrastructure recovery charge relating to a development that is stand-alone building work if it is satisfied that the building permit for the development has lapsed without the development proceeding. (2) The Authority may refund out of the Project Fund any amount paid to it in respect of a general development charge or infrastructure recovery charge relating to any other development if it is satisfied that the development in respect of which that charge was levied is not to proceed. s. 7 -- 33 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 31 Subdivision 5—Objections 51ZG. Making an objection to a general charge A person who is aggrieved by the levying of a general charge may, within 28 days after receiving a statement of charge under section 51V or 51W, object in writing to the Authority on any one or both of the grounds set out in section 51ZI(1). 51ZH. Making an objection to an infrastructure recovery charge A person who is aggrieved by the levying of an infrastructure recovery charge may, within 28 days after receiving a statement of charge under section 51X, object in writing to the Authority on any one or more of the grounds set out in section 51ZI. 51ZI. Grounds for objection (1) The grounds for an objection are— (a) that the objector is not liable for the charge; (b) that there is a technical error in the calculation of the charge. (2) The following additional grounds of objection apply to an infrastructure recovery charge— (a) that an assessment of development value by the nominated valuer used in the calculation of the charge is too high or too low; (b) that an assessment of development value by the nominated valuer used in the calculation of the charge is based on an incorrect description of any land valued in that assessment; s. 7 -- 34 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 32 (c) that an assessment of development value by the nominated valuer used in the calculation of the charge is based on an incorrect apportioning of the value of a parcel of land in respect of which the charge is levied that had previously been valued together with other parcels of land under section 13DC(6) or 13DC(7) of the Valuation of Land Act 1960. 51ZJ. What must an objection contain? (1) An objection must— (a) state the ground or grounds on which the objection is based; and (b) give particulars of— (i) any alleged error in the calculation of the charge; or (ii) the bases of any assessment of development value made by the nominated valuer to which the objection is made. (2) An objection on a ground set out in section 51ZI(2) must be accompanied by an assessment of the development value of the development made by a qualified valuer at the objector's expense. 51ZK. Determination of objection not involving assessment of development value If the Authority receives an objection based on a ground set out in section 51ZI(1), the Authority must determine the objection and notify the objector in writing of the Authority's determination within 28 days after receiving the objection. s. 7 -- 35 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 33 51ZL. Determination of objection involving disputed assessment of development value (1) If the Authority receives an objection based on a ground set out in section 51ZI(2), the Authority must determine to accept or reject the assessment of development value provided by the objector within 21 days after receiving the objection. (2) If the Authority determines to accept the objector's assessment, the Authority must within 7 days after making that determination— (a) make any necessary adjustment to the charge; and (b) notify the objector of its determination and of any adjustment made to the charge. (3) If the Authority determines not to accept the objector's assessment, it must within 7 days after making that determination— (a) refer the objection to the valuer-general for dispute resolution; and (b) notify the objector in writing of its determination and that the objection has been so referred. 51ZM. Dispute resolution procedure (1) The valuer-general must convene a dispute resolution conference within 2 months after the objection is referred to the valuer-general under section 51ZL. (2) The parties to the dispute resolution conference are the nominated valuer who made the assessment and the valuer who prepared the objector's assessment. s. 7 -- 36 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 34 (3) The valuer-general or a person nominated by the valuer-general is to facilitate the dispute resolution conference. (4) At a dispute resolution conference the parties may agree on the correct assessment of development value to be used as the basis for determining the charge. (5) The valuer-general must notify the Authority of the outcome of the dispute resolution conference. 51ZN. Determination of Authority after dispute resolution conference (1) If the valuer-general notifies the Authority that the parties to the dispute resolution conference have agreed on the correct assessment of development value, the Authority, within 7 days after receiving that notice, must— (a) accept the assessment; and (b) make any necessary adjustment to the charge; and (c) notify the objector in writing of the Authority's determination to accept the assessment and of any adjustment made to the charge. (2) If the valuer-general notifies the Authority that the parties to the dispute resolution conference have not agreed on the correct assessment of development value, the Authority, within 7 days after receiving that notice, must— (a) disallow the objection on the ground of the assessment of development value; and s. 7 -- 37 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 35 (b) notify the objector in writing of the Authority's determination to disallow the objection on that ground. Subdivision 6—Reviews and Appeals 51ZO. Application to VCAT for review (1) An objector who is dissatisfied with a determination of the Authority under section 51ZK, or 51ZN on an objection may apply to VCAT for review of that determination. (2) An application under sub-section (1) must be made within 28 days after the objector is notified of the determination under Subdivision 5. (3) An objector may apply to VCAT for a review of the amount of a general charge or an infrastructure recovery charge set out in a statement sent to the objector under section 51V, 51W or 51X if— (a) the Authority fails to notify the objector of its determination in relation to the objection within the time required by section 51ZK, 51ZL or 51ZN (as the case requires); or (b) the valuer-general fails to convene a dispute resolution conference within the time required by section 51ZM. (4) An application under sub-section (3) must be made within 28 days after the expiry of the relevant required time referred to in that sub- section. (5) An applicant under this section must serve a copy of the application on the Authority. s. 7 -- 38 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 36 (6) The Authority must, within 28 days after being served with a copy of the application, forward to the principal registrar of VCAT— (a) the notice of objection; and (b) copies of any written notifications given under Subdivision 5 in connection with the objection. (7) The principal registrar of VCAT must notify the valuer-general of an application under this section that relates to an objection on a ground referred to in section 51ZI(2). 51ZP. Appeal to Supreme Court (1) If the application relates to a ground of objection referred to in section 51ZI(2), the President of VCAT, on his or her own initiative or on the application of a party, may refer a matter that is the subject of an application under section 51ZO to the Supreme Court to be treated as an appeal to the Supreme Court if the President is satisfied that the matter raises questions of unusual difficulty or of general importance. (2) The principal registrar of VCAT must notify the valuer-general of a referral to the Supreme Court under sub-section (1). (3) In addition to sub-section (1), a matter that is or could be the subject of an application under section 51ZO may be treated as an appeal to the Supreme Court if, on the application of any party, the Court is satisfied that the matter raises questions of unusual difficulty or of general importance. (4) For the purposes of sub-section (3), a "party" includes a person who would be a party if the matter were the subject of an application under section 51ZO. s. 7 -- 39 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 37 (5) The prothonotary must notify the valuer- general of an application to the Supreme Court under sub-section (3). (6) Nothing in this section limits the application of section 77 of the Victorian Civil and Administrative Tribunal Act 1998. Note: Section 77 of the Victorian Civil and Administrative Tribunal Act 1998 permits VCAT to refer a matter to a more appropriate forum. 51ZQ. Grounds of review or appeal (1) On a review or appeal the objector's case is limited to— (a) the ground or grounds of the objection made under section 51ZG or 51ZH; and (b) any other ground set out in section 51ZI allowed by order of VCAT or the Supreme Court (as the case requires). (2) If a ground for the objection is that an assessment of development value is incorrect on a ground referred to in section 51ZI(2), the application for review or appeal (as the case requires) must state the amount that the objector contends is the correct amount of the assessment. 51ZR. Powers on review or appeal (1) On a review or appeal, VCAT or the Supreme Court (as the case requires) may— (a) by order, confirm the person liable to pay the general charge or infrastructure recovery charge; and (b) by order, confirm, increase, reduce or otherwise amend any assessment of development value that was used in s. 7 -- 40 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 38 calculating the infrastructure recovery charge; and (c) by order, confirm, increase, reduce or otherwise amend the general charge or infrastructure recovery charge; and (d) make any other order it thinks fit. (2) An appeal to the Court of Appeal from an order of the Supreme Court under this section lies only on a question of law. Note: Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 provides for appeals on a question of law from orders of VCAT. 51ZS. Costs (1) On a review or appeal, VCAT or the Supreme Court (as the case requires) may make an order as to the payment of costs, or no order as to the payment of costs, as it thinks appropriate. (2) In determining any questions concerning costs, VCAT or the Supreme Court may take into consideration the following factors, as appropriate— (a) the extent of any adjustment to the assessment made by VCAT or the Court; (b) any unreasonable conduct on the part of any party— (i) during the objection process; or (ii) during the review or appeal; (c) the failure of a party to give adequate information or supply supporting material when permitted or required to do so. s. 7 -- 41 of 48 -- Part 2—Amendments to Victorian Urban Development Authority Act 2003 Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 39 (3) The Supreme Court may make an order with respect to the assessment of costs in the same manner as it may in respect of any other matter before the Court. Note: Section 111 of the Victorian Civil and Administrative Tribunal Act 1998 provides for the assessment of costs in VCAT proceedings.'. __________________ s. 7 -- 42 of 48 -- Part 3—Amendments to other Acts Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 40 PART 3—AMENDMENTS TO OTHER ACTS Division 1—Amendments to the Subdivision Act 1988 8. Statement of compliance with statutory requirements (1) In section 21(1) of the Subdivision Act 1988, for "A Council must" substitute "Subject to sub- section (2C), a Council must". (2) After section 21(2) of the Subdivision Act 1988 insert— "(2A) A Council, within 7 days after receiving the request for the issue of the statement of compliance in relation to a plan of a subdivision that relates to land which is within a project area for which a resolution is in force under Division 5A of Part 3 of the Victorian Urban Development Authority Act 2003 levying a general development charge or infrastructure recovery charge, must— (a) notify the Victorian Urban Development Authority in writing— (i) of the receipt of that request and the date of that receipt; and (ii) as to whether the land in the plan of subdivision has been the subject of a subdivision of land in the period of 3 years immediately preceding the date of that receipt; and (b) provide the Victorian Urban Development Authority with a copy of the planning permit for that subdivision. See: Act No. 53/1988. Reprint No. 5 as at 1 January 1999 and amending Act Nos 28/2000, 74/2000, 44/2001, 47/2004 and 81/2004. LawToday: www.dms. dpc.vic. gov.au s. 8 -- 43 of 48 -- Part 3—Amendments to other Acts Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 41 (2B) Sub-section (2A) does not apply to a plan of subdivision that involves an alteration to the boundaries of the lots on an existing plan of subdivision but does not increase the number of lots above the number of lots on that existing plan of subdivision. (2C) A Council must not issue a statement of compliance under this section in relation to a plan of subdivision for which it has given notice under sub-section (2A) unless the Victorian Urban Development Authority has notified the Council under section 51ZA of the Victorian Urban Development Authority Act 2003 that— (a) a general development charge or an infrastructure recovery charge is not payable in respect of the subdivision; or (b) if a general development charge or an infrastructure recovery charge is payable in respect of the subdivision, the charge has been paid or the person liable to pay the charge has entered into an agreement with the Authority under section 51Y of that Act to pay the charge.". Division 2—Amendments to the Building Act 1993 9. New section 18A inserted After section 18 of the Building Act 1993 insert— "18A. Notice to VicUrban of application (1) This section applies if— (a) an application for a building permit relates to the carrying out of building work on land in a project area within s. 9 See: Act No. 126/1993. Reprint No. 6 as at 14 June 2005 and amending Act Nos 26/2001, 96/2004, 18/2005, 39/2005, 42/2005 and 52/2005. LawToday: www.dms. dpc.vic. gov.au -- 44 of 48 -- Part 3—Amendments to other Acts Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 42 the meaning of the Victorian Urban Development Authority Act 2003; and (b) a resolution is in force under Division 5A of Part 3 of that Act levying a general development charge or an infrastructure recovery charge in respect of that project area. (2) The relevant building surveyor must without delay— (a) notify the Victorian Urban Development Authority in writing of— (i) the application; and (ii) the cost of the building work calculated in accordance with section 201; and (iii) any refusal of the application under section 201(6)(b) or 201(6)(c); and (iv) any decision of the Building Appeals Board to modify the cost of the building work; and (b) provide the Victorian Urban Development Authority with a copy of any relevant planning permit that authorises both the construction of the buildings to which the building work relates and a subdivision of the land on which the building work is to be carried out.". s. 9 -- 45 of 48 -- Part 3—Amendments to other Acts Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 43 10. Refusal of building permit After section 24(2) of the Building Act 1993 insert— "(3) The relevant building surveyor must not issue a building permit for the carrying out of building work for which notice is required to be given to the Victorian Urban Development Authority under section 18A unless the Authority has notified the relevant building surveyor under section 51ZA of the Victorian Urban Development Authority Act 2003 that— (a) a general development charge or an infrastructure recovery charge is not payable in respect of the building work for which the permit is to be issued; or (b) if a general development charge or an infrastructure recovery charge is payable in respect of that building work, the charge has been paid or the person liable to pay the charge has entered into an agreement with the Authority under section 51Y of that Act to pay the charge.". 11. New section 32A inserted After section 32 of the Building Act 1993 insert— "32A. Council to notify VicUrban of issue of building permit (1) This section applies if— (a) a council has under section 30(1) been given a copy of a building permit issued for building work to be carried out on a property situated in a project area within the meaning of the s. 10 -- 46 of 48 -- Part 3—Amendments to other Acts Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 44 Victorian Urban Development Authority Act 2003; and (b) a resolution is in force under Division 5A of Part 3 of that Act levying a general development charge or infrastructure recovery charge in respect of that project area. (2) The council must within 14 days after being given the copy of the building permit— (a) notify the Victorian Urban Development Authority in writing in accordance with sub-section (3); and (b) provide the Victorian Urban Development Authority with a copy of any relevant planning permit that it holds that authorises both the construction of the buildings to which the building work relates and a subdivision of the land on which the building work is to be carried out. (3) The notice must set out the following information— (a) the name of the applicant for the permit; (b) the address of the property in respect of which the permit was issued; (c) the nature of the building work for which the permit was issued; (d) the cost of the building work calculated in accordance with section 201; (e) the information referred to in paragraphs (c) and (d) in respect of all other building permits issued for the same land in the previous 3 years.". ═══════════════ s. 11 -- 47 of 48 -- Victorian Urban Development Authority (Amendment) Act 2006 Act No. 35/2006 45 ENDNOTES † Minister's second reading speech— Legislative Assembly: 4 May 2006 Legislative Council: 1 June 2006 The long title for the Bill for this Act was "to amend the Victorian Urban Development Authority Act 2003 in relation to the levying of charges on development in a project area, to amend the Subdivision Act 1988 and the Building Act 1993 and for other purposes." Endnotes -- 48 of 48 --