Planning and Environment (General Amendment) Act 2004
Victorian Legislation and Parliamentary Documents
i
Planning and Environment (General Amendment)
Act 2004
Act No. 81/2004
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2—AMENDMENTS TO THE PLANNING AND
ENVIRONMENT ACT 1987 3
3. New sections 8 to 11 substituted 3
8. Minister is planning authority 3
9. Authorised persons and bodies are planning authorities 3
10. Restrictions and powers relating to the preparation of
amendments 4
11. Minister may authorise planning authority to approve
amendment 5
4. Municipal strategic statements 6
5. New section 12B inserted 6
12B. Review of planning schemes 6
6. Duties of responsible authority 7
7. Notice of amendment 7
8. Planning authority to submit adopted amendment to Minister 7
9. New heading to section 35 8
10. New sections 35A and 35B inserted 8
35A. Approving planning authority to first seek certification
of Secretary 8
35B. Approval of amendment by planning authority 8
11. Notice to Parliament 9
12. Defects in procedure 9
13. Lodging of approved amendment 10
14. Who must keep up to date copy of planning scheme? 10
15. Repeal of Division 2 of Part 3AA 11
16. New section 46F substituted 11
46F. Planning schemes to comply with approved regional
strategy plan 11
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17. New section 46X substituted 11
46X. Planning schemes to comply with approved strategy
plan 11
18. New section 50 substituted and section 50A inserted 12
50. Amendment to application at request of applicant
before notice 12
50A. Amendment of application by responsible authority
before notice 13
19. More information regarding permit application 15
20. New sections 54A and 54B inserted 15
54A. Applicant may apply for extension of time to provide
more information 15
54B. When does an application lapse? 16
21. New sections 57A to 57C inserted 17
57A. Amendments to application after notice of application
is given 17
57B. Notice of amended application 19
57C. Amended application may go to referral authorities 20
22. Time for decision 20
23. What matters must a responsible authority consider? 21
24. Amendment to plans, drawings and other documents 23
25. Correction and amendment of permits 23
26. New Division 1A inserted in Part 4 23
Division 1A—Amendment of Permits by Responsible
Authority 23
72. Application for amendment of permit 23
73. What is the procedure for the application? 24
74. Issue of amended permit if no objectors 24
75. Decision to amend permit if there are objectors 25
76. Refusal of amendment 25
76A. Notice to referral authority 25
76B. When does an amendment to a permit begin? 25
76C. Review of decision on amendment 26
76D. Powers of Minister in relation to application 26
27. Appeals against requirements 27
28. Appeal relating to extension of time to provide information 28
29. New section 84B substituted 28
84B. Matters for Tribunal to take into account 28
30. Determination of application for review 30
31. Amendment of heading to Division 3 of Part 4 31
32. Grounds for cancellation or amendment of permit 31
33. Matters which tribunal must take into account 31
34. Determination by Tribunal 32
35. Land owned or permit required by responsible authorities 32
36. Application for permit when amendment requested 32
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37. Application of provisions to permit granted under Division 5
of Part 4 32
38. Powers of Minister in respect of application 33
39. General provisions 33
40. Powers of compulsory acquisition 33
41. Planning certificates 33
42. Regulation-making powers 34
43. New section 215 inserted 34
215. Transitional—Planning and Environment (General
Amendment) Act 2004 34
44. New section 216 inserted 35
216. Transitional—Amendment of permits 35
PART 3—AMENDMENTS TO OTHER ACTS 36
45. Catchment and Land Protection Act 1994 36
46. Environment Effects Act 1978 36
47. Environment Protection Act 1970 36
48. Flora and Fauna Guarantee Act 1988 37
49. Local Government Act 1989 37
50. Mitcham-Frankston Project Act 2004 37
51. Subdivision Act 1988 37
52. Water Act 1989 38
═══════════════
ENDNOTES 39
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Planning and Environment (General
Amendment) Act 2004†
[Assented to 16 November 2004]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Planning and Environment Act 1987 to improve
the planning system in Victoria.
Victoria
No. 81 of 2004
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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 January 2006, it comes into
operation on that day.
__________________
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PART 2—AMENDMENTS TO THE PLANNING AND
ENVIRONMENT ACT 1987
3. New sections 8 to 11 substituted
For sections 8, 9 and 11 of the Planning and
Environment Act 1987 substitute—
"8. Minister is planning authority
(1) The Minister may prepare—
(a) a planning scheme for any municipal
district or other area of Victoria; or
(b) amendments to any provision of a
planning scheme.
(2) The Minister is a planning authority under
this Act.
(3) This Act applies to a planning scheme
prepared by the Minister as if it were an
amendment to a planning scheme.
9. Authorised persons and bodies are
planning authorities
(1) The Minister may authorise any other
Minister or public authority to prepare an
amendment to any part of the State standard
provisions and local provisions of a planning
scheme.
(2) The Minister, on the application of a
municipal council, may authorise that
municipal council to prepare an amendment
to any part of the State standard provisions
and local provisions of—
(a) a planning scheme in force in its
municipal district; or
(b) a planning scheme applying to an area
adjoining its municipal district.
See:
Act No.
45/1987.
Reprint No. 7
as at
13 December
2000
and
amending
Act Nos
43/2003,
77/2003,
12/2004,
39/2004 and
48/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
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(3) An application under sub-section (2) must be
in writing in a form approved by the Minister
and contain the information required by the
Minister.
(4) An authorisation must be in writing.
(5) The Minister may authorise the preparation
of an amendment subject to any conditions
the Minister wishes to impose, including
conditions relating to the giving of notice of
the amendment.
(6) A person or body who is authorised under
this section to prepare an amendment to a
planning scheme is a planning authority
under this Act.
10. Restrictions and powers relating to the
preparation of amendments
(1) The power given to a planning authority to
prepare an amendment to the State standard
provisions of a planning scheme extends
only to the inclusion of a provision in or
deletion of a provision from the State
standard provisions of the planning scheme.
(2) A planning authority that is given power to
amend more than one planning scheme may
prepare amendments to two or more of those
schemes in the one instrument.
(3) Only the Minister may include in an
amendment a provision setting out the
classes of land, use or development
exempted from section 96(1) or 96(2).
(4) The Minister cannot authorise a municipal
council to prepare an amendment to a
planning scheme applying to the Port of
Melbourne Area unless the amendment does
not affect or apply to land in that Area.
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11. Minister may authorise planning
authority to approve amendment
(1) If the Minister authorises the preparation of
an amendment to a planning scheme, the
Minister must state in the authorisation
whether—
(a) the planning authority is also authorised
to approve the amendment under
section 35B; or
(b) the amendment must be submitted to
the Minister under section 31 for
approval.
(2) The Minister, at any time before notice of the
approval of the amendment is published in
the Government Gazette under section 36,
may, in writing, withdraw an authorisation
under sub-section (1)(a).
(3) If the Minister withdraws an authorisation
under sub-section (1)(a)—
(a) any approval of the amendment by the
planning authority is, and is deemed
always to have been, of no effect; and
(b) the amendment must be submitted to
the Minister under section 31 for
approval.
(4) The Minister cannot authorise a planning
authority to approve an amendment under
section 35B if—
(a) it is an amendment to a metropolitan
fringe planning scheme within the
meaning of Part 3AA—
(i) that amends or inserts an urban
growth boundary within the
meaning of that Part; or
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(ii) that has the effect of altering or
removing any controls over the
subdivision of any green wedge
land within the meaning of that
Part to allow the land to be
subdivided into more lots or into
smaller lots than allowed for in the
planning scheme; or
(b) the amendment is to be considered
concurrently with an application for a
permit under Division 5 of Part 4.".
4. Municipal strategic statements
Sections 12A(5) and 12A(6) of the Planning and
Environment Act 1987 are repealed.
5. New section 12B inserted
After section 12A of the Planning and
Environment Act 1987 insert—
"12B. Review of planning schemes
(1) A planning authority which is a municipal
council must review its planning scheme at
least once in every 3 years after the
commencement of section 5 of the Planning
and Environment (General Amendment)
Act 2004.
(2) A planning authority which is a municipal
council must also review its planning scheme
at any other time that the Minister directs.
(3) The objective of a review under this section
is to enhance the effectiveness and efficiency
of the planning scheme in achieving—
(a) the objectives of planning in Victoria;
and
(b) the objectives of the planning
framework established by this Act.
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(4) The review must evaluate the planning
scheme to ensure that it—
(a) is consistent in form and content with
the directions or guidelines issued by
the Minister under section 7; and
(b) sets out effectively the policy
objectives for use and development of
land in the area to which the planning
scheme applies; and
(c) makes effective use of State provisions
and local provisions to give effect to
State and local planning policy
objectives.
(5) On completion of a review under this
section, the planning authority must without
delay report the findings of the review to the
Minister.".
6. Duties of responsible authority
In section 14(a) of the Planning and
Environment Act 1987 before "administer"
insert "efficiently".
7. Notice of amendment
In section 19(5) of the Planning and
Environment Act 1987 after "adoption" insert
"or approval".
8. Planning authority to submit adopted amendment
to Minister
After section 31(2) of the Planning and
Environment Act 1987 insert—
"(3) This section and sections 32 to 35 do not
apply to an amendment if a planning
authority is authorised under section 11 to
approve that amendment.".
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9. New heading to section 35
Insert the following heading to section 35 of the
Planning and Environment Act 1987—
"Approval of amendment by Minister".
10. New sections 35A and 35B inserted
After section 35 of the Planning and
Environment Act 1987 insert—
"35A. Approving planning authority to first seek
certification of Secretary
(1) This section applies if a planning authority is
authorised under section 11 to approve an
amendment and has adopted the amendment
under section 29.
(2) The planning authority must not approve the
amendment under section 35B unless the
amendment has been certified by the
Secretary to the Department as being in an
appropriate form.
(3) Before certifying an amendment under this
section, the Secretary to the Department may
require any changes to the amendment that
are necessary to ensure that it is an
appropriate form.
35B. Approval of amendment by planning
authority
(1) If a planning authority is authorised under
section 11 to approve an amendment, the
planning authority may approve the
amendment in the form certified under
section 35A.
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(2) A planning authority must give to the
Minister—
(a) a notice of the approval of a planning
scheme under this section; and
(b) a copy of the approved amendment and
any documents prescribed for the
purposes of section 40; and
(c) any other prescribed documents and
information in relation to the planning
scheme.
(3) The notice of approval must contain the
prescribed information.".
11. Notice to Parliament
After section 38(1) of the Planning and
Environment Act 1987 insert—
"(1AA) If the amendment was approved by the
planning authority under section 35B, the
notice under sub-section (1)—
(a) must state that the amendment was
approved under the Minister's authority;
and
(b) must state the date that the authority
was given.".
12. Defects in procedure
In section 39(4)(b)(i) of the Planning and
Environment Act 1987 after "adopt" insert "or
approve".
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13. Lodging of approved amendment
(1) For section 40(1) of the Planning and
Environment Act 1987 substitute—
"(1) If the Minister approves an amendment to a
planning scheme under section 35, the
Minister, or if the Minister directs, the
planning authority, must lodge the prescribed
documents and a copy of the approved
amendment with the relevant authorities.
(1A) If the planning authority approves an
amendment to a planning scheme under
section 35B, the planning authority must
lodge the prescribed documents and a copy
of the approved amendment with the relevant
authorities.".
(2) After section 40(2) of the Planning and
Environment Act 1987 insert—
"(3) In this section the relevant authorities are—
(a) the responsible authority; and
(b) the municipal council if the planning
scheme applies to its municipal district
and it is not the responsible authority;
and
(c) any other person or persons whom the
Minister specifies generally for the
planning scheme or for the particular
amendment.".
14. Who must keep up to date copy of planning scheme?
In section 42 of the Planning and Environment
Act 1987 for "any person with whom an
amendment to a planning scheme must be lodged
under section 40(1)(aa) or (b)" substitute "the
municipal council, if it is not the responsible
authority,".
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15. Repeal of Division 2 of Part 3AA
Division 2 of Part 3AA of the Planning and
Environment Act 1987 is repealed.
16. New section 46F substituted
For section 46F of the Planning and
Environment Act 1987 substitute—
"46F. Planning schemes to comply with
approved regional strategy plan
Despite anything to the contrary in this Act,
an amendment to a planning scheme must
not be approved under section 35 or 35B in
relation to the region if the amendment is
inconsistent with the approved regional
strategy plan.".
17. New section 46X substituted
For section 46X of the Planning and
Environment Act 1987 substitute—
"46X. Planning schemes to comply with
approved strategy plan
Despite anything to the contrary in this Act,
an amendment to a planning scheme must
not be approved under section 35 or 35B in
relation to the Melbourne Airport Environs
Area if the amendment is inconsistent with
the approved strategy plan.".
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18. New section 50 substituted and section 50A inserted
For section 50 of the Planning and Environment
Act 1987 substitute—
"50. Amendment to application at request of
applicant before notice
(1) An applicant may ask the responsible
authority to amend an application before
notice of the application is first given under
section 52.
(2) An amendment to an application may
include—
(a) an amendment to the use or
development mentioned in the
application; and
(b) an amendment to the description of
land to which the application applies;
and
(c) an amendment to any plans and other
documents forming part of or
accompanying the application.
(3) A request under this section must—
(a) be accompanied by the prescribed fee
(if any); and
(b) be accompanied by any information or
document referred to in section 47(1)(c)
to 47(1)(e) that relates to the proposed
amendment to the application and that
was not provided with the original
application; and
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(c) if the applicant is not the owner of the
land to which the application applies,
be signed by the owner or include a
declaration by the applicant, that the
applicant has notified the owner about
the request.
(4) Subject to sub-section (5), the responsible
authority must amend the application in
accordance with the request.
(5) The responsible authority may refuse to
amend the application if it considers that the
amendment is so substantial that a new
application for a permit should be made.
(6) The responsible authority must make a note
in the register if any amendment is made to
an application under this section.
(7) On the amendment of an application under
this section, the amended application is to be
taken—
(a) to be the application for the purposes of
this Act; and
(b) to have been received on the day that
the request for amendment was
received by the responsible authority.
50A. Amendment of application by responsible
authority before notice
(1) With the agreement of the applicant and after
giving notice to the owner, the responsible
authority may make any amendments to an
application that it thinks necessary before
notice of the application is first given under
section 52.
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(2) An amendment to an application may
include—
(a) an amendment to the use or
development mentioned in the
application; and
(b) an amendment to the description of
land to which the application applies;
and
(c) an amendment to any plans and other
documents forming part of or
accompanying the application.
(3) The responsible authority may require the
applicant—
(a) to notify the owner under sub-section
(1); and
(b) to make a declaration that that notice
has been given.
(4) The responsible authority must make a note
in the register if any amendment is made to
an application under this section.
(5) On the amendment of an application under
this section, the amended application is to be
taken—
(a) to be the application for the purposes of
this Act; and
(b) to have been received on the day that
the applicant agreed to the
amendment.".
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19. More information regarding permit application
After section 54(1) of the Planning and
Environment Act 1987 insert—
"(1A) A requirement under sub-section (1) must be
made by giving notice in writing setting out
the information to be provided.
(1B) If a requirement is made under sub-
section (1) within the prescribed time, the
notice must also state that the application
will lapse on the lapse date specified in the
notice if the required information is not
given before that date.
Note : Section 54A allows an extension of time to be
sought.
(1C) The lapse date must be a day not less than
30 days after the date of the notice.".
20. New sections 54A and 54B inserted
After section 54 of the Planning and
Environment Act 1987 insert—
"54A. Applicant may apply for extension of time
to provide more information
(1) An applicant may apply to the responsible
authority for an extension of time to give the
information required under section 54 if the
requirement was made within the prescribed
time under that section.
(2) An application for an extension of time must
be made before the lapse date specified in
the requirement notice.
(3) The responsible authority may decide to
extend the time to give the required
information or refuse to extend that time.
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(4) The responsible authority must give the
applicant written notice of its decision under
sub-section (3).
(5) If the responsible authority decides to extend
the time, the notice must set out a new lapse
date for the application.
(6) If the responsible authority decides to refuse
to extend the time and, at the date of the
decision, the lapse date has passed or will
occur within the next 14 days, the notice
must set out a new lapse date that is 14 days
from the date of the decision.
54B. When does an application lapse?
(1) An application for a permit lapses if the
information required under section 54(1)
within the prescribed time under that section
(or that requirement as changed by the
Tribunal under section 78(b)) is not given by
the final lapse date for the application.
(2) The final lapse date for an application is the
last of the following to occur—
(a) the lapse date specified in the notice
under section 54(1A);
(b) the new lapse date set out in a notice
under section 54A, if applicable;
(c) if the applicant has made an application
to the Tribunal under section 78(b) in
respect of the requirement for more
information and the Tribunal has
confirmed or changed the requirement,
the new lapse date determined by the
Tribunal under section 85(3);
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(d) if the applicant has made an application
to the Tribunal under section 81(2) in
respect of the refusal or failure of the
responsible authority to extend the time
to give the information and the Tribunal
extends the time, the day after the end
of the extended time;
(e) if the applicant has made an application
to the Tribunal under section 81(2) in
respect of the refusal or failure of the
responsible authority to extend the time
to give the information and the Tribunal
refuses to extend the time, the day that
is 14 days after the day on which the
Tribunal makes its determination.".
21. New sections 57A to 57C inserted
After section 57 of the Planning and
Environment Act 1987 insert—
"57A. Amendments to application after notice of
application is given
(1) An applicant may ask the responsible
authority to amend an application after
notice of the application is given under
section 52.
(2) An amendment to an application may
include—
(a) an amendment to the use or
development mentioned in the
application; and
(b) an amendment to the description of
land to which the application applies;
and
(c) an amendment to any plans and other
documents forming part of or
accompanying the application.
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(3) A request under this section must—
(a) be accompanied by the prescribed fee
(if any); and
(b) be accompanied by any information or
document referred to in section 47(1)(c)
to 47(1)(e) that relates to the proposed
amendment to the application and that
was not provided with the original
application; and
(c) if the applicant is not the owner of the
land to which the application applies,
be signed by the owner or include a
declaration by the applicant that the
applicant has notified the owner about
the request.
(4) Subject to sub-section (5), the responsible
authority must amend the application in
accordance with the request.
(5) The responsible authority may refuse to
amend the application if it considers that the
amendment is so substantial that a new
application for a permit should be made.
(6) The responsible authority must make a note
in the register if any amendment is made to
an application under this section.
(7) On the amendment of an application under
this section—
(a) the amended application is to be
taken—
(i) to be the application for the
purposes of this Act; and
(ii) to have been received on the day
that the request for amendment
was received by the responsible
authority; and
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(b) all objections made in relation to the
original application are to be taken to
be objections to the amended
application.
(8) Nothing in this section affects any right a
person may have to make a request under
section 87 or 89 in respect of anything done
or not done in relation to the original
application.
(9) Sections 52 and 55 do not apply to an
amended application.
57B. Notice of amended application
(1) If an application is amended under
section 57A, the responsible authority must
determine—
(a) whether and to whom notice should be
given in respect of the amended
application; and
(b) if notice is to be given, the nature and
extent of that notice.
(2) In determining whether or not notice should
be given of an amended application, the
responsible authority must consider whether,
as a result of the amendments made to the
application, the grant of the permit would
cause material detriment to any person.
(3) Section 53 applies to a notice under
this section as if it were a notice under
section 52(1).
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57C. Amended application may go to referral
authorities
(1) The responsible authority must give a copy
of an amended application to every person or
body that the planning scheme specifies as a
referral authority for applications of that kind
without delay unless the responsible
authority considers that the amendment to
the application would not adversely affect
the interests of the referral authority.
(2) A referral authority must tell the responsible
authority in writing within the prescribed
time after getting the amended application if
it needs any more information in respect of
the amendment.".
22. Time for decision
(1) For section 59(1) of the Planning and
Environment Act 1987 substitute—
"(1) The responsible authority may decide on an
application without delay if—
(a) the responsible authority is not required
to give notice under section 52(1) or
52(1AA); or
(b) the responsible authority does not
require notice to be given under
section 57B; or
(c) the application is not required to be
referred to a referral authority under
section 55 or 57C.".
(2) In sections 59(2)(b) and 59(3)(b) of the Planning
and Environment Act 1987 for "and 52(1AA)"
substitute ", 52(1AA) and 57B".
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23. What matters must a responsible authority
consider?
(1) For section 60(1) of the Planning and
Environment Act 1987 substitute—
"(1) Before deciding on an application, the
responsible authority must consider—
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria;
and
(c) all objections and other submissions
which it has received and which have
not been withdrawn; and
(d) any decision and comments of a referral
authority which it has received; and
(e) any significant effects which the
responsible authority considers the use
or development may have on the
environment or which the responsible
authority considers the environment
may have on the use or development.
(1A) Before deciding on an application, the
responsible authority, if the circumstances
appear to so require, may consider—
(a) any significant social and economic
effects of the use or development for
which the application is made; and
(b) the approved regional strategy plan
under Part 3A; and
(c) any amendment to the approved
regional strategy plan under Part 3A
adopted under this Act but not, as at the
date on which the application is
considered, approved by the Minister;
and
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(d) the approved regional strategy plan
under Part 3C; and
(e) any amendment to the approved
regional strategy plan under Part 3C
adopted under this Act but not, as at the
date on which the application is
considered, approved by the Minister;
and
(f) any relevant State environment
protection policy declared in any Order
made by the Governor in Council under
section 16 of the Environment
Protection Act 1970; and
(g) any other strategic plan, policy
statement, code or guideline which has
been adopted by a Minister,
government department, public
authority or municipal council; and
(h) any amendment to the planning scheme
which has been adopted by a planning
authority but not, as at the date on
which the application is considered,
approved by the Minister or a planning
authority; and
(i) any agreement made pursuant to
section 173 affecting the land the
subject of the application; and
(j) any other relevant matter.".
(2) In section 60(3) of the Planning and
Environment Act 1987—
(a) for "sub-section (1)(a)(i)" substitute
"sub-section (1)(c)"; and
(b) after "section 52(1)" insert "or 57B".
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24. Amendment to plans, drawings and other
documents
Section 62(3) of the Planning and Environment
Act 1987 is repealed.
25. Correction and amendment of permits
(1) In section 71(1) of the Planning and
Environment Act 1987 after "the responsible
authority" insert "(including a permit issued at the
direction of the Tribunal)".
(2) Sections 72 to 76 of the Planning and
Environment Act 1987 are repealed.
26. New Division 1A inserted in Part 4
After Division 1 of Part 4 of the Planning and
Environment Act 1987 insert—
"Division 1A—Amendment of Permits by
Responsible Authority
72. Application for amendment of permit
(1) A person who is entitled to use or develop
land in accordance with a permit may apply
to the responsible authority for an
amendment to the permit.
(2) This section does not apply to—
(a) a permit issued at the direction of the
Tribunal; or
(b) a permit issued under Division 6.
(3) In this section a reference to a permit
includes any plans, drawings or other
documents approved under a permit.
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73. What is the procedure for the application?
(1) Subject to this section, sections 47 to 62
(with any necessary changes) apply to an
application to the responsible authority to
amend a permit as if—
(a) the application were an application for
a permit; and
(b) any reference to a permit were a
reference to the amendment to the
permit.
(2) If the responsible authority decides to grant
an amendment to a permit subject to
conditions, the conditions must relate to the
amendment to the permit; and
(3) Any conditions to which an amendment to a
permit is subject form part of the permit
when it is issued.
Note: An application may be made under section 69 to
extend the time within which a use or development or
any stage of it is to be started or a development or
any stage of it is to be completed.
74. Issue of amended permit if no objectors
Once it has decided in favour of an
application to amend a permit, the
responsible authority must issue an amended
permit to the applicant if no one has objected
or if notice of the decision to grant the
amendment to the permit is not required to
be given to objectors under section 64.
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75. Decision to amend permit if there are
objectors
Section 64 (with any necessary changes)
applies to a decision to grant an amendment
to a permit as if—
(a) a reference to a decision to grant a
permit were a reference to the decision
to grant the amendment; and
(b) a reference to the issue of a permit were
a reference to the issue of an amended
permit.
76. Refusal of amendment
(1) The responsible authority must give the
applicant and each objector a notice in the
prescribed form of its decision to refuse to
grant an amendment to a permit.
(2) The notice must set out the specific grounds
on which the application is refused and state
whether the grounds were those of the
responsible authority or a referral authority.
76A. Notice to referral authority
The responsible authority must give each
relevant referral authority a copy of the
amended permit, if it decides to grant an
amendment to the permit, and a copy of any
notice given under section 64 or 76.
76B. When does an amendment to a permit
begin?
An amendment to a permit under this
Division operates—
(a) from the date specified in the amended
permit; or
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(b) if no date is specified, from—
(i) the date of the decision of the
Tribunal if the amended permit
was issued at the direction of the
Tribunal; or
(ii) the day on which the amended
permit is issued, in any other case.
76C. Review of decision on amendment
Division 2 (with any necessary changes)
applies to an application for an amendment
of a permit and an amendment of a permit as
if—
(a) a reference to an application for a
permit were a reference to an
application for the amendment; and
(b) a reference to the grant of a permit were
a reference to the grant of the
amendment; and
(c) a reference to the issue of a permit were
a reference to the issue of an amended
permit.
76D. Powers of Minister in relation to
application
(1) Sections 97A, 97B, 97C, 97D(1), 97E,
97F(1), 97G(1) to (5) (with any necessary
changes) apply to an application for an
amendment to a permit under this Division
as if—
(a) a reference to an application for a
permit were a reference to an
application for the amendment; and
(b) a reference to the grant of a permit were
a reference to the grant of the
amendment.
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(2) Subject to sub-sections (3) and (6), this
Division applies to an application referred to
the Minister under this section as if—
(a) the Minister were the responsible
authority; and
(b) all steps taken under this Division by
the first responsible authority had been
taken by the Minister.
(3) Sections 59, 61, 64, 65, 66 and 74 do not
apply to an application referred to the
Minister under this section.
(4) Once the Minister has decided in favour of
an application, the Minister must direct the
first responsible authority to issue an
amended permit to the applicant.
(5) The first responsible authority must comply
with a direction under sub-section (4).
(6) Section 76C and Division 3 of this Part do
not apply in relation to—
(a) an application referred to the Minister
under this section; or
(b) an amendment of a permit granted
under this section.
(7) Division 5 of Part 6 does not apply in respect
of a matter that an amendment to a permit
under this Division specifies is to be done
by, approved by or done to the satisfaction of
the Minister.".
27. Appeals against requirements
In section 78(a) of the Planning and
Environment Act 1987 after "section 52(1)(d)"
insert "or 57B".
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28. Appeal relating to extension of time to provide
information
At the end of section 81 of the Planning and
Environment Act 1987 insert—
"(2) An applicant for a permit may apply to the
Tribunal for a review of a decision of a
responsible authority under section 54A to
refuse to extend the time within which
information must be given by the applicant
under section 54.".
29. New section 84B substituted
For section 84B of the Planning and
Environment Act 1987 substitute—
"84B. Matters for Tribunal to take into account
(1) In determining an application for review
under this Act, the Tribunal must—
(a) take account of any matter which the
person or body in respect of whose
decision the application for review is
made—
(i) properly took account of in
making its decision; or
(ii) was required to take account of in
making its decision; and
(b) have regard to any matter which the
person or body in respect of whose
decision the application for review is
made—
(i) properly had regard to in making
its decision; or
(ii) is required to have regard to in
making its decision.
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(2) In determining an application for review
under this Act, in addition to the matters
referred to in sub-section (1), the Tribunal—
(a) must take into account any relevant
planning scheme;
(b) must have regard to the objectives of
planning in Victoria;
(c) must (where appropriate) take account
of the approved regional strategy plan
under Part 3A;
(d) must (where appropriate) take account
of the approved strategy plan under
Part 3C;
(e) must take account of and give effect to
any relevant State environment
protection policy declared in any Order
made by the Governor in Council under
section 16 of the Environment
Protection Act 1970;
(f) must (where appropriate) take account
of the extent to which persons residing
or owning land in the vicinity of the
land which is the subject of the
application for review were able to and
in fact did participate in the procedures
required to be followed under this Act
before the responsible authority could
make a decision in respect of the
application for a permit;
(g) must (where appropriate) have regard
to any amendment to a planning
scheme which has been adopted by the
planning authority but not, as at the
date on which the application for
review is determined, approved by the
Minister or the planning authority;
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(h) must (where appropriate) have regard
to any agreement made pursuant to
section 173 affecting the land the
subject of the application for review;
(i) must (where appropriate) have regard
to any amendment to the approved
regional strategy plan under Part 3A
adopted under this Act but not, as at the
date on which the application for
review is determined, approved by the
Minister;
(j) must (where appropriate) have regard
to any amendment to the approved
strategy plan under Part 3C adopted
under this Act but not, as at the date on
which the application for review is
determined, approved by the Minister;
(k) must take account of any other matter
which the Tribunal is required by the
provisions of this Act or any other Act
to take account of in determining the
application for review.".
30. Determination of application for review
(1) In section 85(1)(c) of the Planning and
Environment Act 1987 after "section 52(1)(d)"
insert "or 57B".
(2) After section 85(1)(d) of the Planning and
Environment Act 1987 insert—
"(da) direct that the time within which information
is to be given under section 54 must be
extended for a specified period or must not
be extended, in the case of an application for
review of the refusal or failure of the
responsible authority to extend the time
under section 54A; or".
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(3) For section 85(3) of the Planning and
Environment Act 1987 substitute—
"(3) If the Tribunal gives a direction under sub-
section (1)(d)(ii) or (1)(d)(iii) in respect of a
requirement for more information which was
made within the prescribed time under
section 54, the Tribunal must determine a
new lapse date for the application which
must permit a period for compliance that is
not less than the period allowed for in the
notice of the requirement.".
31. Amendment of heading to Division 3 of Part 4
In the heading to Division 3 of Part 4 of the
Planning and Environment Act 1987 after
"Permits" insert "by Tribunal".
32. Grounds for cancellation or amendment of permit
(1) In section 87(1)(e) of the Planning and
Environment Act 1987 for "section 52"
substitute "this Act".
(2) After section 87(3)(d) of the Planning and
Environment Act 1987 insert—
"; or
(e) any person who is entitled to use or develop
the land concerned.".
(3) For section 87(4) of the Planning and
Environment Act 1987 substitute—
"(4) Nothing in this Division affects the power of
a responsible authority to amend a permit
under Division 1A.".
33. Matters which tribunal must take into account
In section 90A(1) and (2) of the Planning and
Environment Act 1987 for "section 84B(1)"
substitute "section 84B(2)".
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34. Determination by Tribunal
After section 91(2) of the Planning and
Environment Act 1987 insert—
"(2A) If the Tribunal directs the responsible
authority to amend a permit, the responsible
authority must issue an amended permit to
the owner of land to which the permit
relates.".
35. Land owned or permit required by responsible
authorities
In section 96(4) of the Planning and
Environment Act 1987 after "Divisions 1,"
insert "1A,".
36. Application for permit when amendment requested
In section 96A(6) of the Planning and
Environment Act 1987—
(a) for "49 and 50" substitute "49, 50 and 50A";
and
(b) for "section 50(1) and (2)" substitute
"sections 50 and 50A".
37. Application of provisions to permit granted under
Division 5 of Part 4
In section 96M of the Planning and
Environment Act 1987—
(a) in sub-section (1), for "Sections 68 to 76"
substitute "Sections 68 to 76D";
(b) in sub-section (2), for "Sections 81"
substitute "Sections 81(1)".
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38. Powers of Minister in respect of application
(1) In section 97E(5)(b) of the Planning and
Environment Act 1987 after "section 52(1)"
insert "or 57B".
(2) Section 97H(b) of the Planning and
Environment Act 1987 is repealed.
(3) Section 97H(e) of the Planning and
Environment Act 1987 is repealed.
(4) After section 97I(1) of the Planning and
Environment Act 1987 insert—
"(1A) In this section a reference to a permit
includes any plans, drawings or other
documents approved under a permit.".
(5) Section 97I(3) of the Planning and Environment
Act 1987 is repealed.
(6) In section 97K(1)(b) of the Planning and
Environment Act 1987 omit " or section 73".
39. General provisions
In section 147(1)(c) of the Planning and
Environment Act 1987 before "serve" insert
"give or".
40. Powers of compulsory acquisition
In section 172(1)(a) of the Planning and
Environment Act 1987 after "adopted" insert
"or approved".
41. Planning certificates
Section 199(2)(a) of the Planning and
Environment Act 1987 is repealed.
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42. Regulation-making powers
(1) In section 202(a) of the Planning and
Environment Act 1987 after "permit" insert
"or an amendment of a permit".
(2) After section 202(b) of the Planning and
Environment Act 1987 insert—
"(ba) providing for matters to be covered in a
review of a planning scheme; and".
(3) For section 202(g) of the Planning and
Environment Act 1987 substitute—
"(g) prescribing the information to be included in
or to accompany any application, notice,
permit, certificate, or request; and".
43. New section 215 inserted
After section 214 of the Planning and
Environment Act 1987 insert—
"215. Transitional—Planning and Environment
(General Amendment) Act 2004
The amendment of this Act by sections 3 and
7 to 17 of the Planning and Environment
(General Amendment) Act 2004 does not
affect—
(a) an amendment to a planning scheme if
notice of that amendment was given
under section 19 of this Act before the
commencement of those sections of
that 2004 Act; or
(b) an amendment to a metropolitan fringe
planning scheme within the meaning of
Part 3AA of this Act if notice of that
amendment was given under section 19
before 12 June 2003.".
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44. New section 216 inserted
At the end of Part 11 of the Planning and
Environment Act 1987 insert—
"216. Transitional—Amendment of permits
Despite the repeal of section 62(3) by the
Planning and Environment (General
Amendment) Act 2004, that provision
continues to apply to any permit granted
before or within 3 months after the
commencement of section 24 of that Act.".
__________________
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PART 3—AMENDMENTS TO OTHER ACTS
45. Catchment and Land Protection Act 1994
In section 48B(b) of the Catchment and Land
Protection Act 1994 after "Minister" insert
"or the planning authority".
46. Environment Effects Act 1978
In section 8(6)(b) of the Environment Effects
Act 1978 after "permit" insert "or an amendment
to a permit".
47. Environment Protection Act 1970
(1) In section 19B(5A) of the Environment
Protection Act 1970 after "Minister" insert
"or the planning authority".
(2) In section 37A(b) of the Environment Protection
Act 1970 after "Minister" insert "or the planning
authority".
See:
Act No.
52/1994.
Reprint No. 3
as at
5 August
2004.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 45
See:
Act No.
9135.
Reprint No. 2
as at
3 December
1998
and
amending
Act No.
23/1999.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
Act No.
8056
Reprint No. 14
as at
1 July 2002
and
amending
Act Nos
37/2002,
59/2003 and
10/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
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48. Flora and Fauna Guarantee Act 1988
In section 41B(b) of the Flora and Fauna
Guarantee Act 1988 after "Minister" insert
"or the planning authority".
49. Local Government Act 1989
In section 185AB(b) of the Local Government
Act 1989 after "Minister" insert "or the planning
authority".
50. Mitcham-Frankston Project Act 2004
In section 123 of the Mitcham-Frankston
Project Act 2004 for "section 11" substitute
"section 9".
51. Subdivision Act 1988
In section 41B(b) of the Subdivision Act 1988
after "Minister" insert "or the planning authority".
See:
Act No.
47/1988
Reprint No. 3
as at
29 June 2000.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 48
See:
Act No.
11/1989
Reprint No. 7
as at
31 July 2004
and
amending
Act Nos
92/1990,
109/2003 and
47/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
Act No.
39/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
Act No.
53/1998.
Reprint No. 5
as at
1 January
1999
and
amending
Act Nos
28/2000,
74/2000 and
44/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
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52. Water Act 1989
In section 305B(b) of the Water Act 1989 after
"Minister" insert "or the planning authority".
═══════════════
See:
Act No.
80/1989.
Reprint No. 7
as at
1 December
2003
and
amending
Act Nos
46/2003 and
48/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 52
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 16 September 2004
Legislative Council: 4 November 2004
The long title for the Bill for this Act was "to amend the Planning and
Environment Act 1987 to improve the planning system in Victoria and
for other purposes."
Endnotes
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