This article was written by Mark Beaufoy, Bridget Phelan, Eleni Carrol and Evelyn Kourambas.
In this alert:
- Temporary changes to Victorian planning laws which will see many processes shifted online.
- The focus of a post-COVID taskforce the state government has established.
- Details of how VCAT is adapting to function remotely
On 15 April 2020 we published an update on the legislative changes across a number of States in response to the COVID-19 pandemic. The key change at that time for Victoria was the new clause 52.18 (State of emergency exemption) in the Victorian Planning Provisions, allowing deliveries of food and other essential goods at any time of the day to enable supermarkets, hospitals, pharmacies and other essential businesses to meet significant community demand arising from COVID-19. There has now been further legislative response.
As anticipated, on 24 April 2020 the COVID-19 Omnibus (Emergency Measures) Act 2020 (COVID-19 Act) commenced. The COVID-19 Act temporarily amends several Victorian Acts, and temporarily allows the making of regulations to modify the application of certain Victorian laws for the purpose of responding to the COVID-19 pandemic.
In particular, the COVID-19 Act has introduced temporary emergency provisions into the Planning and Environment Act 1987 (Vic) (PE Act) and the Local Government Act 2020 (Vic) (LG Act). The provisions will be in place for 6 months, after which time they will be repealed. These provisions allow the use of remote technology to ensure that entities and individuals can continue to comply with their obligations under the PE Act and LG Act.
New Part 10A of the Planning and Environment Act 1987
Availability of documents
The COVID-19 Act allows designated entities[1] to comply with the obligations to make certain documents available for inspection free of charge at their offices, by instead making the documents available on their respective internet sites.
As a result, planning scheme amendment documentation, submissions to planning scheme amendments, panel reports, planning permit applications and objections, and s.173 Agreements, among other things, will now be available online.
To protect the privacy of those who lodge submissions, objections and planning permit applications, the COVID-19 Act precludes a designated entity from disclosing specified individuals' personal information without first obtaining that person's consent.
The designated entity may however publish the address of the land the subject of the permit application or planning scheme amendment and/or make personal information about an individual available upon request to a person if the individual made an application for planning permit, requested an amendment, or lodged a submission or objection. This is because:
- information about the land is sometimes necessary to understand the documents that have been made available online; and
- it is sometimes necessary to provide names and addresses of these individuals to allow proceedings to be commenced and conducted under the PE Act.
Requirements relating to notices
Under s.205A of the COVID-19 Act, a designated entity can issue notices specifying that a document can be inspected on its internet site, without contravening its obligations under the PE Act. The Explanatory Memorandum to the COVID-19 Act makes it clear that the purpose of this section is to ensure the Government Gazette and other notices reflect the temporary emergency provisions.
Panel hearings
Under the PE Act, panel hearings must be conducted in public unless a person objects and the panel is satisfied the submission is confidential. To ensure panel hearings can remain accessible and open to the public, the temporary provisions have been introduced allowing hearings to be held remotely and to be made available either on the internet or by other electronic means.
Further, submitters who would otherwise be required to appear in person before a panel can now do so via electronic means.
New Part 12 of the Local Government Act 2020
New Part 12 of the LG Act will commence on 1 May 2020 and be repealed on 2 November 2020. Part 12 puts in place temporary emergency provisions that will apply between 1 May 2020 and 1 November 2020 ('prescribed period') that provide for:
- Councillors, members of a governing body of a regional library or any other person to participate in certain meetings electronically. This applies to Council meetings, joint meetings of Councils, meeting of a delegate committee or joint delegate committee, a meeting of a governing body of a regional library, and a meeting of a special committee;
- Council meetings and joint meetings of Council that are required to be open to the public, to instead be live-streamed on the Council's internet site or recorded and made available on Council's Internet site as soon as practicable;
- a Council or delegated committee which considers it necessary to close a meeting to the public because confidential information will be considered, to be exempt from the requirement to live-stream that meeting or make a recording of the meeting available on its internet site; and
- the ability of a Council, delegated committee or special committee to not allow the public to attend certain meetings during the prescribed period.
Industry support
In response to the COVID-19 pandemic and subsequent social distancing rules, the Planning Institute of Australia (PIA) has established seven principles to guide advocacy for its members and the wider profession over the next few months. Among these, is the principle to introduce and strengthen remote communication technologies that improve the planning system.
The temporary emergency provisions introduced by the COVID-19 Act clearly align with this principle, and PIA has indicated its support for the amendments to the PE Act and LG Act on the basis that they are 'consistent with our advocacy principle that the planning system must continue to function remotely and efficiently, and the acknowledgement by Government that planning has a crucial role in supporting and stimulating economic recovery…' PIA's complete COVID-19 Response Plan can be accessed here.
Building Victoria's Recovery Taskforce
On Thursday 24 April 2020 the Victorian Government announced the establishment of the Building Victoria's Recovery Taskforce (Taskforce) which will be overseen by the Planning Minister and the Treasurer and is designed keep Victoria's building and development industry running through the COVID-19 pandemic. The Taskforce will investigate planning and investment opportunities to boost Victoria's building and development industry. The co-chairs of the Taskforce are Roger Teale, Jude Munro AO and Stan Krpan. Roger Teale was a former President of the Property Council (Vic) and Senior Executive at Lendlease, Jude Munro AO is chair of the Victorian Planning Authority and Stan Krpan is a Victorian Public Service CEO (formerly CEO of Sustainability Victoria).
The Taskforce will initially oversee the fast-tracking of planning approvals where decisions have been delayed due to the COVID-19 pandemic. In summary, the Taskforce will also:
- provide real-time advice to Government on issues affecting the industry
- work with industry and unions to review existing major development projects
- advise the Government on expanding housing options
- advise on current revenue measures and financial incentives including developer contributions and land tax.
Environment Protection Amendment Act 2018
We recently published an update on the delayed commencement of the Environment Protection Amendment Act 2018 (new EP Act) due to the COVID-19 pandemic. Previously, the new EP Act was to commence on 1 December 2020 (or as proclaimed) and was Gazetted to commence 1 July 2020. As a result of the COVID-19 Act, the commencement date has been moved to 1 December 2021 or on a day to be proclaimed. The EPA Reform Unit has communicated that the new EP Act will commence on 1 July 2021, however this is yet to be Gazetted.
Funding for the Victorian Civil and Administrative Tribunal
On Tuesday 28 April 2020 the Victorian Government announced that $5.2 million will be provided to the Tribunal to ensure that it has the technology to hear matters remotely in response to the COVID-19 pandemic. The upgrades to the Tribunal's processes will be implemented over the following 12 weeks and will include project management software, software programmers, software licences and the digitisation and scanning of paper files.
Digitising the Tribunal's processes will enable the Planning and Environment List to attend to current and pending matters on hold due to the COVID-19 pandemic, bringing certainty to awaiting parties.
After 15 May 2020, proceedings will be heard using the most appropriate mechanism for the matter: on the papers, by telephone or videoconferencing. Matters requiring face-to-face attendance will be postponed until social distancing restrictions are relaxed, or other arrangements are made. We note that the Tribunal has started re-listing new proceedings for hearing at its premises from late 2020 or early 2021, although it may still issue directions for any changes that are required if the hearing is required to be held remotely.
Further announcements specific to the Planning and Environment List are expected this week.
As the COVID-19 lock down arrangements continue, these policy changes and legislative changes are designed to keep the planning and development industry moving and provide some relief from new regulatory burdens which were expected with the commencement of the new EP Act. If you have any queries, please contact Mark Beaufoy or Bridget Phelan.
[1] 'Designated entity' means the Minister, a planning authority, a responsible authority, a referral authority, a municipal authority, or any other person or entity.
