29 October 2018

Ministerial Direction No.19 – formalising the role of EPA Victoria in planning scheme amendments

This article was written by Mark Beaufoy and Jayson Broadway.

Ministerial Direction (Ministerial Direction No. 19) (MD19) was recently issued by the Minister for Planning on the preparation and content of planning scheme amendments that may result in impacts on the environment, amenity and human health.

MD19 requires planning authorities to seek advice from the EPA Victoria when preparing planning scheme reviews and amendments that may result in significant environment, amenity and human health impacts due to pollution and waste. MD19, released on 10 October 2018, is part of the suite of reforms to Victoria’s environment protection and planning regimes recommended by the Independent Inquiry into the EPA. Many of these recommended reforms were implemented by the Environment Protection Act 2017 (Vic) and the Environment Protection Amendment Act 2018 (Vic) (see our earlier updates on the changes implemented by the legislation and its enactment into law).

MD19 was prompted by concerns raised by the Independent Inquiry into the EPA that many of the environmental, health, and amenity impacts dealt with by the EPA result from poor land use planning decisions. Two recommendations of the EPA Inquiry Report included recommended measures to address these concerns:

  • Recommendation 10.1—that a statutory trigger be established to require responsible authorities to seek early advice from the EPA on strategic planning processes that involve significant human health and environmental risks or development in close proximity to a licensed facility.
  • Recommendation 10.2—that the Victorian Planning Authority refer strategic planning processes to the EPA including where such processes consider development in close proximity to a licensed facility, including waste facilities.

The Government’s response to the EPA Inquiry Report supported these two recommendations and stated that it would identify the appropriate statutory mechanisms to give effect to them. MD19 implements these recommendations by engaging the EPA early in the planning process to provide advice on environmental and human health risks. 

Ministerial Directions are procedural requirements that apply to certain planning decisions under the Planning and Environment Act 1987 (Vic). Planning authorities are required to have regard to the Ministerial Directions when preparing a planning scheme or amendment under section 12(2)(a) of the Planning and Environment Act 1987 (Vic) and must provide information and reports as required by the Ministerial Direction under section 12(1)(f). As such, planning authorities must now consider MD19 when preparing a planning scheme amendment, or review its planning scheme under section 12B.   

MD19 requires that, when reviewing a planning scheme in accordance with section 12B or preparing a planning scheme amendment, a planning authority must:

  • Seek the written views of the EPA about the potential impacts of the proposed review or amendment and any strategies, policies, plans or reviews forming the strategic basis for the review or amendment, including precinct structure plans, on the environment, amenity and human health.
  • For a planning scheme amendment, include in the explanatory report a statement of how the proposed amendment addresses the views of the EPA.

The rationale for MD19 is to extend the influence of the EPA over land use planning decisions, reflecting the concerns raised in the EPA Inquiry Report. Planning authorities are now required seek advice from the EPA early in the process of reviewing or amending a planning scheme about the potential environmental, amenity, and human health impacts that could result from the review or amendment. By engaging the EPA early in the review and amendment process and addressing these impacts as part of the preparation of a planning scheme amendment, MD19 is intended to reduce delays further downstream in the process, for example, when EPA is asked to comment on an amendment that has already been prepared and put on exhibition. The input of the EPA is also intended to minimise adverse impacts and clashes between land uses in the future.

MD19 sets out four circumstances in which the advice of the EPA must be sought:

  • Where the review/amendment may allow the use or development of potentially contaminated land, and/or trigger the requirements of Ministerial Direction No. 1 or State Environment Protection Policy (Prevention and Management of Contamination of Land).
  • Where the review/amendment may allow the use or development of land that could result in water, noise, air or land pollution impacts on the environment, amenity or human health, including as defined by State Environment Protection Policies.
  • Where the review/amendment may allow the use or development within a buffer or separation distance for industry, including as set out in the Recommended Separation Distances for Industrial Residual Air Emissions—Guideline—EPA Publication 1518, as amended, and other relevant EPA guidelines.
  • Where the review/amendment may allow the use or development of land within a buffer or separation distance for an industry engaged in materials recycling, refuse disposal, transfer station (waste and resource recovery facility), including as set out in the EPA Victoria Best Practice Environmental Management Publication 788.3, Sitting, design, operation and rehabilitation of landfills (Landfill BPEM), as amended, and other relevant EPA guidelines.

Further background to the Direction can be found within Planning Advisory Note 73.

If you have any queries in relation to the operation of MD19 or other reforms to the environment protection legislation in Victoria, please contact Mark Beaufoy.

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