Planning and Environment Amendment (Distinctive Areas and Landscapes) Bill2017

Introduction Print

EXPLANATORY MEMORANDUM

581402

BILL LA INTRODUCTION 12/12/2017

Clause Notes

Part 1—Preliminary

Clause 1sets out the main purposes of the Bill, which are to amend thePlanning and Environment Act 1987 and to make consequential amendments to other Acts.

The Bill amends the Planning and Environment Act 1987 to provide for—

  • the declaration of distinctive areas and landscapes; and
  • the preparation and implementation of a Statement ofPlanning Policy for a declared area to ensurecoordinated decision-making by public entities in relation to declared areas.

Clause 2provides for the commencement of the Bill. The Bill will come into operation on the day after the day on which the Bill receives the Royal Assent.

Part 2—Amendment of Planning and Environment Act 1987

Clause 3inserts new definitions and substitutes the existing definition of responsible public entity in section 3(1) of the Planning and Environment Act 1987.

The Bill inserts new definitions of declared area, declared areaframework plan, declared area planning scheme, protectedsettlement boundary, protected settlement boundary amendment, public entity, revocation order, settlement boundary, Statement of Planning Policy and water corporation.

A key definition is Statement of Planning Policy which means aStatement of Planning Policy approved under new Part 3AAB in relation to a declared area, as amended from time to time. Another key definition is declared area which means an area towhich an order under new section 46AO applies.

The existing definition of responsible public entity is substituted with a new definition that specifies the responsible public entities for the purposes of new Part 3AAB, in addition to the responsible public entities specified for the purposes of Part 3AAA.

For the purposes of new Part 3AAB, a responsible public entity in relation to a declared area means any of the following entities—

  • the Secretary to the Department of Environment, Land,Water and Planning (being the body corporate established under the Conservation, Forests and Lands Act 1987);
  • the water corporation established or re-structured under the Water Act 1989 responsible for the area in which the declared area is located;
  • a municipal council whose municipal district contains land in the declared area;
  • Parks Victoria;
  • the Victorian Planning Authority;
  • a Catchment Management Authority for a catchment and land protection region that contains land in the declared area;
  • the Roads Corporation;
  • Victorian Rail Track;
  • a committee of management or trustees under the Crown Land (Reserves) Act 1978 in relation to land inthe declared area;
  • a Traditional Owner Land Management Board established in relation to land in the declared area;
  • any other public entity that is prescribed to be a responsible public entity in relation to the declared
    area.

Clause 4inserts new Part 3AAB which contains new sections 46AN to46AZM in the Planning and Environment Act 1987.

Division 1—Objects

New section 46AN specifies the objects of new Part 3AAB as—

  • to recognise the importance of distinctive areas and landscapes to the people of Victoria and to protect and conserve the unique features and special characteristics of those areas and landscapes;
  • to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas;
  • to enable the integration of policy development, implementation and decision-making for declared areasunder Statements of Planning Policy;
  • to recognise the connection and stewardship of traditional owners in relation to land in declared areas.

Division 2—Declaration of distinctive areas and landscapes

New section 46AO(1) enables the Governor in Council, on the recommendation of the Minister, to declare an area of Victoria tobe a distinctive area and landscape by order published in the Government Gazette.

New section 46AO(2) requires an order under subsection (1) toinclude a description of the area declared (which may be by reference to an incorporated plan),to specify which attributes under new section 46AP(1) have led to the area being declared as a distinctive area and landscape and to identify the relevant threat of significant or irreversible land use change to the area described in new section 46AP(2).

The order may include a preamble which sets out any of the following—

  • the significance of the area to the people of Victoria;
  • statements recognising the significance of the area to traditional owners including statements in traditional languages together with their English translations.

New section 46AO(3) provides that before making a recommendation under subsection (1), the Minister must—

  • be satisfied that the area has a majority of the attributes set out in new section 46AP(1) and is under threat as set out in new section 46AP(2);
  • consult the Premier and the Treasurer.

New section 46AO(4) provides that an order under subsection (1) takes effect on the date of publication of the order in the Government Gazette or on a later date specified in the order.

New section 46AP(1) provides that the Minister must be satisfied that an area has a majority of the following attributes to be declared as a distinctive area and landscape—

  • outstanding environmental significance;
  • significant geographical features, including natural landforms;
  • heritage and cultural significance;
  • natural resources or productive land of significance;
  • strategic infrastructure or built form of significance;
  • an attribute prescribed for the purposes of this section.

New section 46AP(2) provides that the Minister must be satisfied that an area is under threat of significant or irreversible land use change that would affect the environmental, social or economic value of the area. A threat may arise through land use conflicts, multiple land use changes over time or any other land use threat prescribed for the purposes of this section. An example of a landuse conflict is a rural township where development is encroaching upon valued agricultural land.

New section 46AQ(1) provides that the Governor in Council,onthe recommendation of the Minister, may revoke adeclarationunder new section 46AO by order published in theGovernment Gazette. Under subsection (2), the revocation ordermust include a statement that it does not take effect unlessratified by Parliament in accordance with Division 2 of Part3AAB. Subsection (3) requires the Minister to consult with the Premier and the Treasurer before making a recommendation under subsection (1).

New section 46AR sets out the procedure for ratification of a revocation order. Subsection (1) provides that the Minister mustcause the revocation order to be laid before each House ofParliament within 7 sitting days of that House after the publication of the order. Subsection (2) provides that a revocation order does not take effect unless it is ratified by a resolution passed by each House of Parliament within 10 sitting days after it is laid before that House. Subsection (3) provides that the Minister must publish a notice of the ratification of the revocation order in the Government Gazette. Subsection (4) provides that a revocation order that has been ratified comes intoeffect when the notice of ratification is published in the Government Gazette or on any later dayspecified in the notice ofratification.

New section 46AS sets out when a revocation order will lapse. Subsection (1) provides that a revocation order that has not been ratified lapses on the day immediately after the last day on which it could have been ratified. Subsection (2) provides that when a revocation order has lapsed, the Minister must publish a notice in the Government Gazette setting out the date on which the order lapsed. Subsection (3) provides that the publication of the notice of lapsing is conclusive proof of the date that the revocation order lapsed.

Division 3—Statements of Planning Policy for distinctive areas and landscapes

Subdivision 1—Preparation and approval of Statement of Planning Policy

New section 46AT(1) provides that the Minister must prepare aStatement of Planning Policy for an area declared to be a distinctive area and landscape.

New section 46AT(2) provides that the declaration of the declared area will lapse if the Statement is not endorsed in accordance with new section 46AX and approved in accordance with new section 46AY within—

  • one year after the declaration of the area under new section 46AO takes effect; or
  • a period approved by the Governor in Council under new section 46AT(3).

New section 46AU provides that the purpose of a Statement ofPlanning Policy is to create a framework for the use and development of land in a declared area to ensure the protection and conservation of the distinctive attributes of the declared area (outlined in the order made under new section 46AO).

New section 46AV provides that the Statement of Planning Policy for a declared area must—

  • set out a vision for at least 50 years that identifies thevalues, priorities and preferences of the Victorian community in relation to the distinctive attributes of the declared area, including preferences for future land use, protection and development of that area; and
  • set out the long-term needs for the integration of decision-making and planning for the declared area; and
  • state the parts of the Statement that are binding on responsible public entities and the parts that are in thenature of recommendations to which responsible public entities are only required to have regard; and
  • include a declared area framework plan in accordance with new section 46AV(2); and
  • set out Aboriginal tangible and intangible cultural values, and other cultural and heritage values, in relation to the declared area.

New section 46AV(2) requires a declared area framework plan to provide a framework for decision making in relation to the future use and development of land in the declared area that—

  • integrates environmental, social, cultural and economic factors for the benefit of the community and encourages sustainable development and identifies areas for protection and preservation of the distinctive attributes of the declared area; and
  • may specify settlement boundaries in the declared areaor designate specific settlement boundaries in the declared area as protected settlement boundaries.

New section 46AW provides that when preparing a Statement ofPlanning Policy the Minister must consult with responsible public entities, the local Victorian community and any other persons or entities that the Minister considers may be affected bythe Statement of Planning Policy.

New section 46AX(1) requires the Minister to give a copy of adraft Statement of Planning Policy to the responsible public entities specified in the draft Statement for endorsement by them and the Ministers responsible for those entities. Subsection (2) provides that the Minister responsible for a responsible public entity may give a written direction to the entity in relation to the endorsement of the draft Statement of Planning Policy.

New section 46AY provides that once a Statement of Planning Policy has been endorsed under new section 46AX, the Governor in Council may approve the Statement of Planning Policy. Undersubsection (2), the Minister must publish a notice of an approval under subsection (1) in the Government Gazette. Thenotice must specify where a person may inspect the Statement.

New section 46AZ provides that a Statement of Planning Policy takes effect on the day the notice of approval is published in the Government Gazette or on a later day specified in the notice. Under subsection (2), on commencement, a Statement of Planning Policy is taken to form part of the State standard provisions of the Victoria Planning Provisions.

New section 46AZA(1) provides that the Minister may preparean amendment to a Statement of Planning Policy. Subsection (2) provides that new sections 46AV to 46AZ applyto an amendment to a Statement of Planning Policy as if areference in those sections to a Statement of Planning Policy werea reference to an amendment to a Statement of Planning Policy. Subsection (3) enables the Governor in Council, on the recommendation of the Minister, to make a minor or technical correction to a Statement of Planning Policy by order published in the Government Gazette.

Subdivision 2—Amendment of declared area planning scheme

New section 46AZB(1) provides that the Minister must prepare an amendment to the planning scheme applying to a declared area to give effect to an approved Statement of Planning Policy and to give effect to an approved amendment to a Statement of Planning Policy.

Subsection (2) provides that Part 3 of the Planning and Environment Act 1987 (except Divisions 1 and 2 and sections39(1) to 39(5)) applies to the preparation and approval ofan amendment to a declared area planning scheme under newsection 46AZB.

New section 46AZC(1) provides that the Minister must not approve an amendment to a declared area planning scheme if the amendment is inconsistent with a Statement of Planning Policy for that declared area.

New section 46AZC(2) provides that a responsible public entity which is a planning authority must not prepare an amendment to a declared area planning scheme that is inconsistent with any part of a Statement of Planning Policy for the declared area that is expressed to be binding on that responsible public entity.

Subdivision 3—Protected settlement boundary amendments

New section 46AZD(1) provides that sections 36, 37 and 38 of the Planning and Environment Act 1987 do not apply to an amendment to a planning scheme applying to land that is wholly or partiallywithin a declared area—

  • approved after the approval of a Statement of Planning Policy in relation to that area; and
  • that is or includes an amendment of a protected settlement boundary.

New section 46AZD(2) provides that a protected settlement boundary amendment does not take effect unless ratified by Parliament in accordance with Subdivision 3 of Division 3 of Part 3AAB.

New section 46AZE(1) provides that the Minister must cause a protected settlement boundary amendment to be laid before each House of Parliament within 7 sitting days of that House after it is approved.

Where a permit has been granted under section 96I of the Planning and Environment Act 1987 in respect of a protected settlement boundary amendment, the Minister must cause a notice specifying that the permit has been granted to be laid before each House of Parliament at the same time as the protected settlement boundary amendment is laid before that House (new section 46AZE(2)).

New section 46AZE(3) provides that a protected settlement boundary amendment does not take effect unless it is ratified by a resolution passed by each House of Parliament within 10 sitting days after it is laid before that House.

New section 46AZE(4) provides that the Minister must publish anotice of the ratification of the protected settlement boundary amendment in the Government Gazette specifying where a person may inspect the amendment.

A protected settlement boundary amendment that has been ratified comes into operation—

  • when the notice of ratification of the amendment is published in the Government Gazette; or
  • on any later day specified in the notice.

New section 46AZF(1) provides that a protected settlement boundary amendment that has not been ratified lapses on the dayimmediately after the last day on which it could have been ratified. Subsection (2) provides that when a protected settlement boundary amendment has lapsed, the Minister must publish a notice in the Government Gazette setting out the date on which the amendment lapsed. Subsection (3) provides that the publication of the notice of lapsing is conclusive proof of the datethat the amendment lapsed. Subsection (4) provides that anamendment to a Statement of Planning Policy relating to a protected settlement boundary amendment lapses if the latter amendment has lapsed under subsection (1).

New section 46AZG provides that sections 4G, 4H, 4I, 40, 41 and 42 (as the case requires) of the Planning and Environment Act 1987 do not apply to a protected settlement boundary amendment unless and until the amendment is ratified.

New section 46AZH provides that if a permit has been granted under Division 5 of Part 4 of the Planning and Environment Act 1987 and the planning scheme amendment to which the permit applies is a protected settlement boundary amendment—

  • if the amendment lapses, the permit is taken to be cancelled on that lapsing; and
  • if the amendment is ratified, the notice of ratification must also specify where a person may inspect a permit.

Subdivision 4—Review of Statement of Planning Policy

New section 46AZI(1) provides that the Minister must ensure that a review of a Statement of Planning Policy for a declared area is completed no later than 10 years after the commencement of the Statement.

After any review, the Minister may prepare a new Statement of Planning Policy or an amendment to the existing Statement in accordance with the requirements of new section 46AZA.

New section 46AZI(3) provides that new sections 46AV
to 46AZ (which relate to the preparation of a Statement of Planning Policy) apply to the preparation of a new Statement.

Division 4—Interaction between specific legislation and Statement of Planning Policy

New section 46AZJ provides that a Statement of Planning Policy must not be inconsistent with other legislation, specifically—

  • if a Statement of Planning Policy applies to land to which a management plan under the Heritage Rivers Act 1992 applies, the Statement must not be inconsistent with—
  • that Act; or
  • the management plan under that Act unless theMinister administering that Act, after consultation with the Minister administering the Act under which the relevant land is controlled or managed, gives a specific written endorsement to the planning Minister authorising the inconsistency;
  • if a Statement of Planning Policy applies to any land ina park within the meaning of the National Park Act1975, the Statement must not be inconsistent with—
  • that Act; or
  • any management plan under that Act unless the Minister administering that Act gives a specific written endorsement to the planning Minister authorising the inconsistency;
  • if a Statement of Planning Policy applies to any landthat is reserved under the Crown Land (Reserves) Act1978, the Statement must not be inconsistent with—
  • that Act; or
  • the purpose for which that land is reserved; or
  • any relevant recommendation of the Land Conservation Council (established under the Land Conservation Act 1970 (as in force immediately before its repeal) applying to the land, of which notice has been givenby the Governor in Council under section 10(3) of thatAct (as so in force); or
  • any Government response (or amended Government response) under section 25, 26 or26G of the Victorian Environmental Assessment Council Act 2001 to any report under section 23 or 26E of that Act applying tothe land;
  • if a Statement of Planning Policy applies to any land that is reserved under the Crown Land (Reserves) Act1978 and that land is subject to additional management requirements as a State Wildlife Reserve or Nature Reserve under the Wildlife Act 1975, the Statement must not be inconsistent with—
  • the Wildlife Act 1975; or
  • any plan of management under the Wildlife Act1975 unless the Minister administering that Act gives a specific written endorsement to the planning Minister authorising the inconsistency;
  • if a Statement of Planning Policy applies to any land in a waterway management district for which a regional waterway strategy has been prepared under section 190 of the Water Act 1989, the Statement must not be inconsistent with—
  • that Act; or
  • that strategy unless the water Minister and the environment Minister (within the meaning of the Water Act 1989) jointly give a specific written endorsement to the planning Minister authorising the inconsistency;
  • if a Statement of Planning Policy applies to any land which is the subject of a joint management plan under Part 8A of the Conservation, Forests and Lands Act1987, the Statement must not be inconsistent with—
  • that Act; or
  • the joint management plan unless the Minister responsible for Part 8A of that Act and the Traditional Owner Land Management Board in relation to that land jointly give a specific written endorsement to the planning Minister authorising the inconsistency.

New section 46AZJ(7) provides that the entity giving an endorsement under section 46AZJ must publish a notice of the endorsement in the Government Gazette.