Kathy Mitchell Chief Panel Member, Planning Panels Victoria

Transcription

1 MAV Rural and Regional Planning Conference 31 May 2018 Kathy Mitchell Chief Panel Member, Planning Panels Victoria

2 Overview 1. About Planning Panels Victoria 2. Overview of 2017/18 matters 3. What has been happening in Regional Victoria 4. Preparing for a Panel 5. Recent policy changes 6. Prominent decisions 7. Outlook for 2018/19 2

3 Title Sub-heading About Planning Panels Victoria

4 About Planning Panels Victoria Public participation Planning Panels are established under the Planning and Environment Act 1987 (the Act) and are a means of facilitating public participation in the planning and environment decision making process. PPV also provides the pool of members for Advisory Committees and EES Inquiries Independent They provide a process to independently assess planning scheme changes or development proposals through consideration of submissions, conduct of Hearings and preparation of reports Advise and recommend Planning Panels are advisory and make recommendations; with the final decision made by the responsible statutory body or the Minister for Planning

5 Planning Panels Victoria Enabling legislation Planning and Environment Act 1987: Planning Scheme Amendments s153, s155 Combined Planning Scheme Amendment and Permit Applications: s96a, s153, s155 Advisory Committees: s151, s152 Planning permit applications called in by Minister: s97b or s97c Environment Effects Act 1978: EES Inquiries: s9 Major Transport Projects Facilitation Act 2009: Major Transport Projects s35 and s235

6 Panels Duty of a Panel Bound by provisions of the Planning and Environment Act 1987: S.23 Council decision to refer submissions to Panel S.24 submitters right to be heard S.160 hearings in public S.161 rules of natural justice and procedural fairness S.161 may inform itself on any matter in any way it thinks S.162 right to be represented S.166 technical defects S.167 regulate its own proceedings Review mechanism S.39 referral to VCAT if there are procedural issues

7 Planning Panels Victoria Structure Chief Panel Member Deputy Chief Panel Member Having a diverse range of engaged professionals keeps PPV relevant and informed in its decision making 5 Senior Members (full time) 8 Senior Sessional Members 3 Senior Project Managers / Officers 6 Administration Support Staff 69 Sessional Members includes 4 technical experts

8 Planning Panels Victoria Recent changes Nick Wimbush has been appointed to the new position of Deputy Chief Panel Member Dalia Cook has been appointed to the position of Senior Panel Member One Senior Panel Member is currently being sought 13 new Sessional Panel Members were appointed in March 2018, covering skills of law, rural and regional planning, urban design, waste management and mediation: 8 Colin McIntosh Deanne Smith Elissa Bell Gabby McMillian Jane Monk John Ginivan Prue Mansfield Sandra Brizga Shelley McGuiness Stephen Axford Steve Blackley Tanya Burdett Tina Webb

9 Overview of matters 2017/ , Panels and Advisory Committees Submissions considered Reports completed One report every 1.8 business days 1 Jul May

10 Overview of matters in 2017/18 Of the 114 matters appointed: Amendments 87 Advisory Committees 10 EES Inquiries 1 Combined EES / Advisory Committees 1 Combined Amendment & Permit 11 Ministerial Call In 4 10

11 11 What has been happening in regional Victoria?

12 What has happened in regional Victoria? Planning Scheme Amendments Approximately 51 in the past financial year, over 29 municipalities All adopted as exhibited or subject to changes 7 combined amendments and planning permit applications 3 Permit Call-ins Larger Councils - eg Greater Geelong (10), Greater Shepparton (5), Surf Coast (3), Glenelg (2), Greater Bendigo (2), Mitchell (2), Moorabool (2), Wangaratta (2), Wodonga (2) Site specific and area rezonings, heritage reviews, environmental overlays, residential, commercial and industrial strategies, MSS review, structure plans, landscape studies (See handout for complete list) 12

13 What is happening in Regional Victoria? Apollo Bay Tourism Resort Call-in Bacchus Marsh Urban Growth Framework and Housing Strategy Campbells Creek Catchment overlays Golden Plains Wind Farm EES Inquiry Government Land Stand Advisory Committee (various sites) Kilmore and Wandong-Heathcote Junction Structure Plans Mildura Framework and Structure Plans, Urban Design Guidelines Shepparton Solar Farm Permit Call-in Shepparton North East Precinct Structure Plan Stanley Structure Plan (Indigo) Traralgon Activity Centre Plan 13 Wodonga Leneva Baranduda PSP and DCP

14 Solar Farm Proposals 14 Wangaratta Solar Farm Advisory Committee The Minister for Planning appointed an Advisory Committee to review an Application for Review called in from VCAT for an application to amend a Planning Permit Application for a Solar Wind Farm at Eldorado Road, North Wangaratta. The Committee submitted its report in November 2017, recommending the permit be amended subject to revised conditions. Issues included: visual impacts, noise, glare and glint, fire risk. Greater Shepparton Solar Farm Permits Call-in At the request of Greater Shepparton City Council, the Minister for Planning called in four solar farm permit applications and referred the submissions to a panel. The Panel concluded its hearings this week and will submit its report in late July. Key issues include: visual impact, noise, glare and glint, light spill, temperature change and loss of agricultural land.

15 Shepparton Retail Proposals Greater Shepparton C192, C193 & PPA The amendments were considered by the same panel and ran concurrently with one Directions Hearing, and one Panel Hearing in 2017 Amendment C192 which implements the Commercial Activity Centres Strategy (2015) was adopted by Council as per Panel recommendations and is with DELWP for approval. Amendment C193 & permit Rezones land to facilitate the development of a supermarket in Shepparton North. The Panel recommended this amendment be split into two parts. C193 Part 1 (PAO) adopted by Council as per Panel recommendations and is with DELWP for approval The IGA development received a planning permit (for development including two supermarkets) in April 2018 through a VCAT compulsory conference C193 Part 2 (Lascorp Proposal) - is likely to be considered at the June Council meeting for decision. 15

16 Shepparton Retail Proposals Site Context of Amendment C193 and existing IGA site, Shepparton North 16

17 Shepparton Retail Proposals Planning permit /A plans endorsed by Council in January 2017 at Numurkah Road, Shepparton North Amended Plans approved through compulsory conference at VCAT in April

18 Preparing for a Panel

19 Setting Panel Dates Advise PPV early - Advise PPV in writing through the Chief Panel Member of any significant matters forthcoming, or if Council seek to group a series of Amendments before pre-setting hearing dates. This will ensure timeframes can be met and appropriate members allocated. Amendments can be grouped - A series of amendments may be grouped to save costs as demonstrated through the current Moorabool C79 and C81, and Mitchell C117 and C123, both of which are part of an ongoing series with common members.

20 Setting Panel Dates and call-ins Proponent led amendments - Ensure proposed hearing dates are discussed with the proponent before they are pre-set with PPV to avoid complications once the matter is formally referred to a Panel. Permit call-ins - If a Council seeks the Minister for Planning to call-in a matter, Council may be obliged under the Act to pay the costs of the process (refer s97e and 151(7)).

21 Tips on preparing and presenting submissions Know your material Do it yourself you know best (unless it is a highly contested matter) Make it readable, set it out clearly, with good headings Ensure submissions are concise, but complete enough to provide all relevant information Have appendices as a separate handout, with tabs Do not ask questions of a witness for the sake of it Practice your presentation with others Make very clear recommendations that relate to the detail of the amendment so there is not doubt what you are conveying

22 Panels On the Papers Not as simple or cost effective as it seems Needs agreement of all submitters if one wishes to exercise right to be heard, Panel must oblige Often involves significant back & forward letters Just because someone doesn t want to be heard, submissions must be considered Some have a Directions Hearing, which becomes defacto hearing Some require site inspection Still requires a properly considered report Incumbent on councils to negotiate out with submitters as much as practically possible

23 Recent Policy Changes Bushfire Planning policy and controls have experience many changes recently and Panels are seeking further information in response. Amendment VC140 introduced a new Clause 13.05, providing a stronger approach to managing bushfire risk for new development and detailing how to prioritise the protection of human life over all other policy considerations. The new Planning Advisory Note 68 Bushfire State Planning Policy Amendment VC140 states that a new schedule to the BMO must be supported by the relevant fire authority. This means that the relevant fire authority or CFA should be asked to comment on any relevant matter relating to this. The Advisory Note also states that schedules may only vary bushfire protection measures from those in Clause where bushfire mitigation strategies are applied at the settlement scale [and that] schedules must be supported by the relevant fire authority.

24 Ministerial Direction on Form and Content The Ministerial Direction: The revised Direction was gazetted on 24 May 2017 to improve the format and operation of planning schemes and provide additional guidance for drafting amendments. The Direction cannot be varied. Where new ordinance does not meet style requirements, it must be modified, rewritten to fit the Direction. For example, the design objectives in some schedules specify a maximum of five objectives.

25 Ministerial Direction on Form and Content What does this mean for the Panel process? A Council is not expected to update its Amendment to comply, but a Panel may recommend that Council review the provisions and schedules when finalising the Amendment to ensure they are consistent with the revised Direction. A Panel will not undertake a full assessment of the Amendment in accordance with the revised Ministerial Direction on the Form and Content of Planning Schemes.

26 Smart Planning How has PPV been involved? PPV team members have actively participated in: Planning Scheme Information Management System (PSIMS) new planning.vic.gov.au planning portal Planning Rules. PSIMS: Council representatives, including representation from regional local government, participated in this leading project. PPV will be combining new Smart Planning features with its Green Plan to innovate future processes.

27 Prominent Panel Decisions

28 Prominent Decisions PPV Winky Pop Ltd & Or Australia Pty Ltd v Hobsons Bay CC [2008] VCAT 206 Parties must have a reasonable opportunity to be heard Panels are not required to spoon feed submitters rather to put in place reasonable processes to ensure that all submitters get a fair go on a case by case basis All relevant material must be revealed to all parties If new information is supplied, parties should be given the opportunity to comment.

29 Prominent Decisions PPV Coastal Estates P/L v Bass Coast CC [2010] VCAT When a Panel goes beyond matters raised in submissions and evidence, and applies its own specialist knowledge, it must disclose this to the parties and give them an opportunity to respond A Panel is not obliged to point out the gaps in a party s case, or forewarn it that it s submissions or evidence may not be accepted Unchallenged evidence will not necessarily be determinative

30 Prominent Decisions PPV Australian Conservation Foundation V Latrobe City Council [2004] VCAT Panels (and councils) can refuse to consider irrelevant submissions What s relevant has a broad scope can include indirect effects, depending on significance and likelihood to flow from approving the amendment To be safe, councils should refer all submissions to the panel, and let the panel decide whether they are relevant Terms of Reference don t apply to a planning scheme amendment

31 Prominent Decisions PPV Dustday Investments P/L v Minister for Planning [2015] VSC It is up to the Panel to decide what weight should be given to the various competing considerations raised by an amendment The Panel is required to consider all submissions referred to it, but is not obliged to make findings and report on every single matter raised in every single submission Matters to be dealt with at permit application stage is not a failure to consider those matters

32 Prominent Decisions PPV David v Mildura Rural CC [2016] VCAT Just because the Panel disagrees with a submitter does not mean the Panel got it wrong Distinction between submitters (even those with relevant expertise), and independent expert witnesses a person can t be both a submission is not evidence evidence is afforded more weight as it is subject to testing and cross-examination It is not VCAT s role in s39 proceedings to consider whether the Panel made substantive administrative law errors

33 Prominent Decisions PPV Shiel FCP P/L v Melbourne CC [2017] VCAT Post exhibition changes have no statutory or legal effect, but the Panel has the power to consider them s161 Planning authority therefore must refer all submissions to the panel even if some are resolved through post exhibition changes A Panel is to consider the exhibited version of an amendment and recommendations will always relate back to the exhibited version Planning authority must provide reasons to the Minister for Planning if it departs from Panel s recommendations

34 Thank you and questions