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Major Transport Projects Facilitation
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
The Major Transport Projects Facilitation Bill (the Bill) is a cornerstone of
the Government's Victorian Transport Plan (VTP), which seeks to deliver a
range of major transport projects.
The efficient delivery of road and rail infrastructure projects in the VTP is
necessary to provide an integrated and sustainable transport system.
The Bill establishes a streamlined approach to facilitate the more efficient
delivery of critical transport infrastructure projects, enhancing Victoria's
capacity to build a world-class transport network for all Victorians. The Bill
does this by introducing a streamlined assessment and approvals process and
providing new project delivery powers.
The Bill provides greater certainty, timeliness and cost-efficiency.
It improves regulatory efficiency while maintaining regulatory rigour and
effectiveness. The Bill ensures appropriate rigour in the assessment of
projects to achieve sustainable, quality outcomes with appropriate planning
and environmental safeguards. It establishes a transparent process with
community consultation and the opportunity for interested parties to be
heard.
Declaration, assessment and approvals
The Bill provides that a major transport project is "declared" by the Governor
in Council on recommendation of the Premier after being assessed as being
of State or regional economic, social or environmental significance.
Such projects are likely to be urgently required, complex and expected to
generate significant net benefits for the Victorian community.
A Ministerial guideline published by the Premier specifies the criteria for
determining whether to declare a major transport project. The purpose of the
guideline is to transparently indicate the nature of the projects able to access
the assessment, approval and delivery powers and processes under the Bill.
561246 1 BILL LA INTRODUCTION 12/8/2009
There are many points of delay and inefficiency in the current planning,
environment and heritage assessment and approval phases of major transport
projects. The multiple processes for obtaining necessary approvals results in
the duplication of both subject matter and process. Existing processes also
present unnecessary sequencing issues for major transport projects and create
uncertainties due to procedural discretions available to decision makers.
To more efficiently facilitate the attainment of these required approvals, the
Bill establishes a one-stop shop for assessing and making decisions about
"declared" major transport projects.
The one-stop shop consolidates the multiple environmental, planning and
heritage approvals required for major transport projects into a single
assessment and approval process. The Bill does so by providing for the
Minister for Planning to determine all required approvals in a single decision-
making power and in accordance with strict statutory time limits. In order to
maintain standards, the Planning Minister's decision must take into account
the criteria under the existing legislation.
The consolidation of the decision making process with a single decision-
maker is designed to reduce duplication and unnecessary administration and
to provide for a balanced decision that takes account of all relevant planning,
environment and heritage assessment criteria.
The Bill provides for a major transport project to be assessed using one of
two assessment "streams"--either the comprehensive impacts statement
assessment process or the impact management plan assessment process.
The impact management plan assessment process is intended to provide a
streamlined assessment and approval process in cases where only a limited
number of approvals are required. The impact management plan stream is
available only where the land required for the project is owned by a public
authority or reserved for a public purpose, and where the project does not
require or has already obtained any of the following approvals: a works
approval under the Environment Protection Act 1970, a permit or consent
under the Heritage Act 1995 or a planning permit or amendment to a
planning scheme under the Planning and Environment Act 1987.
Under the impact management plan assessment process, the proponent
submits approval documentation directly to the Minister for Planning.
Although the Impact Management Plan process involves a streamlined
approach, legislative standards are maintained by requiring the Minister to
take into account the same decision-making criteria provided for under
existing legislation.
Where the Minister for Planning determines that an impact assessment must
be conducted for a declared project, but the project does not meet the criteria
to be assessed using the impact management plan assessment process, the
comprehensive impact statement assessment process will apply for the
project.
2
A completed comprehensive impact statement for a declared project must be
publicly exhibited and submissions invited. The Minister for Planning will
establish a body similar to a planning panel known as an assessment
committee to receive and review submissions, and to conduct a preliminary
hearing and formal public hearing in relation to the comprehensive impact
statement. This process is designed to be transparent and to ensure that there
is no loss of opportunity for interested parties and the public to be heard.
Following the public exhibition and hearing processes, the assessment
committee will prepare a recommendation to the Minister for the Planning as
to whether the Minister should grant any or all of the necessary planning,
environment and heritage approvals sought for the declared project through
the one stop shop approach. The Planning Minister is required to take into
account the assessment committee's recommendation and other material
when making his or her decision as to whether to grant the necessary
approvals sought under the comprehensive impact statement assessment
process.
The Bill includes a clause that ousts all forms of review and appeal against all
decisions in Parts 1 to 4 of the Bill except the final approval decision of the
Planning Minister in clause 77(1). Further, any appeal, review of challenge
of a decision under clause 77 will be subject to certain requirements to
expedite the hearing to minimise the impact of the proceeding on project
delivery timelines.
Refer to the following flow charts which provide an overview of the relevant
processes established by the Bill.
3
MAJOR TRANSPORT PROJECTS FACILITATION BILL - IMP PROCESS
Consults with Planning Assess transport project In making the
Minister before making as being of economic, assessment must have
recommendation (s 11). social or environmental regard to the project
significance to the State declaration guidelines (s
or a region of the State 12(2)).
(s 12).
Recommendation to
Governor in Council.
On the recommendation of the Premier, may declare a transport project
to be a declared project to which the whole Act applies,
or the Act applies excluding Parts 3 and 8 of the Act.
Declaration must be published in Government Gazette (s 10)
After declaration of project, appoints a Project Minister (s14) for the project
Appoints a public authority to be the project proponent for the project (s 15)
Prepare project proposal guidelines Prepare a project proposal for
published in Government Gazette the project in accordance with the
(s 16). guidelines (s 19)
On receipt of project proposal, determines
whether CIS or IMP required - 10 business days.
Determination must be given to the proponent (s 20).
Notice of making of determination published in the Government Gazette (s 20)
In exceptional circumstances,
may by written notice request IMP DETERMINATION
further information from project
proponent before the 25
business days have ended Prepares scoping directions (s 22) and directs
(s23). "Stops the clock" on time consultation by project proponent (s 25) - 25
limit for preparation of scoping business days from date of determination.
directions until proponent Published in Government Gazette and copy
responds (s 24). given to proponent.
Planning Minister may prepare Project proponent prepares impact assessment
guidelines for the preparation of - satisfying content requirements specified (s
IMP or CIS published in 27) and having regard to guidelines (s 28).
Government Gazette (s 17).
Submits impact assessment to the Planning
Project Minister Minister and pays the application fee to the
Planning Minister (s 29)
Premier
Receives IMP Must consult with
Governor in Council (s 29) identified applicable
law decision maker
Project Proponent Approval Decision (s 79)
40 business days (s
Planning Minister 77, s 81)
4
MAJOR TRANSPORT PROJECTS FACILITATION BILL - CIS PROCESS
Consults with Planning Assess transport project as In making the
Minister before making being of economic, social or assessment must have
recommendation (s environmental significance to regard to the project
11). the State or a region of the declaration guidelines
State (s 12). (s 12(2)).
On the recommendation of the Premier, may declare a transport project to be a
declared project to which the whole Act applies, or the Act applies excluding Parts 3
and 8 of the Act. Declaration must be published in Government Gazette (s 10)
After declaration of project, appoints a Project Minister (s14) for the project
Appoints a public authority to be the project proponent for the project (s 15)
Prepare project proposal guidelines Prepare a project proposal for the project in
published in Government Gazette accordance with the guidelines (s 19)
(s 16).
On receipt of project proposal, determines
whether CIS or IMP required - 10 business
days. Determination must be given to the
In exceptional circumstances, may
proponent. Notice of making of determination
by written notice request further
published in the Government Gazette (s 20)
information from project proponent
before the 25 business days
have ended (s 30). "Stops the
clock" on time limit for preparation CIS DETERMINATION May amend
of scoping directions until scoping
proponent responds (s 32). Prepares scoping directions- 25 directions in
business days from date of exceptional
determination. Published in circumstances
Government Gazette and copy - give copy to
OR
given to proponent (s 30). proponent and
In exceptional circumstances, publish in
within 15 business days of Government
Establishes Assessment
determination, public invitation on Gazette (s 34)
Committee and gives them
Dept website and newspaper, terms of reference (s 35)
public comment on scoping
directions within 15 business days Prepares CIS in accordance with Planning
of notice (s 31). Extends time to scoping directions and Act (s 39) Minister may
45 business days (s 33). and regard to guidelines (s 40) prepare
guidelines for
Gives Planning Minister 20 business days written notice of intention preparation of
to submit CIS for review (s 41) IMP or CIS
published in
Submits CIS to Planning Minister for review, pays application fee (s41) Government
Gazette (s 17)
If not adequate, proponent must Written determination as to
Publishes AC's
revise and submit for review whether CIS is `adequate' for
TOR at same
(can be more than once) (s 43) public exhibition (s 42).
time or before
CIS publicly
Determines period of public exhibition of CIS - not less than 20 exhibited (s
business days - not more than 30 business days - Notice 37)
published on Dept website and in Government Gazette (s 45).
Publicly exhibits CIS (s 46). Publication of notice of public exhibition; given to Planning
Minister and other relevant parties (s 47). Makes CIS publicly available and provided to
stated parties (s 49) and (s 50 and 51)
CIS process continued on next page
5
CIS process continue from previous page
Public Submissions made to Assessment Committee (s 52)
Publishes notice of Publishes submissions on Dept website unless confidential (s
time and place of 53). Reviews each properly made submission (s 54) Gives
preliminary hearing in copies of all submissions to project proponent (s 55).
newspapers and Dept Consults with submitters to clarify submissions (s 56)
website as soon as
practicable after
commencement of
Holds preliminary hearing Gives project proponent CIS
public exhibition
within 20 business days issues report (from
period (s 58).
of end of public exhibition preliminary hearing and
period (s 57). submissions) within 20
business days of end of
public exhibit period (s 59)
Revised CIS Preparation of schedule of revisions Published notice of revised
given to to CIS within 10 business days of CIS and revised CIS on
EPA and fee receipt of issues report (s 60) and proponent's website and
paid if given to AC and Secretary. Revises provided to stated parties.
require CIS to address issues set out in Secretary publishes on Dept
works issues report (s 61). Gives AC 10 website (s 62).
approval (s business days notice of intention to
64). publish revised CIS (s 63) Direction to proponent to
under take supplementary
Publishes public notice of time and place of formal assessment (s 71).
public hearing (newspapers and websites) (s 66,s Proponent to comply with ss
67) 60, 62-64.
Applicable Holding of formal public hearing (s Possible further
law decision 68) - 30 business days supplementary
makers give assessment of prudent and
advice to AC AC recommendations within 30 feasible option - information
(s 65) business days of last day of formal requested from proponent (s
public hearing (s 73) 69, s 70)
(If required) Give copy of recommendations to EPA. Give any CHMP or notice of
EPA gives advice to Planning Minister on works VCAT review or court
approval - 30 business days (s 74) proceeding to Planning
Minister (s 75)
Approval decision - 40 business days (ss 77, 81).
Project Minister
Premier
Governor in Council
Project Proponent
Planning Minister
Assessment Committee
6
Project delivery powers
The Bill provides a suite of project delivery powers for project authorities,
the public authorities responsible for the development of major transport
projects. Most of these powers are available in existing Acts, however, the
operation of some of these powers has been modified to ensure that processes
are efficient and time periods more certain.
Specific project delivery powers provided for under the Bill include--
· powers of temporary occupation in relation to land that may be
acquired by the project authority subject to restoration and/or
compensation at the end of occupation;
· a process for the acquisition of all interests in land (including land
underground to a depth specified in the Governor in Council order)
within the project area;
· a streamlined process for the surrender of public land by public
authorities and municipal councils;
· "restricted access areas" to minimise disruption of project areas and
areas temporarily occupied under section 75 of the Land Acquisition
and Compensation Act 1986;
· provision for the Governor In Council to revoke both temporary and
permanent reservations over Crown land within the designated project
area;
· measures to enhance and streamline management of Crown land; and
· a streamlined regime for regulating interfaces between major transport
projects and existing utility infrastructure.
The Bill provides an innovative, efficient and transparent scheme for the
timely delivery of major transport projects. It is a key element of the ongoing
legislative reform program designed to enable a more integrated and
sustainable transport system.
Recent reform to Victorian legislative include introducing contemporary
transport safety regulation through the Bus Safety Act 2009 and the Rail
Safety Act 2006 and facilitating the improved efficiency and reliability of
public transport through the Transport Legislation (Miscellaneous
Amendment) Act 2009.
The scale of the reforms is illustrated by a comparison of the two diagrams
below. Diagram 1 represents the current transport portfolio legislation
framework in Victoria.
7
Diagram 1
CURRENT TRANSPORT LEGISLATION STRUCTURE
TRANSPORT ACT 1983
LOCAL
LOCAL
TRANSPORT BODIES & OFFICES GOVERNMENT
GOVERNMENT
ROAD ACT 1989
MANGEMENT
OBJECTS, FUNCTIONS & POWERS
ROADS
SPECIFIC POWERS OF THE CORPORATION
ROAD
SAFETY ACT TRANSPORT AND MARINE SAFETY
INVESTIGATIONS
Transport (Taxi Cab Industry Accreditation) Regulations 2007 LAND USE PLANNING &
FINANCIAL PROVISIONS
Transport (Taxi Cab Network Service Provide Accreditation INTEGRATION ENVIRONMENT
Exemptions) Regulation 2007 ACT 1987
ACCIDENT Transport (Ticketing) Regulations 2006
COMMERCIAL PASSENGER VEHICLE
Transport (Taxi Cab Licences - Market & Trading) Regulations
TOWING REGISTRATION, REGULATION AND LICENSING
2005
SERVICES Transport (Tow Truck) Regulations 2005
Transport (Taxi Cab) Regulations 2005
Transport (Passenger Vehicles) Regulations 2005
Transport (Conduct) Regulations 2005
Transport (Infringements) Regulations 1999
BUSINESS
PUBLIC PORTS &
FRANCHISEE
TRANSPORT MARINE
(PP) ACT
PUBLIC RAIL RAIL SAFETY PORT MARINE ACT POLLUTION OF
TRANSPORT CORPORATION ACT 2006 SERVICES 1988 WATERS BY
COMPETITION S ACT 1996 ACT 1995 NOXIOUS
ACTS SUBSTANCES
DEPARTMENT OF TRANSPORT - DECEMBER 2008
Diagram 2 sets out the target structure for Victorian transport legislation
being pursued by Government. The new framework represents major
renewal and restructure of the current framework. Achievement of the
settings outlined in the structure will establish clearer accountabilities for all
those involved in the planning, delivery, management and regulation of
transport services and infrastructure in Victoria.
The modal specific and project delivery reforms will ultimately sit within a
new integrated framework for the delivery and regulation of transport
services, to be established in Victoria by a major new statute, the Transport
Integration Act, which is planned for introduction in 2009.
8
Diagram 2
TRANSPORT LEGISLATION REVIEW - TARGET LEGISLATION STRUCTURE
ROADS
ROAD LOCAL LOCAL
MANAGEMENT TRANSPORT INTEGRATION ACT 2009 GOV
GOVERNMENT
LOCAL
ACT 2004 PURPOSE/ VISION ACT 1999
Various road management regulations
OBJECTIVES
PRINCIPLES Local Government (Transport)
MINISTERS Regulations (Proposed)
ROAD SAFETY DEPARTMENT OF TRANSPORT
ACT 1986 SECRETARY LAND USE
TRANSPORT BODIES/OFFICERS INTEGRATION
Various road safety regulations
TRANSPORT ACT/ TRANSPORT COMPLIANCE AND
MISCELLANEOUS ACT
ACCIDENT TOWING ENFORCEMENT PLANNING &
LAND USE
VALIDATION
SERVICES ACT 2007 Transport (Infringements ) Regulations 1999
TRANSITIONAL
Transport (Ticketing ) Regulations 2006
ENVIRONMENT
Transport (Conduct) Regulations 2005
MISCELLANEOUS ACT 1987
Accident Towing Services Regulations 2008
Transport (Infringements) Regulations 1999 Planning (Transport) Regulations
Transport (Ticketing) Regulations 2006 (Proposed)
Transport (conduct) Regulations 2005
BUSINESS FRANCHISE
(PP) ACT 1978
PUBLIC TRANSPORT PORTS AND
TRANSPORT PROJECTS MARINE
RAIL RAIL BUS TAXI/CAR WALKING MAJOR PORT POLLUTION
MANAGE- SAFETY SAFETY HIRE & CYCLING TRANSPORT SERVICES OF WATERS
MENT ACT ACT 2008 ACT 2008 SERVICES ACT* PROJECTS ACT 1995 BY NOXIOUS
1996 ACT * FACILITATION SUBSTANCES
Rail Safety Bus Safety Walking & Cycling Port Services
Regulations 2006 Regulations 2010 Regulations ACT (Local Port) ACT
Rail Management Taxi/Car Hire Transport Projects Pollution of Waters by
Regulations TBC BUS Services Facilitation Regulations MARINE Noxious Substances
HERITAGE SERVICES Regulations SAFETY Act 2002
RAILWAYS ACT 1995 ACT*
ACT*
Heritage Railways Bus Services Regulations Acts * Proposed Marine
Regulations Regulations 2009 Regulations 2010
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill provides for preliminary matters, including purposes,
commencement and definitions.
Clause 1 sets out the purpose of the Bill, which is to facilitate the
development of major transport projects.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that the Bill will come into operation on a
day or days to be proclaimed.
Subclause (2) provides that if a provision of the Bill does not
come into operation before 1 July 2010, it will come into
operation on that day.
Clause 3 sets out definitions of terms used in the Bill. Key definitions
used in the Bill include--
applicable approval which refers to the approvals,
authorisations, consents, determinations, decisions (however
described), licences or permits under an applicable law
specified in column 2 of the Table in Schedule 1. The Bill
9
seeks to consolidate decision making in relation to applicable
approvals by providing that the Planning Minister's approval
decision will be taken to be a decision granting the applicable
approval under the relevant applicable law specified in
column 1 of the Table in Schedule 1;
approval decision means a decision of the Planning Minister
under clause 77. An approval decision under clause 77 of this
Bill is one that is made by the Planning Minister regarding
whether to grant or refuse to grant all or some or the applicable
approvals that are necessary for the declared project or part of
the declared project to be developed;
approved project means a declared project in respect of which
a project area has been designated. A project must be an
approved project under Part 4 before it is able to access the
powers relating to project delivery under Parts 5, 6 and 7 of the
Bill;
assessment committee means an assessment committee
established under Part 8. An assessment committee is
established as part of the comprehensive impact statement
assessment process for a declared project. The assessment
committee process and procedure has been modelled on the
panel process used as part of the environment effects statement
process under the Environment Effects Act 1978 or the
planning scheme amendment process under the Planning and
Environment Act 1987. Although, there are some differences
with the panel process under this Bill, such as the addition of a
preliminary hearing stage;
assessment committee recommendation means a
recommendation under clause 73. Under the comprehensive
impact statement assessment process, the assessment committee
makes its recommendation to the Planning Minister following
its review of the comprehensive impact statement, written
comments and submissions from the public and the conduct
of the preliminary hearing and formal public hearing.
Subclause 80(2) requires the Planning Minister to have regard
to the assessment committee recommendation when making an
approval decision in relation to the declared project;
declared project means a transport project that has been
declared under clause 10 to be a declared project.
The declaration of a project is made by the Governor in Council
on the recommendation of the Premier. A project proponent of
a declared project is eligible to access and utilise one of the
impact assessment processes prescribed in the Bill as a means
of gaining project approvals. The Planning Minister under
10
clause 20 determines which impact assessment process is
applied. A transport project may also be declared only for the
purpose of a project proponent gaining access to project
delivery powers specified in Parts 5, 6 and 7 of the Bill. Such a
declaration may occur when the transport project has or is
gaining project approvals in accordance with the processes
prescribed under the relevant applicable laws;
development, in relation to a declared project, includes--
· the construction of a facility or infrastructure;
· the construction or exterior alteration or exterior
decoration of a building;
· the demolition or removal of a building or works;
· the construction or carrying out of works;
· the subdivision or consolidation of land, including
buildings or airspace;
· the placing or relocation of a building or works on land;
and
· the construction or putting up for display of signs or
hoardings.
All of the items in this list other than "the construction of a
facility or infrastructure" are taken from the definition of
"development" in the Planning and Environment Act 1987.
The terms used in this list are intended to be understood as they
are in the Planning and Environment Act 1987 and any
relevant case law under that Act;
discretionary applicable law criteria means matters, things,
criteria, factors, circumstances, principles or objects specified
in an applicable law that may be applied, taken into account or
had regard to in the applicable law by an applicable law
decision maker when making a decision whether to grant an
applicable approval under that law. This term is intended to
operate in conjunction with the term "mandatory applicable law
criteria" to refer to matters set out under the applicable approval
laws that the applicable law decision maker must take account
of when determining whether to grant an applicable approval;
A distinction is made between those matters that are expressed
as being determinative of the decision of an applicable law
decision maker (mandatory applicable law criteria) and those
that are required to be taken into account (discretionary
applicable law criteria). Under the Bill, both mandatory and
11
discretionary applicable law criteria will be treated by the
Planning Minister as discretionary, and will form part of the
range of considerations that the Minister must have regard to
in making his or her approval decision;
impact means a reasonably foreseeable, direct or indirect impact
arising from--
· the development of an approved project; or
· the use of transport or non-transport infrastructure
established by the approved project; or
· the decommissioning of the transport or non-transport
infrastructure established by the approved project.
The term impact is intended to be broadly defined and to
incorporate direct and indirect impacts that can reasonably be
foreseen, as those terms are understood in case law;
mandatory applicable law criteria means matters, things,
criteria, factors, circumstances, principles or objects specified in
an applicable law that must be applied or complied with by an
applicable law decision maker when making a decision whether
to grant an applicable approval under that law. This term is
intended to operate in conjunction with the term discretionary
applicable law criteria;
non-transport infrastructure means a facility, building, fixture,
fitting or permanent structure (whether residential, commercial
or industrial) that, when constructed, is in, on, over, part of,
related, or connected to transport infrastructure;
project area, for a declared project or an approved project,
means the area of land designated by Order under clause 95,
as varied under clause 96 or consolidated by Order under
clause 97;
Project Minister means a Minister appointed under clause 14.
It is intended that the Project Minister will be appointed by the
Premier and will oversee the delivery of the approved project;
project proponent, for a declared project, means the entity
appointed under clause 15. Clause 15 provides that the Project
Minister must appoint a public authority as the project
proponent for a declared project. The role of project proponent
under the Bill is restricted to public authorities;
12
scoping directions means directions prepared by the Planning
Minister under clause 22 or clause 30. The purpose of the
scoping directions is to set out the kinds of impacts and other
matters that must be addressed in an impact management plan
or comprehensive impact statement for a declared project;
stratum of land means a part of land consisting of a space of
any shape, below on or above the surface of the land, or partly
below and partly above the surface of the land, all the
dimensions of which are limited. The purpose of a specific
definition of a stratum of land is to allow for a separate regime
for the acquisition of a stratum of land below ground level
under Division 6 of Part 6;
transport project means a project for the development of
transport infrastructure or transport infrastructure together with
non-transport infrastructure. The intent of permitting a
transport project to consist of more than transport infrastructure
is to ensure that potential economies of scope and scale are not
precluded.
It is foreseeable that the combined cost of constructing transport
infrastructure and co-located or connected buildings can be
substantially lower when combined and undertaken at the same
time as part of the same project rather than being undertaken
separately.
For example, commercial development over or in connection to
a major passenger rail terminal may be undertaken far more
efficiently if combined with substantial changes to the scope
and function of the rail passenger terminal.
Clause 4 defines an application fee as either a fee prescribed in the
regulations or the sum of all fees otherwise payable on
application for or on the granting of an applicable approval
under an applicable law, other than the fee payable for an
application for a works approval under the Environment
Protection Act 1970.
Regulations may be used to specify a fee that is more reflective
of the cost of administration of the relevant prescribed impact
assessment processes. If regulations are made, this is to be the
fee paid by project proponents.
An application fee is paid to the Planning Minister on
submission of a completed impact management plan (clause 29)
or a completed comprehensive impact statement (clause 41).
13
Clause 5 sets out the types of information that are required to be provided
in the document that contains the project proposal.
Clause 5 provides that a project proposal contains--
· a description of the declared project;
· designs prepared for the declared project;
· a description of the proposed project area;
· a description of the existing environment that may
impact by the development and operation of the
declared project;
· any applicable approvals or assessments under an
applicable law that are likely to be required before the
development for the declared project can commence;
· if relevant, any alternative options for the declared
project that have been considered in the development of
the declared project before it was declared to be a
declared project;
· an outline of studies conducted in relation to the
declared project and the study of findings;
· an outline of any consultation that has been undertaken
and the results of that consultation;
· if relevant, a draft program for further consultation or
studies in relation to an aspect of the declared project;
· if more than one project option is being considered for
the purposes of the declared project, all of the matters
specified in paragraphs (a) to (i) of this clause 5 for each
option.
The onus is on the project proponent to include sufficient
information in the project proposal to enable the Planning
Minister under clause 20 to make a determination on the impact
assessment process that will be applied and to determine and
specify scoping directions under clause 22 or 30.
Clause 6 provides that the Project Minister may appoint an entity who is
not the project proponent to be the project authority of an
approved project.
14
Clause 7 provides that the Project Minister may designate a person to be
a project contractor if that person has entered into an agreement
for the development of part of an approved project on behalf of
the project authority.
Clause 8 clarifies that the terms "land" and "Crown land" as used in the
Bill have the same meaning as they have under the Crown
Land (Reserves) Act 1978.
Clause 9 provides that the Bill binds the Crown in the right of Victoria
and in all its other capacities.
PART 2--MAJOR TRANSPORT PROJECT DECLARATIONS
Part 2 sets out the process by which a project may be declared. Apart from
being declared as a project to which the Bill applies other than Parts 3 and 8,
a declared project is eligible to access and utilise one of the impact
assessment processes provided in the Bill as a means of gaining project
approvals. Once a declared project has been approved, subject to the
designation of the project area under Part 4 it will also have access to project
delivery powers specified in Parts 5, 6 and 7 of the Bill. This Part sets out
the matters that must be taken into account in making a declaration.
Clause 10 provides that the Governor in Council, on the recommendation
of the Premier, may declare a transport project to be a declared
project. The declaration may either be that the entire Bill apply
to the project or that only the project delivery powers (that is,
other than Parts 3 and 8 of the Bill) apply.
Subclause (2) provides that a declaration made by the Governor
in Council under subclause (1) must be published in the
Government Gazette.
Subclause (3) provides that a declaration made under subclause
(1) takes effect on the day it is published in the Government
Gazette, as required under subclause (2), or on a later day as
specified.
Clause 11 provides that the Premier must consult with the Planning
Minister before making a recommendation under clause 10,
which provides for the declaration of a transport project as a
declared project.
The Premier is required to consult with the Planning Minister
because the Planning Minister is responsible for administering
the process for assessing and approving declared projects under
Part 3.
15
Clause 12 requires the Premier to make an assessment of a transport
project before making a recommendation to the
Governor in Council under clause 10.
Subclause (1) provides that the Premier must not make a
recommendation unless the Premier has assessed the transport
project as a project of economic, social or environmental
significance to the State or a region of the State.
Subclause (2) provides that the Premier must have regard to the
project declaration guidelines (prepared under clause 13) in
making this assessment.
It is intended that only transport projects that are of significance
to the State or a region of the State due to economic, social
or environmental reasons will be eligible to be declared.
Such projects are likely to be urgently required, complex and
expected to generate significant net benefits for the Victorian
community.
Clause 13 requires the Premier to prepare guidelines (project declaration
guidelines) for the assessment of transport projects as to
whether the projects are of economic, social or environmental
significance to the State or a region of the State.
Subclause (2) provides that the project declaration guidelines
must be published in the Government Gazette.
Subclause (3) provides that the project declaration guidelines
will take effect on the day that they are published in the
Government Gazette, as required under subclause (2), or on a
later day as specified.
The purpose of the project declaration guidelines is to guide the
Premier's decision as to whether a transport project should be
declared. The project declaration guidelines are also intended
to set out in greater detail the types of factors and considerations
that the Premier must have regard to.
Clause 14 provides that the Premier must appoint a Minister to be the
Project Minister for a declared project. The appointment must
be by way of a notice published in the Government Gazette.
The Project Minister will be responsible for overseeing the
delivery of the declared project once it is approved.
16
Clause 15 requires that the Project Minister appoint a public authority
(as that term is defined under the Bill) to be the project
proponent for a declared project. Notice of the appointment
must be published in the Government Gazette.
Subclause (2) clarifies that the Project Minister may replace
the public authority appointed as the project proponent under
subclause (1) with another public authority by notice published
in the Government Gazette.
The role of project proponent under the Bill is restricted to
public authorities. This is not intended to prevent the
involvement of other parties such as privately-owned
corporations in the delivery of major transport projects, such as
through a Private-Public Partnership (PPP) arrangement, but the
project proponent role itself is restricted to public authorities.
PART 3--ASSESSMENT AND APPROVAL OF MAJOR
TRANSPORT PROJECTS
Part 3 of the Bill sets out the process for the assessment and approval of
projects declared to be declared projects under Part 2.
· Division 1 provides for the preparation of guidelines to guide decision
making in the assessment and approval process.
· Division 2 requires the project proponent to prepare a project proposal
for a declared project.
· Division 3 provides the process for the Planning Minister to determine
whether an impact assessment is required to be conducted for the
declared project and, if so, whether an impact management plan or
comprehensive impact statement is the appropriate method of impact
assessment.
· Division 4 sets out the requirements for the impact management plan
assessment process, with Subdivision 1 relating to the preparation of
scoping directions and Subdivision 2 to the preparation of impact
management plans, up to the submission of a completed impact
management plan to the Planning Minister.
· Division 5 contains a number of Subdivisions that step out the
comprehensive impact statement assessment process. Subdivision 1
provides for the setting of scoping directions, including the potential
for the scoping directions to be publicly exhibited in exceptional
circumstances.
17
The other phases of the comprehensive impact statement assessment
process are the establishment of the assessment committee
(Subdivision 2), preparation of the comprehensive impact statement
(Subdivision 3), public exhibition and preliminary hearings
(Subdivision 4), refinement of the comprehensive impact statement
and options for the declared project (Subdivision 5), formal public
hearings (Subdivision 6) and assessment committee recommendations
(Subdivision 8). Subdivision 7 provides that in exception
circumstances the Planning Minister, on recommendation of the
assessment committee, may direct a supplementary assessment to be
undertaken.
· Division 6 relates to the interaction of the comprehensive impact
statement assessment process with the Aboriginal Heritage Act
2006.
· Division 7 provides the process for the Planning Minister to make, and
give effect to, an approval decision in relation to the impact
management plan or comprehensive impact statement.
· Division 8 sets out the process for obtaining and granting a variation
to an approval decision. Division 9 provides for other matters.
Division 1--Guidelines for this Part
Clause 16 provides that the Planning Minister must prepare a set of
guidelines about the required form and content of a project
proposal.
Subclause (2) provides that the project proposal guidelines must
be published by the Planning Minister on the Department's
Internet site as soon as practicable after they have been prepared
by the Planning Minister.
Subclause (3) provides that notice of the publication of the
guidelines must be published in the Government Gazette as
soon as practicable after they have been prepared by the
Planning Minister.
Subclause (4) provides that the guidelines will take effect on the
day that notice of the publication is published in the
Government Gazette or a later day as specified.
The intention of the project proposal guidelines is to provide
detailed guidance to project proponents about the type of
information that the Planning Minister will require to be
provided in the project proposal document. This is to enable the
Planning Minister to make a decision about whether and, if so,
what type of impact assessment should be conducted in relation
to a declared project.
18
Clause 17 provides that the Planning Minister may prepare guidelines
relating to the assessment of impacts of a declared project, the
form and content of a comprehensive impact statement or
impact management plan for a declared project, and the form
and content of public notices required under Part 3.
Subclause (2) provides that the project proposal guidelines must
be published by the Planning Minister on the Department's
Internet site as soon as practicable after they have been prepared
by the Planning Minister.
Subclause (3) provides that notice of the preparation of the
guidelines must be published in the Government Gazette as
soon as practicable after they have been prepared by the
Planning Minister.
Subclause (4) provides that the guidelines will take effect on
the day that notice of the preparation is published in the
Government Gazette or a later day as specified.
The guidelines are intended to provide further detail and
information about aspects of the Part 3 process in order to
provide greater certainty and transparency to project proponents
and the community about how impact assessment is required to
be undertaken under the Bill. Guidance about the assessment of
impacts of a declared project may include the types and
methods of assessment that are considered appropriate for
assessing various impacts. Guidance about the form and
content of a comprehensive impact statement or impact
management plan may include details as to the preferred format
or presentation of those documents, as well as specific issues or
impacts to be considered. It is anticipated that the impact
assessment guidelines will contain specific requirements
relating to the form and content of public notices, such as the
words to be used and the format of the notices.
Clause 18 provides that the Planning Minister may prepare guidelines
relating to the publication fee to be paid by a person for a copy
of a comprehensive impact statement under clause 49.
Subclause (2) provides that these guidelines may provide for a
methodology for determining an appropriate fee.
Subclause (3) provides that the fee guidelines must be published
on the Department's Internet site as soon as practicable after
they have been prepared by the Planning Minister.
19
Subclause (4) provides that notice of the preparation of the
fee guidelines must be published in the Government Gazette
as soon as practicable after they have been prepared by the
Planning Minister.
Subclause (5) provides that the fee guidelines will take effect on
the day that notice of the preparation is published in the
Government Gazette or a later day as specified.
Although it is intended that the fee set using the methodology
referred to in subclause (2) will reflect the cost of publishing the
comprehensive impact statement to some extent, it is of greater
importance that copies are made available to the community at a
cost that is considered to be affordable.
Division 2--Project proposals
Clause 19 provides that a project proponent must prepare a project
proposal for a declared project.
Subclause (2) requires that the project proposal must be
prepared in accordance with the project proposal guidelines.
Subclause (3) clarifies that, in addition to the information
provided for in the project proposal guidelines, a project
proponent may include any matter that it considers relevant in
a project proposal.
Subclause (4) provides that the project proponent must give a
completed project proposal to the Planning Minister.
The project proposal is a document provided by the project
proponent to the Planning Minister to enable the Minister to
make a decision about whether and, if so, what type of impact
assessment should be conducted in relation to a declared
project. The contents of the project proposal document will be
guided by the project proposal guidelines provided for under
clause 16.
The project proposal document will also form the basis upon
which the Planning Minister will set the scoping directions for
the declared project. The breadth of the scoping directions will
determine the issues and matters that are required to be
addressed in either the impact management plan or the
comprehensive impact statement.
20
Division 3--Determination of appropriate impact assessment
process
Clause 20 sets out the process by which the Planning Minister must
determine which impact assessment method will apply to the
declared project (if Part 3 applies to the declared project).
Subclause (1) provides that, on receipt of the project proposal,
the Minister must make a determination as to whether a
declared project should be subject to a comprehensive impact
statement assessment process or an impact management plan
assessment process under Part 3.
Subclause (2) provides that the Planning Minister must require
a comprehensive impact statement to be prepared for the
declared project if the Minister considers that a project proposal
is inadequate. This enables the Minister to determine whether
an impact management plan process must be complied with for
a declared project.
This subclause indicates that the onus is on the project
proponent to provide all available and relevant information
about the project to the Planning Minister. Providing all
available and relevant information enables the Minister to make
an informed decision about the impact assessment process that
is to be applied. The project proponent can seek to have the
declared project assessed by way of an impact management
plan. However if the project proponent fails to demonstrate
through the information provided that the pre-requisites are
satisfied then the project proponent will be required to
undertake the more onerous and longer comprehensive impact
statement assessment process.
Subclause (3) sets out the circumstances that the Planning
Minister must be satisfied of before making a determination
requiring the project proponent to comply with the impact
management plan assessment process. There are two
requirements that must be met. The land required for the
declared project must be either land owned by a public authority
or vested in the Crown, or land owned by a person that is not a
public authority but is reserved for a public purpose under a
planning scheme or other law. In addition, the development of
the declared project must not require, or have already been
granted, any of the following approvals--
· a works approval under the Environment Protection
Act 1970;
· a permit or consent under the Heritage Act 1995;
21
· a planning permit under the Planning and
Environment Act 1987; or
· a planning scheme amendment under the Planning and
Environment Act 1987.
Subclause (4) requires the Planning Minister to make a
determination within 10 business days of the receipt of the
project proposal from the project proponent.
Subclause (5) requires the Planning Minister to notify the
project proponent of his or her determination.
Subclause (6) requires notice of the making of a determination
to be published in the Government Gazette as soon as
practicable after the determination has been made.
Clause 21 prescribes the effect of a determination under clause 20.
Subclause (1) provides that if the Planning Minister makes an
impact management plan determination, and therefore the
declared project is required to be assessed using the impact
management plan assessment process, Division 4 of Part 3 will
apply to the declared project.
Subclause (2) provides that if the Planning Minister makes a
comprehensive impact statement determination, and therefore
the declared project is required to be assessed using the
comprehensive impact statement process, Division 5 of Part 3
will apply to the declared project.
Division 4--Impact management plans
Subdivision 1--Scoping directions
Clause 22 provides that the Planning Minister must prepare scoping
directions for the declared project that set out the types of
impacts and other matters that must be considered and
addressed in an impact management plan for the declared
project.
Subclause (2) provides that, subject to any extension of time
under clause 24 resulting from a request for further information
in exceptional circumstances, the Planning Minister must
prepare the scoping directions and give them to the project
proponent within 25 business days after making an impact
management plan determination.
22
Subclause (3) provides that the scoping directions must be
published in the Government Gazette as soon as practicable
after they are prepared.
The scoping directions document is intended to provide an
exhaustive list of the matters that the project proponent is
required to address in an impact management plan.
As indicated above in relation to clause 19, the level of
specificity at which the scoping directions can be set will be
determined by the information provided in the project proposal.
Clause 23 provides that the Planning Minister may request further
information from the project proponent for the purpose of
preparing the scoping directions for the impact management
plan.
Subclause (2) provides that the Planning Minister may only
make a request for further information under subclause (1)
before the end of the period under subclause 22(2) within which
the Minister must prepare the scoping directions. This time
period is 25 business days after making an impact management
determination.
Subclause (3) provides that the Planning Minister may request
further information under subclause (1) only if the Minister
considers that exceptional circumstances exist such that it is
necessary to request that further information.
This test of "exceptional circumstances" sets a deliberately high
threshold (informed by relevant case law on the term) for when
further information will be required, and it is expected that this
test not be met in the majority of cases.
Subclause (4) states that a notice under subclause (1) must
specify the further information that is to be provided by the
project proponent. This ensures that the proponent is aware of
what particular information the Planning Minister requires to be
provided.
Clause 24 provides that the period of time specified in subclause 22(2),
which is the time within which the Planning Minister must
prepare the scoping directions, is not to be taken to include any
business day that falls within a certain period. This period
commences on the day that notice is given to a project
proponent under clause 23, which is a notice requesting further
information, and ends on the day that the Planning Minister
receives the information specified in the notice.
23
Subdivision 2--Preparation of impact management plans
Clause 25 provides that the Planning Minister may direct the project
proponent of a declared project to consult with certain specified
persons for the purpose of preparing an impact management
plan.
Subclause (2) provides that a direction made under subclause
(1) must be given to the project proponent and published in the
Government Gazette within 25 business days after the making
of the impact management plan determination in relation to the
declared project.
Subclause (3) provides that the project proponent must comply
with a direction by the Planning Minister to consult with
specified persons under subclause (1).
This process has the advantage of allowing the project
proponent to obtain input and feedback from stakeholders.
Clause 26 provides that the project proponent for a declared project in
relation to which an impact management plan determination has
been made must comply with Division 4.
Clause 27 sets requirements that an impact management plan for a
declared project must meet.
Paragraph (a) requires that the scoping directions for the impact
management plan must be complied with.
Paragraphs (b) and (d) require an assessment of the impacts of
the declared project and details of the methods considered to
avoid, minimise, manage or offset these impacts.
The term impacts is defined in the Bill as including impacts that
are reasonably foreseeable, direct or indirect, and that result
from the development, use or decommissioning phases of the
declared project.
Paragraphs (c) and (e) require information to be provided in
relation to the options for the development of the declared
project that have been considered, the impacts of those options,
the preferred option and the reasons why that option is
preferred.
Paragraph (f) requires the impact management plan to set out
how any relevant State environment protection policy or waste
management policy will be observed. This subclause is
intended to require the proponent to provide consideration of
the requirements of these policies at an early stage in the project
assessment process.
24
Paragraph (g) requires the project proponent to identify and list
in the impact management plan all of the applicable approvals
that will be required under all applicable laws for the
development of the declared project.
Paragraph (h) requires the project proponent to also list the
information required for the relevant applicable law decisions to
be made, including a list of all of the mandatory and
discretionary applicable law criteria and information as to how
these criteria apply.
This information is required to be provided to assist Planning
Minister in making an approval decision to grant a particular
applicable approval.
Clause 28 provides that a project proponent must have regard to any
impact assessment guidelines that have been prepared when
preparing an impact management plan for the declared project.
As guidelines, the matters in the impact assessment guidelines
are not mandatory requirements. However, the guidelines
indicate the types of information that the Planning Minister will
take into consideration in assessing and approving a declared
project.
Clause 29 provides that on completing an impact management plan for a
declared project, the project proponent must submit the impact
management plan to the Planning Minister for approval and pay
the application fee to the Planning Minister.
Division 5--Comprehensive impact statements
Subdivision 1--Scoping directions
Clause 30 provides that the Planning Minister must prepare scoping
directions for the declared project that set out the types of
impacts and other matters that must be considered and
addressed in a comprehensive impact statement for the declared
project.
Subclause (2) provides that, subject to any extension of time
under this Subdivision resulting from a request for further
information or invitation for public comment or submissions in
exceptional circumstances, the Planning Minister must prepare
the scoping directions and give them to the project proponent
within 25 business days after making a comprehensive impact
statement determination.
25
Subclause (3) provides that the scoping directions must be
published in the Government Gazette as soon as practicable
after they are prepared.
The scoping directions document is intended to provide an
exhaustive list of the matters that the project proponent is
required to address in a comprehensive impact statement.
As indicated above in relation to clause 19, the level of
specificity at which the scoping directions can be set will be
determined by the information provided in the project proposal.
Clause 31 provides that the Planning Minister may, before the end of the
25 business day period specified in clause 30, request further
information or invite public submissions or comment in relation
to the scoping directions for the comprehensive impact
statement in exceptional circumstances.
Subclause (1)(a) provides that the Planning Minister may
provide written notice to the project proponent requesting
further information for the purpose of preparing the scoping
directions for the comprehensive impact statement for the
declared project.
Subclause (1)(b) provides that the Planning Minister may,
within 15 business days after making a comprehensive impact
statement determination, invite the public to make written
comment on or make written submissions in respect of a draft of
the scoping directions. Comments and submissions must be
invited by notice published in a newspaper circulating generally
throughout Victoria and on the Department's Internet site, and
must be made within 15 business days after the date of the
notice.
Subclause (2) provides that a notice under subclause (1)(a), in
relation to a request for further information, must specify the
further information that is to be provided by the project
proponent. This ensures that the proponent is aware of the
particular information that the Planning Minister requires to be
provided.
Subclause (3) provides that if a notice is published under
subclause (1)(b) inviting written submissions or comment on
the scoping directions from the public, the Planning Minister
must publish a draft of the scoping directions on the
Department's Internet site.
Subclause (4)(a) provides that the Planning Minister may
request further information from the project proponent under
subclause (1)(a) only if the Minister considers that there are
26
exceptional circumstances such that the Minister considers it
necessary to request the further information.
Subclause (4)(b) provides that the Planning Minister may invite
comments and submissions from the public under subclause
(1)(b) in either of the following two situations. Under subclause
(4)(b)(i) if the Minister considers that there are exceptional
circumstances such that the Minister considers it necessary to
seek those comments and submissions, or under subclause
(4)(b)(ii) if the comprehensive impact statement assessment
process is a process to which section 29 of the Environment
Protection and Biodiversity Conservation Act 1999 of the
Commonwealth applies.
In relation to subclause (4)(b)(i), it is intended that the same test
of "exceptional circumstances" will apply as under clause 23.
That is, the test of "exceptional circumstances" sets a
deliberately high threshold and it is expected that this test not be
met in the majority of cases.
In relation to subclause (4)(b)(ii), section 29 of Environment
Protection and Biodiversity Conservation Act 1999 of the
Commonwealth relates to actions for which a bilateral
agreement covering the action is in place between the
Commonwealth and the State such that the action does not
require approval under Part 9 of that Act. This provision has
been inserted in the Bill in anticipation of a bilateral agreement
being signed between the Commonwealth and the State of
Victoria in relation to the accreditation of the approvals process
under the Bill for the purposes of the Commonwealth Act.
Subclause (5) provides that when preparing the scoping
directions, the Planning Minister must consider every comment
or submission received by the Minister in response to an
invitation under subclause (1)(b) within the period of time
stated, which is 15 business days.
Clause 32 provides that the period of time specified in subclause 30(2),
which is the time within which the Planning Minister must
prepare the scoping directions, is not to be taken to include any
business day that falls within a certain period. This period
commences on the day that notice is given to a project
proponent under subclause 31(1)(a), which is a notice
requesting further information, and ends on the day that the
Planning Minister receives the information requested in the
notice.
27
Clause 33 applies if the Planning Minister invites comments and
submissions from the public in relation to a set of draft scoping
directions under a notice published in accordance with
subclause 31(1)(b).
Subclause (2) provides that, despite subclause 30(2), which
provides that the Planning Minister must prepare and give the
project proponent the scoping directions within 25 business
days after making a comprehensive impact statement
determination, the Planning Minister must prepare the scoping
directions within 15 business days after the last day of the
period stated in the notice published in accordance with
subclause 31(1)(b).
Clause 34 provides that the Planning Minister may amend scoping
directions for a comprehensive impact statement for a declared
project if the Minister considers that there are exceptional
circumstances that require the amendment.
It is intended that the same test of "exceptional circumstances"
will apply as under clause 23. The test of "exceptional
circumstances" sets a deliberately high threshold, and it is
expected that this threshold is unlikely to be met in the majority
of cases.
Circumstances in which it is envisaged that a variation to the
scoping directions under clause 34 may be available include
where a variation to an approval decision is sought under
clause 89. The Planning Minister determines under clause 90
that, to enable the variation to be assessed, the scoping
directions must be amended and a comprehensive impact
statement prepared based on the amended scoping directions.
Subclause (2) provides that an amendment to the scoping
directions must be given to the project proponent.
Subclause (3) provides that notice of an amendment to the
scoping directions must be published in the Government
Gazette as soon as practicable after the amendment is made.
Subclause (4) provides that the amended scoping directions
must be published on the Department's Internet site as soon as
practicable after being amended.
Subdivision 2--Assessment committees
Clause 35 provides in paragraph (a) that, after publishing the scoping
directions for a comprehensive impact statement for a declared
project, the Planning Minister must establish an assessment
committee in accordance with Part 8 to assess the
28
comprehensive impact statement. Paragraph (b) provides that
the Planning Minister must give the assessment committee the
terms of reference under which it will assess the comprehensive
impact statement in accordance with Division 5 of Part 3.
It is intended that clause 35 be read in conjunction with Part 8,
which sets out the processes and procedure for the assessment
committee.
Clause 36 provides that the terms of reference given to an assessment
committee by the Planning Minister under clause 351(b) may
include directions to the assessment committee on certain
matters.
Subclause (1)(a) provides for a direction to be given to conduct
a preliminary hearing in a particular way. Such a direction
could include, for example, that submissions be made in writing
rather than orally.
Subclause (1)(b) provides for a direction to be given as to the
matters which the assessment committee is to consider as part
of its terms of reference.
Subclause (1)(c) provides for a direction to be given as to the
conduct of cross-examination, if permitted. It is anticipated that
in some cases the assessment committee may determine that
cross-examination is not permitted, or may require cross-
examination to be conducted in a specified or restricted way.
Subclause (1)(d) provides for a direction to be given as to who
may make submissions at the hearing. This provision is
intended to apply particularly to preliminary hearings where, as
submissions are intended to be in summary form and to provide
clarification only, it may be determined that it is only necessary
for certain submitters to make submissions at the preliminary
hearing.
Subclause (1)(e) allows the Planning Minister to make a
direction on any other matter that the Planning Minister thinks
is fit for the purpose of the Bill.
Subclause (2) provides that the matters listed in subclause (1)
do not limit what may be included in the terms of reference
given to an assessment committee.
Clause 37 provides that the Planning Minister must publish the terms of
reference given to the assessment committee under clause
351(b) in the Government Gazette and on the Department's
Internet site. This must occur on the same day, or before the
day, that a comprehensive impact statement is exhibited under
Subdivision 4.
29
Subdivision 3--Preparation of comprehensive impact statements
Clause 38 provides that a project proponent for a declared project in
relation to which a comprehensive impact statement
determination has been made must comply with this Division.
Clause 39 provides that a project proponent for a declared project must
prepare a comprehensive impact statement for the project that
meets the requirements listed in paragraphs (a) to (i).
Paragraph (a) requires that the scoping directions for the
comprehensive impact statement must be complied with.
Paragraphs (b) and (d) require an assessment of the impacts of
the declared project and details of the methods considered to
avoid, minimise, manage or offset these impacts. The term
impact is defined in the Bill as including impacts that are
reasonably foreseeable, direct or indirect, and that result from
the development, use or decommissioning phases of the
declared project.
Paragraphs (c) and (e) require information to be provided in
relation to the options for the development of the declared
project that have been considered, the impacts of those options,
the preferred option and the reasons why that option is
preferred.
Paragraph (f) requires the comprehensive impact statement to
set out how any relevant State environment protection policy or
waste management policy will be observed. This subclause is
intended to require the proponent to provide consideration of
the requirements of these policies at an early stage in the
process of assessing the declared project.
Paragraph (g) requires the project proponent to identify and list
in the comprehensive impact statement all of the applicable
approvals that will be required under all applicable laws for the
development of the declared project. Paragraph (h) requires
the project proponent to also list the information required for
the relevant applicable law decisions to be made, including a
list of all of the mandatory and discretionary applicable law
criteria and information as to how these criteria apply.
This information is required to be provided to assist the
assessment committee in making an assessment committee
recommendation and the Planning Minister in making an
approval decision to grant a particular applicable approval.
30
Paragraph (i) provides for the case where one of the applicable
approvals required for the declared project is an amendment to
a provision of a planning scheme. In this case, the
comprehensive impact statement must identify every planning
scheme that applies to the location or proposed location of the
declared project (subparagraph (i)), contain the proposed
amendments to every provision of every planning scheme that
will be required (subparagraph (ii)) and contain an explanatory
report for every proposed amendment and any document to be
applied, adopted or incorporated in any such amendment
(subparagraph (iii)).
The requirements of paragraph (i) are intended to reflect the
information required to be prepared by a planning authority in
relation to a planning scheme amendment under section 17 of
the Planning and Environment Act 1987.
Clause 40 provides that a project proponent must have regard to any
impact assessment guidelines that have been prepared when
preparing a comprehensive impact statement for the declared
project.
Clause 41 provides that on completing a comprehensive impact statement
for a declared project, the project proponent must submit the
comprehensive impact statement to the Planning Minister for
review under clause 42 and pay the application fee to the
Planning Minister.
Subclause (2) provides that the project proponent must give the
Minister at least 20 business days of written notice of its
intention to submit the comprehensive impact statement.
The requirement of the project proponent to provide advance
notice is intended to allow the Planning Minister adequate time
to prepare for the submission of the comprehensive impact
statement and to put in place appropriate arrangements with the
assessment committee.
Clause 42 provides that the Planning Minister must make a written review
determination as to whether the comprehensive impact
statement can be released for public exhibition. The Planning
Minister must make a review determination within 20 business
days after receiving a comprehensive impact statement.
Subclause (2) provides that the Planning Minister may
determine that a comprehensive impact statement may be
released for public exhibition only if satisfied that it is adequate
to be released for that purpose.
31
Subclause (3) provides that to be satisfied that a comprehensive
statement is adequate to be released for public exhibition, the
Minister must be satisfied that it meets the requirements of
clause 39, which sets out the required contents of
comprehensive impact statements.
Subclause (4) provides that for the purpose of determining
whether a comprehensive impact statement meets the
requirements set out in clause 39(f), (g) and (h), the Planning
Minister may consult with specified persons. Clause 39(f), (g)
and (h) relate to requirements to--
· identify how any State environment protection policy or
waste management policy that applies to the declared
project will be observed,
· identify all of the applicable approvals required for the
declared project to be developed, and
· provide information required for applicable law
decisions to be made including a list of the relevant
mandatory and discretionary applicable law criteria.
Subclause (4)(a) provides that the Planning Minister may
consult with any applicable law decision maker empowered to
grant an applicable approval necessary for the declared project
and to which the comprehensive impact statement relates.
Subclause (4)(b) provides that the Planning Minister may
consult with any other person who the Minister considers has
the necessary experience or training to advise the Minister in
respect of matters that the Minister must consider in making a
review determination.
Subclause (5) provides that the Planning Minister in a review
determination may direct the proponent to revise an assessment
or the presentation of an assessment or finding contained in the
comprehensive impact statement if the Minister is of the view
that it is not adequate to be released for public exhibition.
This subclause has been intentionally limited to the Planning
Minister directing the project proponent to revise an assessment
or the presentation of an assessment or finding. It is intended
that this provision will allow the Planning Minister to direct that
the presentation of aspects of a comprehensive impact statement
be revised if they are, for example, confusing or potentially
incomprehensible to the public. It is not intended to allow the
Planning Minister to direct a project proponent to review a
finding, as this would be contrary to the intention of the Bill to
maintain standards set under existing laws.
32
Subclause (6) provides that a review determination must be
given to the project proponent and published on the
Department's Internet site.
Subclause (7) provides that notice of the making of a review
determination must be published in the Government Gazette.
Clause 43 provides that on receiving a review determination that directs
revisions to an assessment or the presentation of an assessment
or finding contained in the comprehensive impact statement,
the project proponent must revise the comprehensive impact
statement in accordance with the review determination and
submit the revised statement for review in accordance with
clause 42.
It is intended that a project proponent will be required to
comply with any changes required to the comprehensive impact
statement by the Planning Minister in a review determination.
Subclause (2) provides that a comprehensive impact statement
that is revised in accordance with a review determination is
taken for the purposes of Subdivision 3 to be a comprehensive
impact statement prepared in accordance with clause 38.
Subclause (3) provides that subclause (1) is not to be interpreted
as precluding more than one revised comprehensive impact
statement being submitted for review under clause 42.
This provision is intended to provide clarification for situations
such as where the Planning Minister requires more than one
round of revisions to be made to the comprehensive impact
statement.
Subdivision 4--Public exhibition of comprehensive impact
statements
Clause 44 provides that Subdivision 4 applies if the Planning Minister in a
review determination determines that a comprehensive impact
statement is adequate to be released for public exhibition.
Clause 45 provides that the Planning Minister must determine that the
comprehensive impact statement must be made publicly
available in accordance with Subdivision 4.
Subclause (2) provides that the period determined by the
Planning Minister for the public exhibition of the
comprehensive impact statement must commence on the day
that notice of public exhibition of the comprehensive impact
statement is published under clause 47, and must be not less
than 20 business days and not more than 30 business days.
33
Subclause (3) provides that a determination under clause 45 of
the time period for public exhibition must be published on the
Department's Internet site on the same day as the review
determination that determines that the comprehensive impact
statement can be released for public exhibition under
Subdivision 4 is published on the Department's Internet site
under clause 42.
Subclause (4) provides that notice of a determination under
clause 45 of the time period for public exhibition must be
published in the Government Gazette on the same day as the
review determination that determines that the comprehensive
impact statement can be released for public exhibition under
Subdivision 4 is published in the Government Gazette under
clause 42.
Clause 46 provides that the project proponent must make the
comprehensive impact statement publicly available in
accordance with Subdivision 4 for the duration of the public
exhibition period determined under clause 45 and must give the
assessment committee established to assess the comprehensive
impact statement a copy of the comprehensive impact
statement.
Clause 47 sets out the specific measures that the project proponent is
required to undertake to notify the public exhibition of the
comprehensive impact statement.
Subclause (1)(a) provides that the project proponent must
publish notice of the comprehensive impact statement--
· in a newspaper circulating generally throughout
Victoria;
· in at least one newspaper circulating in the area where
the declared project to which the statement relates will
be develope; and
· on the project proponent's Internet site.
These notification requirements are intended to provide notice
of the comprehensive impact statement to the general public.
Subclause (1)(b) requires the project proponent to give a copy
of the notice of public exhibition of the comprehensive impact
statement to--
34
· the Planning Minister;
· the owners and occupiers of land that are or will be
materially affected by the declared project; and
· all road authorities and infrastructure managers that are
or will be materially affected by the declared project.
The requirement to give notice under subclause (1)(b)(iii) is
intended to give effect to a similar requirement to give notice to
owners and occupiers of land to that under section 19 of the
Planning and Environment Act 1987.
Subclause (2) provides that, on receiving a copy of the notice of
public exhibition of the comprehensive impact statement, the
Planning Minister must publish the notice on the Department's
Internet site.
Clause 48 sets out the detailed requirements that a public notice of a
comprehensive impact statement under clause 47 must include.
These requirements are--
· the name of the project proponent; and
· information about the scope of the declared project; and
· the places where the comprehensive impact statement
may be inspected by the public; and
· invite submissions on the comprehensive impact
statement during the public exhibition period; and
· that submissions must be made to the assessment
committee established to assess the comprehensive
impact statement; and
· state the last date by which submissions must be made
to the assessment committee; and
· give an explanation as to how a submissions in relation
to the comprehensive impact statement must be made;
and
· state an address to which submissions to the assessment
committee established to assess the comprehensive
impact statement are to be sent; and
· be in accordance with any impact assessment
guidelines.
35
Clause 49 lists the actions that the project proponent must take to make the
comprehensive impact statement publicly available during the
public exhibition period.
The project proponent must, during the public exhibition period,
publish the comprehensive impact statement on its Internet site
and give the comprehensive impact statement to the Secretary.
Subclause (1)(c) provides that the project proponent must make
copies of the comprehensive impact statement available to the
public for inspection free of charge during business hours at the
proponent's place of business and any offices of the proponent
in the region of the State where the declared project is proposed
to be developed.
Subclause (1)(d) provides that the project proponent must use
reasonable endeavours to cause copies of the comprehensive
impact statement to be made available to the public for
inspection at public places free of charge during business hours.
The term public places is defined in subclause (6) as including
the offices or libraries of the Councils whose municipal districts
are within the region of the State where the declared project is
proposed to be developed and a place that is determined by the
Secretary.
This list of public places is not intended to be exhaustive.
The broader definition of the term public places is intended be
flexible to allow for arrangements to be made depending on the
types of public places that are available in the region where a
particular declared project is to be developed.
Subclause (2) requires the project proponent to provide a copy
of the comprehensive impact statement to an owner of land
whose land will be materially affected by the development of
the declared project to which the development relates if the
owner requests a copy.
Subclause (3) provides that a copy of the comprehensive impact
statement must be given under subclause (2) free of charge.
It is intended that owners of land whose land will be materially
affected by a declared project are a special category of persons
who will be provided with a free copy of a comprehensive
impact statement on request. This is appropriate, given that
copies of the comprehensive impact statement will also be
available to all people on the project proponent's Internet site or
on payment of the relevant fee in subclause (4).
36
Subclause (4) provides that, on payment of a relevant fee, a
person other than an owner of land that is or will be materially
affected by the development of the declared project may be
given a copy of the comprehensive impact statement.
Relevant fee is defined in subclause (6) as the fee determined
by the project proponent in accordance with the publication fee
guidelines.
Although it is intended that the fee set using the methodology in
the publication fee guidelines will reflect the cost of publishing
the comprehensive impact statement on a cost-recovery basis to
some extent, it is considered to be of greater importance that
copies are made available to the community at a cost that is
considered to be affordable.
Subclause (5) requires the Secretary, on receiving a
comprehensive impact statement under subclause (1)(b), to
publish the comprehensive impact statement on the
Department's Internet site.
Clause 50 provides that, as soon as practicable after receiving a notice
under subclause 47(1)(b)(i) of the public exhibition of the
comprehensive impact statement from the project proponent,
the Planning Minister must notify in writing every applicable
law decision maker referred to in the comprehensive impact
statement of the public exhibition of the statement.
Subclause (b) provides that the Planning Minister must also
notify the applicable law decision makers that they may provide
advice in accordance with clause 65 or may be required to
provide advice to the assessment committee under
clause 245(2).
The intention of subclause (b) is to provide advance notice to
applicable law decision makers that they may choose or be
called on by the assessment committee to provide advice, to
enable them to make appropriate preparations and undertake
necessary investigations.
An applicable law decision maker may choose to give advice
under clause 65. Clause 65 provides that an applicable law
decision maker may give an assessment committee advice as to
whether relevant parts of a comprehensive impact assessment
adequately address the applicable law criteria for the granting of
the applicable approvals that it grants under an applicable law
and, if so, the kinds of conditions or restrictions it may impose
on these kinds of approvals.
37
An applicable law decision maker will be required to give
advice under clause 245(2) if requested by an assessment
committee. Clause 245(2) sets out that, as part of the general
procedure for hearing submissions, an assessment committee
may require--
· a person to produce documents relating to any matter
being considered by the assessment committee under
the Bill which it reasonably requires; and
· an applicable law decision maker to provide the
assessment committee with advice on a matter or issue
the committee considers relevant for the purpose of
making an assessment committee recommendation.
Clause 51 provides that the project proponent must give a copy of the
comprehensive impact statement to every applicable law
decision maker referred to in the comprehensive impact
statement. This must be done as soon as practicable after the
commencement of the public exhibition period.
Clause 52 sets out the requirements relating to the process for making
public submissions on a comprehensive impact statement
during the public exhibition period.
Subclause (1) provides that any person may make a submission,
or amend a submission that it has made, to the assessment
committee.
Subclause (2) provides that two or more persons may make, or
may make amendments to, a submission and the assessment
committee may treat this as a single submission.
Subclause (3) sets out the requirements that a submission or an
amendment to a submission must meet for it to be considered
properly made, which are that it must--
· be in writing; and
· state the name and address of the person making the
submission or amendment; and
· state the grounds of the submission or amendment; and
· be relevant to the declared project; and
· be within the scope of the terms of reference of the
assessment committee; and
38
· in the case of a submission made by 2 or more persons,
states the name and address of the person who will
represent those persons in a preliminary hearing or
formal public hearing and be the contact person for
those persons.
Subclause (4) provides that a person who has made a properly
made submission may withdraw that submission by notice in
writing given to the assessment committee.
Clause 53 provides that the assessment committee must disclose and make
public all submissions, unless they are confidential.
Subclause (1) provides that an assessment committee must
cause a properly made submission to be published on the
Department's Internet site unless the following are met--
· the person making the submission claims, when giving
it to the assessment committee, that it contains
confidential information; and
· the assessment committee agrees that the submission or
amendment contains confidential information.
Subclause (2) provides that if a properly made submission is
claimed to contain confidential information and the assessment
committee has decided that it contains confidential information,
that submission may be published if the confidential
information is omitted.
Subclause (3) provide that if information is omitted from a
properly made submission that has been made publicly
available on the basis that the information has been accepted by
an assessment committee to be confidential information, a note
to that effect must be included at the place in the submission
from where the information is omitted.
Subclause (4) provides that, despite anything to the contrary in
this clause, the assessment committee must give any submission
that is properly made to the Planning Minister on request, with
any confidential information contained in the submission or
amendment.
Clause 54 provides that the assessment committee is required to review
every properly made submission that it receives during the
public exhibition period.
39
Subclause (2) provides that an assessment committee may
review a submission that it receives under Subdivision 4 that
is--
· after the end of the public exhibition period that is a
properly made submission; or
· even if the submission or amendment to a submission is
not a properly made submission.
Clause 55 provides that the assessment committee must provide the
project proponent with a copy of every submission and every
amendment to a submission that it receives.
Clause 56 provides that the assessment committee may, as part of a review
under clause 54, meet or correspond with a person who has
made a submission in order to clarify a matter arising from the
submission.
The intention of subclause (1) is to enable the assessment
committee to clarify matters before the preliminary hearing and
formal public hearing processes commence.
Subclause (2) requires the assessment committee to make a
record of every meeting that it holds with a submitter.
Subclause (3) provides that the assessment committee must
cause all correspondence between itself and a person who has
made a submission and all records referred to in subclause (2)
to be published on the Department's Internet site, unless--
· the person claims when meeting with or in
correspondence with the assessment committee that the
information they provide is or contains confidential
information; and
· the assessment committee decides that the information
is or contains confidential information.
The purpose of publishing the information on the Department's
Internet site is to provide additional assurance that the
assessment committee process is transparent.
Subclause (4) provides that if information given to an
assessment committee is claimed to contain confidential
information and the assessment committee has decided that it
contains confidential information, that information may be
published if the confidential information is omitted.
40
Subclause (5) provides that if information is omitted from a
record or correspondence that has been made publicly available
on the basis that it has been accepted by an assessment
committee to be confidential information, a note to that effect
must be included at the place in the record or correspondence
from where the information is omitted.
Subclause (6) provides that, despite anything to the contrary in
this clause, the assessment committee must give a record or
correspondence to the Planning Minister on request, with any
confidential information contained in the record or
correspondence.
Clause 57 sets out the process by which the assessment committee must
conduct preliminary hearings.
Subclause (1) provides that an assessment committee must
conduct a preliminary hearing so as to enable persons--
· who have made properly made submissions to clarify
any issues that they have raised in their submissions
about the declared project; or
· to raise any procedural or preliminary matters in relation
to the formal public hearing that will be conducted in
relation to the comprehensive impact statement.
It is intended that the preliminary hearing will operate in a
similar way to a directions hearing, in that it will provide for the
determination of procedural matters, but will also provide for an
initial hearing of some substantive matters.
It is intended that the preliminary hearing will be used to clarify
certain substantive issues and raise issues of concern. This will
enable or require the project proponent to make amendments to
the comprehensive impact statement to address those issues or
concerns before the formal public hearing.
Subclause (2) provides that the assessment committee may
determine which persons who have made properly made
submissions may attend the preliminary hearing.
Subclause (3) provides that the preliminary hearing must be
conducted--
· in accordance with Division 2 of Part 8; and
· in accordance with any direction given to the
assessment committee by the Planning Minister under
the terms of reference given to the committee under
clause 35(1)(b); and
41
· within 20 business days after the end of the public
exhibition period.
Subclause (4) provides, without limiting the matters about
which an assessment committee may give directions in the
conduct of a preliminary hearing, that after a preliminary
hearing an assessment committee may give directions to a
project proponent--
· seeking clarification of any matters arising from the
project proponent's comprehensive impact statement;
· requiring the project proponent to provide further
information in relation to any or all of its impact
assessments in relation to the declared project; or
· requiring the project proponent to provide further
information regarding any other aspect of the project
proponent's comprehensive impact statement.
Subclause (5)(a) provides that an assessment committee must
make a record of a preliminary hearing conducted under this
clause.
Subclause (5)(b) provides that an assessment committee must
prepare a written summary of the preliminary hearing that
includes a list of the names of the persons participating in the
hearing and of the issues raised at the hearing.
Subclause (6) provides that the assessment committee must
cause a written summary referred to in subclause (5) to be
published on the Department's Internet site.
The purpose of subclauses (5) and (6) is to provide additional
transparency in relation to the preliminary hearing process.
Clause 58 sets out the requirements for the notification of preliminary
hearings.
Subclause (1) provides that, as soon as practicable after the
commencement of the public exhibition period for a
comprehensive impact statement, the assessment committee
must commence notification in relation to the preliminary
hearing.
Subclause (1)(a) provides that the assessment committee must
publish notice of the time and place at which the preliminary
hearing is to be conducted in a newspaper circulating generally
throughout Victoria and in at least one newspaper circulating in
the area where the declared project will be developed.
42
Subclause (1)(b) provides that the assessment committee must
give notice of the time and place at which the preliminary
hearing is to be conducted. The notice must be given to those
owners and occupiers of land who were given notice of the
exhibition of the comprehensive impact statement under
clause 47.
Subclause (1)(c) provides that the assessment committee must
cause notice of the time and place at which the preliminary
hearing is to be conducted on the Department's Internet site.
Subclause (2) provides that the assessment committee may
direct the project proponent to publish notice of the time and
place at which the preliminary hearing is to be conducted on the
on the project proponent's Internet site. Subclause (3) requires
the project proponent to comply with a direction under
subclause (2) as soon as practicable after receiving the
direction.
Clause 59 provides that the assessment committee must give the project
proponent for the declared project a written report that
summarises the issues in relation to the declared project that the
committee considers the project proponent must address under
Subdivision 5.
Subclause (2) provides that a report under subclause (1) must be
given to the project proponent within 20 business days after the
end of the public exhibition period.
Clause 60 provides that, within 10 business days of the receipt of the
comprehensive impact statement issues report from the
assessment committee, the project proponent must prepare a
schedule for the preparation of revisions to the comprehensive
impact statement to address the issues raised in the report.
The project proponent must give a copy of the schedule of
revisions to the assessment committee and the Secretary.
Subdivision 5--Refinement of comprehensive impact statements
and options for declared project
Clause 61 requires the project proponent to revise the comprehensive
impact statement so that it addresses the issues set out in the
issues report prepared by the assessment committee and
provided to the project proponent in accordance with
clause 59(1).
Subclause (2) provides that the project proponent may also
revise the comprehensive impact statement to address issues
raised directly in submissions made to the assessment
43
committee. Copies of submissions made by any person in
accordance with clause 52 are to be provided to the project
proponent by the assessment committee in accordance with
clause 55.
The project proponent is not required to revise the
comprehensive impact statement within a specified time period.
The project proponent can, and is expected to, take as much
time as needed to address, so far as is reasonably possible, the
issues specified in the assessment committee's assessment
report or raised in submissions. The action of "revising" is
intended to potentially include all the activities the project
proponent engaged in when preparing the comprehensive
impact statement. For example, surveys, analysis, designs,
research, studies, consultation, etc.
Clause 62 sets out the process for the publication and submission of the
revised comprehensive impact statement.
Subclause (1) provides that this clause, clause 62, applies
subject to clause 63, which provides that the assessment
committee must be notified at least 10 business days in advance
of the proponent's intention to publish the revised
comprehensive impact statement.
Subclause (2) provides that the project proponent must publish
the revised comprehensive impact statement and notice of that
publication on its Internet site.
Subclause (3)(a) provides that notice of the publication of the
revised comprehensive impact statement must be published.
It must be published in a newspaper circulating generally
throughout Victoria and in at least one newspaper circulating in
the area where the declared project to which the comprehensive
impact statement relates will be developed.
Subclause (3)(b) provides that notice of the publication of the
revised comprehensive impact statement must be given to--
· the Secretary; and
· every person who made a properly made submission
during the public exhibition period; and
· all owners and occupiers of land that were given a
notice under clause 47, that is, owners and occupiers of
land that are or will be materially affected by the
declared project; and
44
· all owners and occupiers of land who are or will be
materially affected by the declared project because of
the revised comprehensive impact statement and who
have not been given a notice under clause 47.
Subclause (4) provides that a notice of the publication of a
revised comprehensive impact statement must--
· include the name of the project proponent; and
· include information about the scope of the declared
project; and
· invite submissions on the revised comprehensive impact
statement from persons who may be adversely affected
by the revised statement because of the revisions; and
· state that submissions must be made to the assessment
committee established to assess the comprehensive
impact statement to which the revised statement relates;
and
· state the last date by which submissions must be
received by the assessment committee, which must be
no less than 10 business days after the date of
publication of the notice in the newspaper circulating
generally in Victoria; and
· give an explanation as to how a submissions in relation
to the revised comprehensive impact statement must be
made; and
· state an address to which submissions to the assessment
committee established to assess the comprehensive
impact statement to which the revised statement relates
are to be sent.
Subclause (5) provides that on receiving a notice under
subclause (3)(b)(i), the Secretary must publish the notice on the
Department's Internet site.
Clause 63 provides that the project proponent must notify the assessment
committee of the proponent's intention to publish the revised
comprehensive impact statement in accordance with subclause
62(2)(a) at least 10 business days before the proponent
publishes the revised statement.
45
Subdivision 6--Other requirements before formal public hearings
Clause 64 applies if a works approval is required in order for the declared
project or part of the declared project to be developed.
Subclause (2)(a) provides that the project proponent must give
the revised comprehensive impact statement to the EPA for
review on the same day the proponent gives the revised
statement to the assessment committee.
Subclause (2)(b) provides that the project proponent must give
to the EPA an amount that is equivalent to the fee prescribed for
the purpose of section 19B(1)(b) of the Environment
Protection Act 1970.
Clause 65 provides that an applicable law decision maker may give an
assessment committee advice as to whether the parts of a
comprehensive impact statement that relate to the applicable
approvals that it grants adequately address the relevant
applicable law criteria and, if so, the kinds of conditions or
restrictions that the assessment committee may impose on those
applicable approvals.
Subclause (2) provides that advice under subclause (1) must be
given to an assessment committee before the first day after the
end of the formal public hearing conducted in relation to the
comprehensive impact statement.
Subdivision 7--Formal public hearings
Clause 66 provides that the assessment committee must, as soon as
practicable after receiving a notification of an intention to
publish a revised comprehensive impact statement under
clause 63--
· publish notice of the time and place at which the formal
public hearing for the comprehensive impact statement
is to be conducted in a newspaper circulating generally
throughout Victoria and in at least one newspaper
circulating in the area where the declared project to
which the comprehensive impact statement relates will
be developed; and
· give notice of the time and place at which the formal
public hearing is to be conducted to the Secretary and
the owners and occupiers of land that were given a
notice under clause 47; that is, owners and occupiers of
land that are or will be materially affected by the
declared project.
46
Subclause (2) provides that, on receiving a notice from the
assessment committee under subclause 66(1)(b)(i), the
Secretary must publish the notice on the Department's Internet
site.
Clause 67 provides that the assessment committee may require the project
proponent to publish notice of the time and place at which the
formal public hearing is to be conducted on the project
proponent's Internet site.
Subclause (2) provides that the project proponent must comply
with a direction from the assessment committee under subclause
(1) as soon as practicable after receiving the direction.
Clause 68 provides that an assessment committee must conduct a formal
public hearing in relation to the comprehensive impact
statement in accordance with Division 2 of Part 8.
Subclause (2) provides that the assessment committee must
commence the formal public hearing within 20 business days
after notice of the publication of the revised comprehensive
impact statement is published by the project proponent under
subclause 62(2).
Subclause (3) provides that the assessment committee must
complete the formal public hearing within 30 business days
after commencing the formal hearing under subclause (2).
Subdivision 8--Supplementary comprehensive impact statement
assessments
Clause 69 provides for the consideration of further assessments arising out
of a formal public hearing or submissions.
Subclause (1) provides that this clause will apply if two
requirements are met.
Firstly, under subclause (1)(a), in a formal public hearing or a
properly made submission there must be a further option put
forward in relation to the declared project that the assessment
committee considers--
· provides a prudent and feasible alternative to the
preferred option contained in the comprehensive impact
statement; and
· clause has not been given sufficient consideration.
47
In addition, under subclause (1)(b), the assessment committee
must consider that the further option may have the effect of
requiring the comprehensive impact statement to be revised and
reassessed by the process of a supplementary assessment.
Subclause (2) provides that in exceptional circumstances the
assessment committee may recommend to the Planning
Minister in writing that the Minister directs the project
proponent to undertake a supplementary assessment.
Subclause (3) sets out the matters that the assessment committee
may have regard to in determining what constitutes "exceptional
circumstances" for the purpose of subclause (2). These are--
· the nature of the declared project and the contents of the
comprehensive impact statement; and
· the extent to which the further option provides a prudent
and feasible alternative to the preferred option presented
in the comprehensive impact statement; and
· the impacts of the further option; and
· any further information that is provided to the
assessment committee by the project proponent under
clause 70(1) in relation to the extent to which the further
option provides a prudent and feasible alternative.
This test of "exceptional circumstances" sets a deliberately high
threshold (informed by relevant case law on the term) for when
further information will be required, and it is likely that this test
will not be met in the majority of cases.
Clause 70 provides that, for the purpose of making a recommendation
under clause 69(2), an assessment committee may request, in
writing, that the project proponent provide the committee with
further information about the extent to which the proposed
further option provides a prudent and feasible alternative.
Subclause (2) provides that the project proponent must comply
with this request.
Subclause (3) provides that the assessment committee must give
any additional information provided by the proponent in
compliance with a request under subclause (1) to the Secretary.
The Secretary must publish this additional information on the
Department's Internet site.
48
Clause 71 provides that, on receiving a recommendation from the
assessment committee under clause 69(2), the Planning Minister
may direct the project proponent to undertake a supplementary
assessment in accordance with clause 72 in relation to the
further option.
Subclause (2) provides that the Planning Minister must provide
reasons for his or her direction under subclause (1) to the
project proponent.
Clause 72 applies if the Planning Minister directs the project proponent for
a declared project to undertake a supplementary assessment in
relation to a further option under this clause.
Subclause (2) provides that the project proponent must review
and revise the comprehensive impact statement for the declared
project in light of the further option.
After undertaking the review and revisions in accordance with
subclause (2), subclause (3) requires the project proponent to
comply with clauses 60, 62, 63 and 64.
These clauses relate to the following stages--
· project proponent must prepare a schedule of possible
revisions that address the issues in the comprehensive
impact statement issues report (clause 60);
· publication and submission of revised comprehensive
impact statement (clause 62);
· assessment committee to be notified at least 10 business
days before publication (clause 63); and
· revised comprehensive impact statement and works
approvals (clause 68).
Subclause (4) provides that a reference in clauses 60, 62, 63
and 64 to a revised comprehensive impact statement is to be
read a reference to a comprehensive impact statement reviewed
and revised under clause 72.
Subclause (5) provides that clause 68 applies as if a reference in
that section to a revised comprehensive impact statement were
reference to a comprehensive impact statement reviewed and
revised under clause 72. Clause 68 relates to the conduct of
formal public hearing by assessment committee.
49
Subdivision 9--Assessment committee recommendations in
relation to comprehensive impact statements
Clause 73 provides for the making of the assessment committee
recommendation.
Subclause (1) provides that an assessment committee
established for a declared project by written report to the
Planning Minister must recommend to the Planning Minster as
to whether the Planning Minister should make an approval
decision that--
· grants all or some of the applicable approvals (with or
without conditions); or
· refuses to grant all of the applicable approvals.
Subclause (2) provides that an assessment committee must not
make a recommendation that is inconsistent with the
committee's terms of reference.
Subclause (3) provides that if the recommendation recommends
that the Planning Minister grant all or some of the applicable
approvals but with conditions, the recommendation must
specify--
· the conditions;
· the relevant applicable law under which the conditions
are being imposed; and
· the person or body authorised under the relevant
applicable law to administer compliance with the
conditions.
Subclause (4) provides that in making its recommendation, the
assessment committee must have regard to--
· the project proposal; and
· the comprehensive impact statement; and
· all submissions that were properly made submissions;
and
· any issues raised in, as the case requires--
· meetings and correspondence referred to in
clause 56; and
· preliminary hearings; and
· formal public hearings; and
50
· the comments of the persons the committee was directed
to the by the Planning Minister to consult with under
this Division; and
· any consultation with or advice received from an
applicable law decision maker under this Division; and
· subject to this section, every applicable law relevant to
the declared project, including the applicable law
criteria under that law.
Subclause (5) provides that, in addition, in making an
assessment committee recommendation, an assessment
committee may have regard to any other matter the committee
considers relevant.
Subclause (6) provides that the requirement to take into account
every applicable law applies despite anything to the contrary in
the applicable law that requires the relevant applicable law
decision maker under that law to do anything other than have
regard to a mandatory applicable law criteria.
Mandatory applicable law criteria is defined in clause 3.
Subclause (7) provides that an assessment committee
recommendation must set out the reasons of the assessment
committee.
Subclause (8) provides that an assessment committee
recommendation must be made and given to the Planning
Minister within 30 business days after the last day of the formal
public hearing.
Clause 74 provides for the advice of the EPA on conditions for works
approvals.
Subclause (1) provides that clause 74 applies if a works
approval is required under the Environment Protection Act
1970 for the project.
Subclause (2) provides that the assessment committee must give
a copy of its recommendation to the EPA on the same day that it
gives its recommendation to the Planning Minister.
Subclause (3) provides that upon receipt of the
recommendation, the EPA may give advice to the Planning
Minister as to--
· whether the Planning Minister should, as part of the
approval decision, issue a works approval for the
declared project or a part of the declared project; and
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· if a works approval should be issued, whether it should
be subject to conditions and if so, the nature of such
conditions.
Subclause (4) provides that the EPA must give its advice to the
Planning Minister within 30 business days after receiving the
copy of the assessment committee recommendation.
Division 6--Interaction with the Aboriginal Heritage Act 2006
Clause 75 provides for the notification of the Planning Minister in relation
to cultural heritage management plans under the Aboriginal
Heritage Act 2006.
The project proponent must--
· give the Planning Minister a copy of every cultural
heritage management plan that is approved under the
Aboriginal Heritage Act 2006 for the area in which
works are to be carried out for the development of the
project or a part of the project; or
· notify the Planning Minister in writing if the proponent
has applied to VCAT under section 116 of the
Aboriginal Heritage Act 2006 for a review of, or has
commenced proceedings in court in relation to--
· a decision of a registered Aboriginal party to
refuse to approve a cultural heritage management
plan under section 63 of that Act; or
· a decision of the Secretary (within the meaning
of that Act) to refuse to approve a cultural
heritage management plan under section 65 of
that Act.
Division 7--Approval decisions
Subdivision 1--Application
Clause 76 provides that this Division applies if the Planning Minister
receives either an impact management plan from a project
proponent under clause 29 or an assessment committee
recommendation.
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Subdivision 2--General provisions relating to approval decisions
Clause 77 provides for approval decisions.
Subclause (1) provides that, subject to this Division, on receipt
of an impact management plan or an assessment committee
recommendation, the Planning Minister must make a decision
(that is, an approval decision) whether to--
· grant all or some of the applicable approvals that are
necessary for the declared project or a part of the
declared project to be developed; or
· refuse to grant all of the applicable approvals that are
necessary for the declared project or a part of the
declared project to be developed.
Subclause (2) sets out the matters the Planning Minister must
have regard to in making an approval decision.
· Where the Planning Minister has received an
assessment committee recommendation, the Minister
must have regard to--
· the assessment committee recommendation; and
· the advice of the EPA under clause 74; and
· In every case, have regard to the discretionary
applicable law criteria under an applicable law; and
· Subject to subclause (3), in every case, have regard to
the mandatory applicable law criteria under an
applicable law.
Subclause (3) provides that the requirement to have regard to
the mandatory applicable law criteria. Subsection (2)(c) applies
despite anything to the contrary in the applicable law that
requires the relevant applicable law decision maker to do
anything other than have regard to the mandatory applicable law
criteria.
Both the terms discretionary applicable law criteria and
mandatory applicable law criteria are defined in clause 3.
53
Clause 78 empowers the Planning Minister to make an approval decision
that is solely for an amendment to a provision of a planning
scheme if the Planning Minister has received a notification
under clause 75(b); that is a notification that the project
proponent has applied to VCAT or commenced proceedings in a
court in relation to a matter under the Aboriginal Heritage Act
2006.
This power ensures that appropriate planning scheme
amendments and land acquisitions can commence pending the
outcome of the matter referred to in clause 75(b).
Clause 79 requires the Planning Minister to consult with every relevant
applicable law decision maker before making an approval
decision.
Clause 80 prescribes the contents of an approval decision.
Subclause (1) provides that an approval decision must--
· specify the applicable approvals granted or not granted;
and
· if any of the applicable approvals have been
granted subject to conditions, those conditions;
and
· any other conditions the Planning Minister may
wish to impose; and
· set out the reasons of the Planning Minister for the
decision.
Subclause (2) provides that without limiting the power of the
Planning Minister to impose any other conditions, the Planning
Minister may, by condition, require the project proponent to--
· (for projects subject to a CIS process) prepare an impact
management plan under Division 4 in relation to an
aspect of the declared project;
· (in all cases) enter into an agreement with the Minister
in relation to any matter relating to the development of
the declared project that is not a matter to which an
applicable approval (to which the approval decision
relates) applies.
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Clause 81 prescribes a time limit for the making of an approval decision.
Subclause (1) provides that the Planning Minister must make an
approval decision within 40 business days after receiving the
impact management plan or the assessment committee
recommendation (whichever applies).
Subclause (2) provides, however, that the Planning Minister
must not make their decision before receiving advice from the
EPA under section 74 or the time afforded to the EPA under
that section lapses (whichever occurs first).
Clause 82 provides for the giving and publication of the approval decision.
Subclause (1) provides that an approval decision must be given
to the project proponent and every applicable law decision
maker empowered to grant an applicable approval that is
necessary for the declared project or a part of the declared
project to be developed.
Further, copies of the approval decision must be provided to
prescribed persons who were involved in the comprehensive
impact statement assessment process or impact management
plan assessment process (whichever is applicable).
Subclause (2) provides that an approval decision must be
published on the Department's Internet site and notice of its
making must be published in the Government Gazette.
The notice in the Government Gazette must state that any
proceedings to challenge an approval decision must be filed
within 21 days of the gazettal.
Subclause (3) provides that an approval decision takes effect
on the day notice of its making is published in the Government
Gazette.
Clause 83 provides that the Planning Minister must publish the assessment
committee recommendation to which the approval decision
relates at the same time as the publication of the approval
decision.
Further, the assessment committee's recommendation (the
"approval recommendation") must be published on the
Department of Planning and Community Development's
Internet site.
Clause 84 provides for the effect of an approval decision.
Subclause (1) provides that an approval decision granting any of
the necessary applicable approvals for the project is taken to be
a decision of the applicable law decision maker--
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· despite anything to the contrary in that applicable law;
and
· even if--
· no application was made under the applicable
law for the particular applicable approval;
· the process specified under the relevant
applicable law for the making of the applicable
law decision was not complied with; or
· the fee required under the relevant applicable law
was not paid.
Subclause (2) empowers (subject to subclause (3)) the relevant
applicable law decision maker to vary, amend or revoke an
applicable approval in accordance with the relevant applicable
law--
· only on the application of the project proponent; and
· with the written consent of the Planning Minister.
Subclause (3) provides in the case of an applicable approval that
is a works approval, a condition to which the approval is subject
may be amended, or a new condition may be inserted into the
works approval, by the EPA by notice--
· given to the project authority; and
· published in the Government Gazette.
Subclause (4) provides that an amendment, or insertion, of a
condition under subsection 93 is to be taken to be an
amendment of the works approval under section 19C of the
Environment Protection Act 1970.
Subclause (5) provides that subclauses (2) and (3) apply despite
anything to the contrary in an applicable law.
Subdivision 3--Planning scheme amendments
Clause 85 provides for modification of the Planning and Environment
Act 1987.
Subclause (1) provides that this clause applies if the Planning
Minister must make an approval decision that relates to the
preparation, adoption and approval of an amendment to a
provision of a planning scheme.
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Subclause (2) provides that, subject to this Division, for the
purpose of the Planning Minister making the approval decision,
the Planning and Environment Act 1987 (except sections
38(2) to (4) and 39) applies as an applicable law.
Sections 38(2) to (4) of the Planning and Environment Act
1987 provide for a planning scheme amendment to be able to be
revoked wholly or in part by a resolution passed by either
House of Parliament within 10 sitting days after the notice of
approval of the amendment is laid before the House.
Section 39 allows for persons substantially or materially
affected by a failure of the Minister, a planning authority or a
panel to comply with relevant requirements of the Planning
and Environment Act 1987 to refer that non-compliance to
VCAT apply to VCAT for a determination, including a
direction that the planning scheme amendment not be adopted
or approved unless action specified by VCAT is taken.
Clause 86 provides that an approval decision that includes a planning
scheme amendment must not have the effect of requiring a
person to hold a planning permit in order for that person or
another person to carry out works in the relevant project area.
Subdivision 4--Other applicable law exclusions and modifications
Clause 87 provides that if the Planning Minister must make an approval
decision that relates to the granting of a permit under section 40
of the Flora and Fauna Guarantee Act 1988, the project
proponent is taken to be a landholder to which section 40 of that
Act applies for the purpose of the Planning Minister making the
approval decision.
Clause 88 provides for the modification of the Heritage Act 1995.
Subclause (1) provides that this clause applies if the Planning
Minister must make an approval decision that relates to--
· the issue of a permit under section 74 of the Heritage
Act 1995; or
· the issue of a consent under section 129 of the Heritage
Act 1995.
Subclause (2) provides that, subject to this Division--
· for a permit under section 74--the Heritage Act 1995
(other than sections 72 and 74(2)) applies as an
applicable law for the purpose of the Planning Minister
making the approval decision;
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· for the issuing of a consent under section 129--the
Heritage Act 1995 (other than sections 129(2)(c))
applies as an applicable law for the purpose of the
Planning Minister making the approval decision.
Section 74 of the Heritage Act 1995 provides for the issuing of
permits for works and activities requiring a permit under that
Act.
Section 129 of the Heritage Act 1995 provides for the issuing
of consents for works impacting on archaeological relics.
Section 129(2)(c) requires the consent of the relevant land
owner or owner of the archaeological relic for such works.
Division 8--Approval decision variations
Clause 89 provides for the variation of the approval decision on
application of the project authority.
Subclause (1) empowers the project authority to apply to the
Planning Minister for a variation to the approval decision for
the declared project.
Subclause (2) requires the application to be in writing, to
specify the variation being sought and include information that
explains and gives the reasons for the variation sought.
Clause 90 provides for the Planning Minister to make a declaration on an
application for an approval variation.
Subclause (1) requires the Planning Minister, on receipt of an
application under clause 89, to determine which provisions of
the impact management plan assessment process or
comprehensive impact statement process should apply to the
variation sought.
Subclause (2) provides that in making the determination, the
Planning Minister must have regard to the nature of the
variation sought.
Subclause (3) provides that the determination must be in
writing, specify which of the provisions of the impact
management plan or comprehensive impact statement process
will apply to the variation sought; and be given to the project
authority that made the application.
Subclause (4) provides that notice of the determination must be
published in the Government Gazette and on the Department's
Internet site.
58
Clause 91 provides the process by which an application for variation is to
be assessed under the impact management plan assessment or
comprehensive impact statement process.
Under this clause--
· references in these processes under the Bill to the
project proponent are to be read as a reference to the
project authority seeking the variation;
· references to the declared project (other than a reference
to the declared project to be developed) are to be read as
a reference to the variation being sought to the approval
decision that applies to the approved project;
· references to a declared project to be developed are to
be read as a reference to the declared project to be
developed if the variation is made.
Further, the clause provides that Divisions 6 (Interaction with
the Aboriginal Heritage Act 2006) and 7 (Approval decisions)
apply as if--
· references to an approval decision were an approval of a
variation; and
· references to the project proponent were a reference to
the project authority seeking the variation--
with any other modifications that are necessary.
Clause 92 states that, to avoid doubt, a project authority may continue to
develop those parts of an approved project that do not relate to
the variation of the approval decision sought.
Division 9--Other matters
Clause 93 provides that the Planning Minister may correct on approval
decision or applicable approval if the decision or approval
contains a clerical error, evident miscalculation or other evident
material mistake.
Clause 94 requires the Planning Minister, within 10 business days after
receiving a written request from the Premier, to report to the
Premier in relation to--
· whether there has been any non-compliance with a time
limit required under Part 3; and
· the reasons for those cases of non-compliance.
59
PART 4--THE PROJECT AREA
Clause 95 provides for the designation of the project area by the Planning
Minister.
Subclause (1) provides that the clause applies where the project
has been declared by the Governor in Council under clause 10
of the Bill to be a declared project to which the Bill applies
excluding Parts 3 and 8, or where the project has been approved
by the Planning Minister under Part 3.
Subclause (2) provides for the designation by the Planning
Minister, by Order published in the Government Gazette, of the
area of land for the declared project.
Subclause (3) provides that the Planning Minister must not
make a designation unless--
· the Minister has received appropriate plans that have
been signed by the Surveyor-General and lodged in the
Central Plan Office; and
· the designation is consistent with any applicable
planning scheme.
Subclause (4) provides that the Order takes effect on the day
that it is published in the Government Gazette or, if a later day
is specified in the Order, on that later day.
Clause 96 empowers the Planning Minister to vary the project area for the
approved project.
Subclause (2) provides that the request must set out the
variation being requested and be in writing.
Subclause (3) provides that on receipt of a request, the Planning
Minister may vary the project area by Order published in the
Government Gazette.
The variation may be either or both of the following--
· increasing the project area by designating an area of
land in the vicinity of the project area to be part of the
project area;
· designating an area of land as not being part of the
project area.
Subclause (4) provides that the Planning Minister must not vary
the project area unless the Planning Minister has received
appropriate plans describing the variation that have been signed
by the Surveyor-General and lodged at the Central Plan Office.
60
The Order takes effect on the day that it is published in the
Government Gazette or, if a later day is specified in the Order,
on that later day.
Clause 97 empowers the Planning Minister, by Order published in the
Government Gazette, to approve consolidated plans of the
project area incorporating all variations made under clause 96.
Subclause (2) provides that the Planning Minister must not
make the Order unless the Planning Minister has received the
appropriate consolidated plans that have been signed by the
Surveyor-General and lodged in the Central Plan Office.
Subclause (3) provides that an Order approving consolidated
plans for a project area revokes and replaces any existing
approved consolidated plans for the project area.
Subclause (4) provides that the Order takes effect on the day
that it is published in the Government Gazette or, if a later day
is specified in the Order, on that day.
Clause 98 empowers the Planning Minister, in accordance with the
Planning and Environment Act 1987 to amend the planning
scheme to provide--
· in the case of an Order increasing the project area--
deeming the extra land to be reserved under the
planning scheme for public purposes; and
· in the case of an Order decreasing the project area--
providing that the land removed from the project area is
no longer deemed to be reserved under the planning
scheme for public purposes.
PART 5--A PROJECT AUTHORITY'S FUNCTIONS AND
POWERS
Division 1--Acquisition of land in the project area
Clause 99 provides definitions for Part 5 for additional project power, and
specified project power.
Additional project powers are--
· to power to acquire, hold or dispose of, on behalf of the
Crown, real or person property;
· (with the written approval of the Treasurer) participate
in the formation of a corporation, trust, partnership or
other body or enter into a joint venture;
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· subscribe for or otherwise acquire and hold and dispose
of shares in or debentures or other securities of, a
corporation;
· become a member of a company limited by guarantee;
· subscribe for or otherwise acquire, and hold and dispose
of, units in a trust;
· acquire, and hold and dispose of, an interest in a
partnership or other body;
· give indemnities, guarantees, releases and charges and
anything else of a similar nature;
· to, on behalf of the Crown--
· assign, grant, lease, licence, sell, mortgage, use
as a security or otherwise encumber or dispose of
any intellectual property right of the Crown;
· seek any remedy in relation to or do anything
necessary to enforce, protect, maintain, register
or exploit any intellectual property right of the
Crown;
· seek any remedy in relation to or do anything
necessary to enforce, protect, maintain or exploit
any Crown copyright;
· to employ or engage staff or consultants;
· to enter into arrangements for the services of persons
employed under the Public Administration Act 2004;
· to appoint agents and attorneys and act as an agent.
A specified project power means an additional project power
specified by Order under clause 100.
Clause 100 provides that the Governor in Council, on the recommendation
of the Project Minister may, by Order published in the
Government Gazette, specify an additional project power
(as defined) to be a specified project power (as defined).
62
Division 2--Functions and powers of a project authority
Clause 101 provides that, for an approved project, a project authority has
the following functions--
· facilitating, on behalf of the State, the development of
the approved project;
· seeking and evaluating submissions from persons
interested in undertaking the approved project;
· negotiating with persons interested in undertaking the
development of the project;
· making recommendations in relation to contractual
arrangements between the State and any other person
for the development or delivery of the approved project;
· entering into contractual arrangements with any persons
for the development or delivery of the approved project
and to administer and manage such arrangements;
· administering and managing agreements and
arrangements between the State and any other person
for, or relating to, the development or delivery of the
approved project;
· facilitating and co-ordinating consultations with
statutory authorities and agencies of the State and other
bodies or persons involved in, or affected by, the
development or operation of the approved project;
· negotiating and entering into arrangements with
statutory authorities and agencies of the State and other
bodies or persons involved in, or affected by, the
development or operation of the approved project;
· making recommendations to the Project Minister in
relation to facilitating the approved project and
co-ordinating with statutory authorities, agencies of the
State and other bodies or persons involved in, or
affected by, the development or operation of the
approved project;
· ensuring the agreements and arrangements between the
State and any other person for, or relating to, the
development or delivery of the approved project are
performed in accordance with their terms;
63
· commissioning of transport infrastructure developed as
part of the approved project;
· undertaking any other functions that are conferred on
the project authority by or under this Act or any other
Act.
Clause 102 provides for the project authority's powers in performing its
project functions. The clause provides that, in addition to all
other powers conferred on it by or under any other Act or law,
the project authority may exercise a specified project power and
exercise a power conferred on it by or under this Act.
Further, the clause provides that a project authority may do all
other things necessary or convenient to be done for, or in
connection with, or as incidental to, the performance of its
project functions under this Act.
Clause 103 provides for the delegation (by instrument) of project functions
(other than the power of delegation) by the project authority to
their employees; to persons employed under the Public
Administration Act 2004; or (if the authority is a body
corporate) to a member or chief executive of the authority.
The clause provides that if the project authority is a body
corporate, the instrument of delegation must be under the
authority's common seal.
Clause 104 provides for delegation where the Director of Public Transport
is the project authority. The Director of Public Transport is not
a body corporate and has no staff of its own.
The clause provides that the Director of Public Transport may
(by instrument) delegate project functions (other than the power
of delegation) to a person employed in the Department of
Transport under Part 3 of the Public Administration Act 2004,
to a person employed by VicRoads under the Public
Administration Act 2004 or to a person engaged by the
Secretary of the Department of Transport.
Clause 105 provides for delegations to project contractors. The clause
provides that a project authority may (by instrument) delegate a
road function to a project contractor.
A road function is defined in clause 3 as being a project
function conferred on a project authority relating to
Subdivision 1 of Division 8 of Part 6.
64
The powers in relation to roads include the power to open,
discontinue, construct, relocate or realign any road and close
any road to traffic.
Where such functions are delegated to a project contractor, the
authority must publish a notice of that delegation in the
Government Gazette.
Where the project authority is body corporate, the instrument of
delegation must be made under the authority's common seal.
Clause 106 provides for sub-delegation by project contractors.
Subclause (2) provides that where a road function is delegated
to a project contractor and the instrument of delegation
authorises the sub-delegation of that road function to a person
or body, the project contractor may sub-delegate that function to
any person.
This power to sub-delegate is subject to the consent of the
Project Minister and any conditions contained in the instrument
of delegation.
Notice of any sub-delegation must be published by the project
contractor in the Government Gazette.
Clause 107 provides that sections 42 and 42A of the Interpretation of
Legislation Act 1984 apply to the sub-delegation authorised by
clause 106 in the same way as they apply to a delegation.
Section 42 ensures that where the exercise of a responsibility,
power, authority, duty or function is dependant upon the
opinion, belief or state of mind of the decision-maker, if the
responsibility, power, authority, duty or function is delegated,
the delegate may rely on their own opinion, belief or state of
mind in exercising that delegated responsibility, power,
authority, duty or function.
Section 42A provides that a power to delegate does not prevent
the delegator exercising the responsibility, power, authority,
duty or function; it allows the making of the delegation subject
to conditions and provides that the exercise of a delegated
responsibility, power, authority, duty or function is taken to be
the exercise of the responsibility, power, authority, duty or
function.
Clause 108 provides that before exercising a delegated road function, a
project contractor must notify the project authority in writing of
its intention to perform that function.
65
However, such notice is not required where there is an
agreement in force between the project contractor and the
project authority that provides for a notification of that kind.
Clause 109 provides that a project authority, when performing or exercising
a project function, is subject to the direction and control of the
Project Minister.
Division 3--End of declared project
Clause 110 provides that on the completion of an approved project, the
project authority must give written notification to the Project
Minister of the project's completion.
Upon receipt of that notification, the Project Minister must
publish a notice in the Government Gazette advising of the
completion of the approved project.
Clause 111 provides that the effect of the publication by the Project
Minister of the notice advising the completion of the approved
project is that the project authority ceases to have any project
functions in respect of the approved project to which the notice
relates.
PART 6--PROJECT DELIVERY
Division 1--Acquisition of land in the project area
Clause 112 provides that the project authority may acquire an interest in
land in the project area by agreement or by compulsory process.
Acquisition may be for the purpose of an approved project or
any purpose connected with the approved project.
Subclause (2) provides that this section does not apply to native
title rights and interests. The acquisition of native title rights
and interests is addressed in Division 2.
Clause 113 provides that the Bill is a special Act for the purposes of the
Land Acquisition and Compensation Act 1986 and that the
project authority is the entity authorised to undertake
compulsory acquisition of land for the purposes of approved
declared projects.
Clause 114 provides that, subject to clauses 115 and 117, land acquired
under clause 112 will vest in the Crown, unless the land is
Crown land and the project authority states in the notice of
acquisition that the land is being acquired in fee simple.
66
Clause 115 provides that if land vests in the Crown under clause 113, it is
deemed to be unalienated land of the Crown and is deemed to
be temporarily reserved under the Crown Land (Reserves) Act
1978 for public purposes, in particular, the purposes of the
approved project.
Subclause (2) provides that the reservation of the land may be
amended, revoked or otherwise dealt with in accordance with
the Crown Land (Reserves) Act 1978.
Clause 116 provides that if the project authority acquires any interest in the
nature of an easement (or purporting to be an easement) that
right must be taken to be an easement in gross. That is, it is
taken to be an easement even though there is no land vested in
the project authority or the Crown that is benefited by, or
capable of being benefited by, that right.
Clause 117 provides for the situation where the easement rights of a utility
are extinguished upon compulsory acquisition of land.
The clause preserves the utility's ownership of any
infrastructure in the easement, any rights under agreements
between utilities in relation to the infrastructure and rights
conferred under enactments (with the exception of interests in
real property).
Further, subclause (3) provides that the acquisition of the
interest in land is not to be regarded as placing the utility in
breach of any agreement between the utility and a third party.
Clause 118 modifies the effect of the Land Acquisition and
Compensation Act 1986, by--
· providing that section 3(3) of the Land Acquisition
and Compensation Act 1986 does not apply to the
extent of any inconsistency with the Bill. Section 3(3)
of that Act would ordinarily have the effect that the
Land Acquisition and Compensation Act 1986 would
prevail to the extent of any inconsistency with a special
Act, such as the Bill;
· providing that the project area is deemed to have been
reserved under a planning instrument for the purposes of
section 5 of the Land Acquisition and Compensation
Act 1986, which ordinarily requires land to be reserved
under a planning instrument prior to compulsory
acquisition;
67
· providing that the period under section 7(2) of the Land
Acquisition and Compensation Act 1986 is shortened
from 12 months to 3 months. Section 7(2) would
ordinarily prevent the compulsory acquisition of land
within 12 months of the service of a notice under
section 7(1)(b) that the authority does not intend to
compulsorily acquire the land;
· modifying the notice provisions under section 8(1) of
the Land Acquisition and Compensation Act 1986.
The effect of this provision is that the notice of intention
to acquire an interest in land must also state that the
land is within a project area within the meaning of the
Bill;
· applying section 74 of the Land Acquisition and
Compensation Act 1986 to the project authority's
powers of entry in relation to land and expanding it to
include a power to undertake flora and fauna surveys
and archaeological investigations;
· modifying the compensation provisions contained in
section 43 of the Land Acquisition and Compensation
Act 1986 by providing that any special suitability or
adaptability of the land for the purposes of the declared
project must be disregarded in assessing compensation;
and
· excluding the application of section 109 of the Land
Acquisition and Compensation Act 1986, on the basis
that specific powers to address disposal of land are
contained in the Bill.
Clause 119 expands the powers of temporary occupation available under
section 75 of the Land Acquisition and Compensation Act
1986 by providing that--
· section 75 empowers the project authority and any
person authorised by the project authority under that
section to enter any land;
· for the avoidance of doubt, the powers available under
that section include the power to demolish structures
(other than places of residence or business) and to carry
out drainage and waterway works of a permanent
nature; and
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· such powers may be used to temporarily occupy any
land, by excluding the operation of section 75(6), which
would otherwise preclude the powers under section 75
from being used to occupy land used primarily for
residential purposes.
Clause 120 provides for the payment of rent in circumstances where land
has been temporarily occupied under section 75 of the Land
Acquisition and Compensation Act 1986.
This section replaces section 47(3) of the Land Acquisition
and Compensation Act 1986, which would otherwise apply to
the payment of rent in such circumstances.
The clause has the effect that a valuer appointed by the Valuer
General will determine the amount of rent to be paid in the
event that agreement cannot be reached between the parties.
If either party disputes the valuer's determination, the dispute
resolution provisions contained in Part 10 of the Land
Acquisition and Compensation Act 1986 will apply.
Clause 121 provides for the preparation of a condition report which will be
used for the purposes of determining any compensation payable
under section 47 of the Land Acquisition and Compensation
Act 1986 in respect of land that has been temporarily occupied
under section 75 of that Act.
The clause provides that within 14 days after the project
authority occupies land under section 75, the project authority
must give the owner of the land a condition report.
If the owner does not agree with the condition report, they must
give notice to that effect to the project authority within one
month of receipt.
If such notice is not given within one month of receipt, the
owner is taken to agree with the contents of the condition
report.
If notice is given within one month of receipt, the parties have
two months to agree as to the contents of the condition report.
If the parties cannot agree within the two months, the project
authority must notify the Valuer General.
The Valuer General then has 10 business days to appoint a
valuer to prepare a condition report. A condition report
prepared by that valuer is conclusive evidence of the condition
of the land immediately prior to its occupation by the project
authority.
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Clause 122 provides that the Regulations and forms in force from time to
time under the Land Acquisition and Compensation Act 1986
apply, with such modifications as are necessary, to give effect
to this Division.
Clause 123 provides for buildings or structures to be transferred to
compensation claimants (with their agreement) in full or part
settlement of their claim for compensation against the project
authority.
Clause 124 provides for land to be transferred to compensation claimants in
full or part settlement of their claim for compensation.
Where a project authority compulsorily acquires part of a parcel
of land owned by a person, the project authority may require
that person to take land--
· that adjoins the part of that parcel that was not acquired;
and
· that is owned by the project authority or is surplus land.
Subclause (2) provides that the value of the adjoining land must
be deducted from any amount to be paid by way of
compensation to the owner of the land compulsorily acquired by
the project authority.
Subclause (3) provides that if the project authority and owner
cannot agree as to the value of that land, the value must be
settled in the same manner and at the same time as the
compensation to be paid to that owner.
Division 2--Acquisition of native title rights and interests
Clause 125 provides that Division 2 applies if section 24KA of the Native
Title Act 1993 (Cth) does not apply to an approved declared
project and the Project Minister makes an Order under
clause 126.
Section 24KA of the Native Title Act 1993 (Cth) validates
certain future acts which relate to facilities benefiting the
general public. It is anticipated (and preferred) that many
declared projects will utilise 24KA of the Native Title Act
1993 (Cth), rather than the compulsory acquisition process
under the Bill.
70
Clause 126 provides that the Project Minister may, by Order published in
the Government Gazette, determine that the compulsory
acquisition of native title rights and interests is necessary for the
purposes of an approved project. The Order takes effect on the
day that it is published in the Government Gazette.
Clause 127 provides that the project authority may acquire native title rights
and interests by a compulsory process and that the Land
Acquisition and Compensation Act 1986 will apply to such
acquisitions. This Division of the Bill will prevail to the extent
of any inconsistency with the Land Acquisition and
Compensation Act 1986.
Clause 128 provides that any rights or interests acquired by the project
authority under clause 127 will vest in the Crown.
Clause 129 contains the process by which the compulsory acquisition of
native title rights and interests will occur, by applying any
relevant procedure under the Native Title Act 1993 (Cth).
Subclauses (2) to (4) prescribe the process which will apply in
the event section 24MD(6B) of the Native Title Act 1993 (Cth)
applies.
Subclause (2) provides that if the procedure under section
24MD(6B) is followed and no objection is made within two
months, the project authority may compulsorily acquire the
native rights and interests.
Subclause (3) provides that VCAT is the independent body for
hearing an objection under section 24MD(6B).
Subclause (4) provides that if an objection is made, the project
authority may compulsorily acquire the native title rights and
interests in the land if--
· all objections have been withdrawn; or
· within 5 months after notification under section
24MD(6B), a request has not been made for the
objection to be referred to VCAT.
Subclause (5) provides that if an objection made under section
24MD(6B) is referred to VCAT and VCAT has determined that
the proposed compulsory acquisition proceed, the project
authority may compulsorily acquire the native title rights and
interests in accordance with that determination and this Bill.
Subclause (6) provides that if VCAT determines that the
proposed compulsory acquisition not proceed, or proceed
subject to conditions, the project authority must comply with
that determination except as permitted by subparagraphs (i), (ii)
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and (iii) of section 24MD(6B)(g) of the Native Title Act 1993
(Cth).
These subparagraphs allow for determinations not to be
complied with in limited circumstances.
Clause 130 provides for objections under section 24MD(6B) of the Native
Title Act 1993 (Cth) to be referred to VCAT.
Subclause (1) provides that an objector under section
24MD(6B)(d) of the Native Title Act to a proposed compulsory
acquisition of native title rights and interests may request the
project authority to refer the objection to VCAT.
Subclause (2) provides that such a request must be made within
5 months after notification of the proposed compulsory
acquisition.
Subclause (3) provides that where such a request is made, the
project authority must refer the objection to VCAT unless the
project authority decides not to proceed with the compulsory
acquisition.
Subclause (4) provides that the project authority is a party to a
proceeding in VCAT in respect of an objection.
Clause 131 contains the powers of VCAT in considering an objection
referred to it under clause 130.
Subclause (1) provides that VCAT may, in respect of an
objection, determine that the proposed compulsory
acquisition--
· proceed;
· proceed subject to conditions;
· not proceed.
Subclause (2) provides that in making a determination, VCAT
must take into account--
· the likely impact of the proposed compulsory
acquisition on the objector's registered native title rights
and interests;
· the measures proposed to be taken to minimise that
impact.
Subclause (3) provides that, to avoid doubt, a determination is
not an order of VCAT for the purposes of the Victorian Civil
and Administration Tribunal Act 1998.
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Clause 132 provides that if compensation paid under Division 2 does not
amount to compensation on just terms, the person is entitled to
such additional compensation as is necessary to ensure that
compensation is paid on just terms.
Division 3--Acquisition of land outside the project area
Clause 133 provides that the project authority may purchase land outside of
the project area for the purposes of an approved project.
Subclause (1) contains a general power to acquire land outside
of the project area for the purposes of the project.
Subclause (2) provides the project authority with the power to
acquire land outside of the project area for the purpose of
preservation, restoration or provision of native habitat.
Subclauses (3) and (4) allow the project authority to purchase
the whole of any parcel of land, even if only part of the parcel is
required for a purpose specified in subclause (1) or (2).
Subclause (5) allows the project authority to purchase the
balance of any parcel of land which is divested or surrendered
for the purposes of the project under clause 134.
Division 4--Provision of public land and council land
Subdivision 1--Surrender or divesting of public land and
Council land
Clause 134 allows the Governor in Council, on the recommendation of the
Project Minister, to publish an Order requiring public
authorities and Councils to surrender or divest land within the
project area. This section does not apply to reserved land under
the Crown Land (Reserves) Act 1978.
Subclause (5) requires a public authority or Council to notify
the Project Minister of any lease, licence or other interest in the
land that is being divested.
Subclause (6) provides that the Project Minister must give
notice to any public authority, Council or person affected by the
Order within 10 business days of the Order being published.
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Clause 135 provides for interests (if any) of a public authority or Council in
any land in the project area to be surrendered to the Crown.
Subclause (1) provides that the Project Minister may
recommend to the Governor in Council that these interests be
surrendered to the Crown upon receipt of a plan of land signed
by the Surveyor-General and being satisfied that the land shown
on the plan represents the land, the interests in which are being
surrendered.
Subclause (2) provides that this section does not apply to
reserved Crown land.
Subclause (3) provides that upon receiving the Project
Minister's recommendation, the Governor in Council may
declare that the interests be surrendered to the Crown.
Declaration is by Order published in the Government Gazette.
Clause 136 provides that, upon surrender or divestment under clauses 134
or 135 (stratum of land underground)--
· land is deemed to be unalienated land of the Crown
freed and discharged from all other interests;
· if any part of the land is a road, that land ceases to be a
road (unless expressly excluded by the Order in
Council) and all rights and interests in that part of the
land that is a road, cease;
· unless expressly excluded, if any part of the land is bed,
soil or banks of a river, all rights easements and
privileges in that land cease;
· the land is deemed to be temporarily reserved for the
purposes of the declared project under the Crown Land
(Reserves) Act 1978;
· subclause (6) provides that this section will have effect
despite anything to the contrary in section 175A of the
Water Industry Act 19949 (vests public waterways in
the Crown and the management and control in the
Melbourne Water Corporation) and section 10
(preserves to some extent the rights of the public in
relation to a public highway) and clause 1 of Schedule 5
of the Road Management Act 2004 (vests roads and
public highways in the Crown).
74
Clause 137 provides that the temporary reservation of land under clause 136
may be amended, revoked or otherwise dealt with under the
Crown Land (Reserves) Act 1978.
Subdivision 2--Removal of reservations on land
Clause 138 provides that this Division has effect despite anything to the
contrary in the Crown Land (Reserves) Act 1978 or the Land
Act 1958.
Clause 139 allows the Governor in Council, on the recommendation of the
Project Minister, to revoke the whole of any reservation over
land permanently or temporarily reserved under the Crown
Land (Reserves) Act 1978 which is entirely within the project
area.
Clause 140 allows the Governor in Council, on the recommendation of the
Project Minister, to revoke part of any reservation of land
temporarily or permanently reserved under the Crown Land
(Reserves) Act 1978, if that part of the land is within the
project area.
The Project Minister may only make such a recommendation on
receiving a plan of land signed by the Surveyor-General and
being satisfied that the land shown on the plan represents that
part of the reservation to be revoked.
Clause 141 provides that, upon the revocation of a reservation under
clause 139 or 140--
· the land is deemed to be unalienated land of the Crown,
freed and discharged from all trusts, limitations,
reservations, restrictions, encumbrances, estates and
interests;
· unless expressly excluded, all land being used as a road
ceases to be a road and all rights and interests in the
land in the road cease;
· unless expressly excluded, if any part of the land is bed,
soil or banks of a river, all rights, easements and
privileges in such land cease;
· that the appointment of any committee of management
is revoked in so far as it applies to the land;
· that any regulations made under section 13 of the
Crown Land (Reserves) Act 1978 are revoked in so far
as they apply to the land;
75
· that the land is deemed to be temporarily reserved for
the purposes of the approved project under the Crown
Land (Reserves) Act 1978.
Subclause (8) provides that this clause will have effect despite
anything to the contrary in section 175A of the Water Industry
Act 19949 (vests public waterways in the Crown and the
management and control in the Melbourne Water Corporation)
and section 10 (preserves to some extent the rights of the public
in relation to a public highway) and section 10 of, or clause 1 of
Schedule 5 to, the Road Management Act 2004.
Clause 142 provides that the reservation of land under clause 141 may be
amended, revoked or otherwise dealt with in accordance with
the Crown Land (Reserves) Act 1978.
Subdivision 3--Notification of reservations
Clause 143 provides that the project authority must notify the Minister
administering the Crown Land (Reserves) Act 1978 of any
reservation of land under Subdivisions 1 and 2 or Division 6.
Subdivision 4--Declaration of roads
Clause 144 allows Orders made under Subdivision 1 (to surrender or divest
public or Council land) or Subdivision 2 (to revoke a
reservation) to provide that any land that was a freeway, arterial
road, non-arterial State road or a municipal road either
continues to be or is declared to be a freeway, arterial road,
non-arterial State road or a municipal road.
Subclause (4) provides that any of the land which is the subject
of an Order under this clause is deemed to be declared a road of
the specified type under section 14 of the Road Management
Act 2004, from the date of the Order.
Subclause (5) provides, to avoid doubt, that this clause has
effect in addition to and not in derogation of the reservation of
the land that is taken to be in effect under this Division.
Subclause (6) provides that this clause has effect despite
anything to the contrary in any other Act.
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Subdivision 5--Compensation for surrendered or divested
or reserved land
Clause 145 provides that (subject to this Act and the Land Acquisition and
Compensation Act 1986) any person who held an estate or
interest in land prior to its surrender or divestment under
Subdivision 1 or 2 of Division 4, has a claim for compensation.
Subclause (2) provides that the Land Acquisition and
Compensation Act 1986 (excluding to sections 31, 32, 33, 34,
35 and 36) applies to the determination of compensation
payable under this clause, as if the Order divesting or
surrendering the land was a notice of acquisition.
Sections 31 to 36 of the Land Acquisition and Compensation
Act 1986 provide for the making of initial offers of
compensation.
Subclause (3) makes it clear that the any special suitability of
the land for the purposes of the project is not relevant to the
assessment of compensation.
Subclause (4) provides that the right to compensation under this
clause does not apply in respect of an estate or interest held by a
public authority or an estate or interest (other than freehold
interests) held by a Council.
Clause 146 provides that Councils which held an interest in land acquired
under Subdivision 1 or 2 of Division 4, have a claim for
compensation if the Council sustained any pecuniary loss or
incurred any expense as a consequence of the acquisition and a
claim for compensation is made within 2 years of the relevant
Order.
Subclause (3) provides that the value of the land must not be
taken into account when determining the loss sustained or the
expenses incurred by the Council.
Subclause (5) provides that sections 48 (form of claim) and
Parts 10 and 11 (dispute resolution) of the Land Acquisition
and Compensation Act 1986 apply to such claims for
compensation, as if they were claims under section 47(1) of that
Act (that is, compensation for entry and temporary occupation).
Clause 147 provides that, with the agreement of a Council entitled to
compensation, a project authority may transfer a building or
structure to land owned by the Council, in full or partial
settlement of a claim for compensation.
77
Clause 148 provides that, if the project authority is liable to pay
compensation to a Council, the project authority may require
the Council to take land that adjoins land owned by the Council
and that is owned by the project authority or is surplus land.
Subclause (2) provides that the value of the adjoining land must
be deducted from any amount to be paid by way of
compensation to the Council.
Subclause (3) provides that if the project authority and a
Council cannot agree as to the value of that land, the value must
be settled in the same manner and at the same time as the
compensation to be paid to the Council under clause 146.
Subdivision 6--Other matters
Clause 149 provides, for the avoidance of doubt, that no compensation is
payable by the Crown or the project authority in respect of
anything done or arising out of Division 4, expect as
specifically provided for in this Division.
Clause 150 provides that if a stratum of Crown land becomes project land,
any reservation or other right, title, trust, limitation, reservation,
restriction, encumbrance, estate or interest that was revoked or
surrendered in respect of the stratum, will continue to apply to
other strata of land to which it applied immediately prior to the
acquisition.
Division 5--Entry into possession of certain project land
Clause 151 provides that the project authority may enter into possession of
project land in accordance with this Part.
Clause 152 requires a project authority to diligently endeavour to obtain
agreement with the person in occupation of the project land as
to the terms on which the project authority will enter into
possession of the land.
Clause 153 provides that the project authority may enter into possession of
project land on 7 days' notice, unless the land was used as a
principal place of residence or business.
Clause 154 provides that, where project land is used as a principal place of
residence of business, the project authority must not enter into
the land (or part of the land) before the end of 3 months after
the land is acquired. The clause further provides that the
occupier is not liable to pay rent during this 3 month period.
78
Subclause (3) provides that the right to occupy without paying
rent ceases if the occupier ceases to occupy the land of their
own accord before the end of the 3 month period.
Subclause (4) allows existing notice periods to continue in
circumstances where the occupation of the land was already
under a notice period under the Land Acquisition and
Compensation Act 1986 or the Project Development and
Construction Management Act 1994.
Subclause (5) provides that if the occupier was in occupation of
the land before the reservation date under the Land Acquisition
and Compensation Act 1986 or the Project Development and
Construction Management Act 1994, and the period of
occupation had ended before the reservation date, the project
authority may enter into possession of the land at any time after
the reservation date after giving 7 days' notice in writing of its
intention to enter into possession to the occupier of the land.
Clause 155 allows the notice period under clause 154 to be abridged if--
· the Governor in Council certifies that, having regard to
the urgency of the case or other exceptional
circumstances and the public interest, it is not
practicable for the project authority to delay entry into
possession of the land.
Such a certificate must specify the date on which the
project authority must take possession. The project
authority must serve a copy of the certificate on the
occupier.
An occupier whose occupation of the land was abridged
under this certificate may claim compensation under
Division 1. Compensation may be paid to the person
entitled to it or the constituted attorney of that person;
· the project authority and the occupier have, with the
consent of the Project Minister entered into an
agreement in relation to the time of entry into
possession of the project land by the project authority;
or
· the land is underground land that has been acquired
under Division 6 and acquisition of the land will not
disturb the use of the surface of the land.
79
Clause 156 allows occupation of project land to be extended by agreement
between the project authority and the occupier of the land.
Such agreements must provide for the payment of rent.
Clause 157 provides that if a person continues to occupy land beyond the
period permitted under clause 154 or the reservation date,
without entering into an agreement under clause 156, that
person is taken to be in possession of the land under a tenancy
at will and is liable to pay the project authority fair market rent.
Clause 158 provides that any rent payable to the project authority under this
Subdivision may be recovered as a debt due to the project
authority in any Court of competent jurisdiction.
Clause 159 provides for the powers of the sheriff (acting under a warrant
issued by the project authority) in the event an occupier of
project land refuses to give up possession of the land or hinders
the project authority from entering the land.
Subclause (4) provides that the costs incurred in the issuing and
executing of the warrant must be paid by the person refusing to
give up possession.
Subclause (5) provides that the amount of costs and any rent
owed by that person must be deducted and retained by the
project authority from any compensation payable to that person.
Subclause (6) provides that if no compensation is payable or
compensation is insufficient, payment must be made on demand
or enforced by a warrant to seize that person's property.
Clause 160 excludes the Residential Tenancies Act 1997 from operation in
respect of any matter provided for in this Division.
Clause 161 provides for the service of any documents or notices required
under this Division.
Division 6--Acquisition of stratum of land below ground level
Clause 162 provides for the acquisition of a stratum of land below ground
level.
Subclauses (1) and (2) allow the Governor in Council, on the
recommendation of the Project Minister, to publish an Order in
the Government Gazette declaring that a stratum of land below
ground level in a project area is project land.
Subclause (3) provides that the Governor in Council may not
make the Order until receipt of appropriate plans of the stratum
to be acquired. Such plans must be signed by the Surveyor-
General and lodged in the Central Plan Office.
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Subclause (4) provides that, upon the publication of an Order
under this clause, the land specified in the Order vests in the
Crown and--
· is taken to be unalienated Crown Land, freed from all
trusts, limitations, reservations, restrictions,
encumbrances, estates and interests; and
· is taken to be temporarily reserved under the Crown
Land (Reserves) Act 1978 for the purposes of the
project.
Subclause (5) provides that a reservation of land under
subclause (4)(a) may be amended, revoked and otherwise dealt
with in accordance with the Crown Land (Reserves) Act 1978.
Clause 163 provides for claims for compensation by persons who held land
underground which, due to the operation of clause 162, has
vested in the Crown.
Subclauses (1) and (2) provide that a claim for compensation
exists for every person (except public authorities or Councils)
who had a legal or equitable interest in land acquired under
clause 162 which was held in fee simple.
Subclause (3) provides that the Land Acquisition and
Compensation Act 1986 (excluding sections 31, 32, 33, 34, 35
and 36 and 53) applies to the determination of compensation.
Sections 31 to 36 of the Land Acquisition and Compensation
Act 1986 provide for the making of initial offers of
compensation. Section 53 of that Act provides for the payment
of interest on compensation in certain cases.
Clause 164 provides that Subdivisions 5 and 6 of Division 4 apply to the
surrender or divestment of public land and Council land under
clause 162. Those Subdivisions deal with compensation
payable in respect of the surrender or divestment of other public
and Council land.
Clause 165 provides for compensation for denial of access.
Subclause (1) provides that the project authority is liable to pay
compensation if the effect of an Order taking an underground
stratum of land is that existing access to any land is denied.
Subclause (2) provides that compensation is not payable if there
is alternative access to the land, the project authority makes
provision for alternative access, the project authority has begun
compulsory acquisition of the land or if a claim for
compensation is not made within one year.
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Division 7--Management of land for project
Subdivision 1--General powers of project authority
Clause 166 provides that the project authority is deemed to be the
committee of management for the project land under the Crown
Land (Reserves) Act 1978. The Crown Land (Reserves) Act
1978 is modified for the purposes of the Bill by excluding
unnecessary provisions and providing that the project authority
has all the powers necessary to give effect to the Bill.
Clause 167 authorises the project authority to carry out, or authorise any
person to carry out, works on public land outside the project
area for the purposes of an approved project.
The Minister, public authority or Council that owns or manages
the land must be notified prior to the works being carried out or
authorised.
Such works may not be carried out or authorised on reserved
Crown land unless the works are not inconsistent with the
reservation or the land is subject to a licence or tenancy
agreement under section 17B of the Crown Land (Reserves)
Act 1978.
An authorisation under this clause may be subject to any
conditions that are not inconsistent with the purposes of the
approved project.
Clause 168 provides that if a project authority carries out or authorises
works under clause 167, the Project Minister may exercise
powers under section 17B of the Crown Land (Reserves) Act
1978 as if the Project Minister were the Minister and the project
authority was the Secretary.
Section 17B of the Crown Land (Reserves) Act 1978 provides
for (among other things) the granting of licences by the
Secretary (with the Minister's written approval) over certain
reserved Crown land for any purpose for up to three years.
Clause 169 provides that any person (except a utility) that has sustained any
pecuniary loss or incurred any expense as a direct, natural and
reasonable consequence of the entry onto, occupation of land
or carrying out of works under clause 167 has a claim for
compensation. Any claim for compensation must be made and
dealt with in accordance with section 47(1) of the Land
Acquisition and Compensation Act 1986, as if is was a claim
under section 47(1) of that Act.
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Clause 170 allows the project authority to use, or authorise the use of,
any Crown land for the purposes of an approved project.
Reserved Crown land may not be used under this section unless
the use is not inconsistent with the reservation of the land or the
reservation is revoked. An authorisation under this section may
be subject to any conditions that are not inconsistent with the
purposes of the approved project.
Clause 171 allows the project authority to carry out, or authorise the
carrying out, of any works on land within an easement acquired
under this Part.
Subdivision 2--Licences
Clause 172 provides that the Subdivision applies despite anything to the
contrary in section 175A of the Water Industry Act 1994
(vests public waterways in the Crown and the management and
control in the Melbourne Water Corporation), the Land Act
1958, the Crown Land (Reserves) Act 1978 or any other Act.
Clause 173 authorises the project authority to issue a licence on behalf of
the Crown to any person to enter on and use all or any part of
the project land that is Crown land for the purposes of the
approved project.
Clause 174 provides that the period of any licence must not exceed the
period of the approved project.
Clause 175 provides that a licence may be issued subject to any conditions
which are not inconsistent with the purposes of the approved
project.
Subdivision 3--Leases
Clause 176 provides that the subdivision applies despite anything to the
contrary in section 175A of the Water Industry Act 1994
(vests public waterways in the Crown and the management and
control in the Melbourne Water Corporation), the Land Act
1958, the Crown Land (Reserves) Act 1978 or any other Act.
Clause 177 provides that the Project Minister may (on behalf of the Crown)
grant a lease over any part of the land that is Crown land for the
purposes of the approved project.
Clause 178 provides that the term of a lease under clause 177 must be in
accordance with the purposes of an approved project and must
not be for a period of greater than 65 years.
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Clause 179 provides that a lease over Crown land that is project land may
be granted subject to any conditions which are not inconsistent
with the purposes of the approved project.
Subdivision 4--Other land powers
Clause 180 allows the Project Minister to determine that land is not
required for the project and is 'surplus land'. The Project
Minister must publish a copy of the determination in the
Government Gazette. Land that is leased or licensed may not
be declared surplus land.
Clause 181 provides for the disposition of surplus land that is Crown land.
Subclause (1) empowers the Project Minister, after consultation
with the Minister administering section 12 of the Land Act
1958, to sell, lease or license surplus land that is Crown land.
Subclause (2) provides that the proceeds of any sale under
subclause (1) (less any sale costs) must be paid into the
Consolidated Fund.
This clause will apply despite anything in the Land Act 1958.
Clause 182 provides for the removal of the reservation of surplus Crown
land before sale.
Subclause (1) provides that before selling any Crown land under
clause 181, the Project Minister, on receiving a plan of land
signed by the Surveyor-General and being satisfied that the land
on the plan represents the part of the reservation to be revoked
must recommend to the Governor in Council that the
reservation be revoked.
Subclause (2) provides that on receipt of the Project Minister's
recommendation, the Governor in Council, by Order published
in the Government Gazette may revoke--
· any Order in Council reserving the land;
· any Crown grant, certificate of title or folio of the
Register issued or created with respect to the land--
to the extent that the Order in Council, Crown grant, certificate
of title or folio relates to the land shown on the plan.
Clause 183 allows the Governor in Council, on the recommendation of the
Project Minister, to reserve specified surplus land for a new
purpose by Order published in the Government Gazette.
The Order must state the purpose for which the land is to be
reserved.
84
Upon the publication of an Order reserving land under this
clause--
· the land is taken to be unalienated Crown land freed and
discharged from all trusts, limitations, reservations,
restrictions, encumbrances, estates and interests;
· the appointment of any existing committee of
management is revoked;
· any existing regulations under section 13 of the Crown
Land (Reserves) Act 1978 are revoked to the extent
that they apply to the land; and
· the land is taken to be temporarily reserved for the
purposes stated in the Order.
Clause 184 allows the project authority to enter into an agreement with
another person concerning the use or development of any
surplus land, upon or in anticipation of disposing of the whole
of its interest in the land.
Such agreements will have effect as if they were agreements
made under section 173 of the Planning and Environment Act
1987.
Clause 185 provides, for the avoidance of doubt, that the project authority
may sell, lease or licence any surplus land that it holds in fee
simple.
Division 8--Road management
Subdivision 1--Powers in relation to roads
Clause 186 provides the project authority with all the road-related powers
necessary to deliver the approved project. This includes the
power to open, discontinue, construct, relocate or realign any
road and close any road to traffic.
The Governor in Council, by Order published in the
Government Gazette, may provide for any vesting or divesting
of lands necessary to exercise these powers.
Clause 187 requires the project authority to advise the relevant coordinating
road authority under the Road Management Act 2004 before
exercising any power under clause 186.
85
Clause 188 provides that a coordinating road authority under the Road
Management Act 2004 must not exercise its powers
inconsistently with the purposes of an approved project or
with the exercise by the project authority of its powers under
clause 186.
Clause 189 provides for the effect of road related decisions under
clause 186. A decision has no effect until the project authority
causes notice of it to be published in the Government Gazette
and in a newspaper circulating generally throughout the area
affected by the decision.
Upon publication of a decision to discontinue, realign or
relocate a road--
· the land over which that road ran ceases to be a road;
· all rights, easements and privileges existing or claimed
in the land claimed by the public or by any body or
person, cease;
· the land is taken to be unalienated land of the Crown;
· (if the decision so provides) the land is taken to be
temporarily reserved under the Crown Land
(Reserves) Act 1978.
Subclauses (3) and (4) provide that the reservation may be dealt
with under the Crown Land (Reserves) Act 1978 and that the
section applies despite anything to the contrary in section 10 of
the Road Management Act 2004 (rights of the public in
relation to a public highway) or any other Act.
Clause 190 empowers the project authority to temporarily close a road to
traffic for the purposes of an approved project if the project
authority considers it necessary to do so for works on the road
or neighbouring land to be carried out.
Clause 191 provides for the payment of compensation by the project
authority where a decision under this subdivision results in the
denial of access to any land.
Compensation is not payable where--
· there is adequate existing alternative access to the land;
or
· the project authority provides, or agrees to provide,
adequate alternative access to the land; or
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· a claim for compensation is not served on the project
authority within one year.
In determining whether alternative access to the land is
adequate, no regard is to be had as to which stream of traffic has
access to the land. Compensation is based on the loss of value
as a direct result of the loss of access to that land. Relevant
provisions of the Land Acquisition and Compensation Act
1986 apply with necessary modification to any compensation
under this section and section 127 of the Road Management
Act 2004 does not apply.
Section 127 of the Road Management Act 2004 provides for
compensation for denial of access where similar powers are
exercised under that Act.
Clause 192 provides that a project authority is liable to pay compensation to
a utility that has been adversely affected by a decision under
this Subdivision.
Subdivision 2--Road declaration powers
Clause 193 provides that the Project Minister may from time to time declare
any land in the project area to be a road.
The declaration must state whether the road is to be treated as a
freeway, an arterial road, a non-arterial State road or a
municipal road.
The notice must be published in the Government Gazette.
Upon gazettal, the specified road is--
· declared under section 14 of the Road Management
Act 2004;
· is open for use by the public and for use by the public
for passage with vehicles;
· and a highway within the meaning of the Road Safety
Act 1986.
Clause 194 provides that the Project Minister, by Order published in the
Government Gazette, may revoke (in whole or in part) a
declaration under clause 193 or a declaration under the Road
Management Act 2004 of any roads in the project area.
Upon publication of the Order, the road (or relevant part of the
road) ceases to be a freeway, arterial road, non-arterial State
road or municipal road.
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Clause 195 provides that a road authority that is not the project authority
may not declare roads in the project area if it is not the project
authority. This section does not affect the status of a road that
was existing on land before the land became part of the project
area.
Division 9--Restricted access areas
Clause 196 provides the project authority with the power to establish
"restricted access areas" in the project area or on land
temporarily occupied under section 75 of the Land Acquisition
and Compensation Act 1986 through the use of fencing,
barriers or signage.
As soon as practicable after establishing the restricted access
area, the project authority must cause a notice of that fact to be
published in the Government Gazette.
Clause 197 empowers the Project Minister, after consultation with the
project authority, to appoint authorised officers. Such persons
must be employees of the Crown or a public sector body and
have, in the project authority's opinion, the necessary
competence, training or expertise to perform a function or
exercise a power under this Division.
Appointments must be in writing, specify the terms and
conditions of appointment and specify the restricted access
area (or part of it) where the person may exercise the powers,
functions and duties of an authorised officer.
Clause 198 provides for the issuing of identity cards to authorised officers.
Identity cards must contain a photograph of the person, state the
full name of the person to whom it is issued and state that the
person is an authorised officer for the purposes of this Division.
An authorised officer must produce their identity card when
exercising a power under the Act, upon request. Further, if an
officer fails to produce their identity card as required, the person
is not authorised to exercise those functions in relation to the
person making the demand.
The clause also provides that the identity card is to be taken as
evidence that the person is an authorised officer.
Clause 199 empowers the project authority to provide authorisations to
enter and remain in a restricted access area to prepare for or
conduct activities for the purposes of an approved project or to
carry out activities associated with or ancillary to those
purposes.
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Authorisations may be provided to a class of person or classes
of persons.
Authorisations must be made by declaration or by issuing a
certificate in writing. A certificate or declaration must specify
certain matters and may provide for certain matters.
A certificate or declaration must be published in the
Government Gazette.
Clause 200 empowers the project authority to warn any person (other than
the owner of the land or a person authorised in writing by the
owner) to leave any part of land that is part of the project area
or occupied land for the purposes of an approved project.
For the purposes of section 9(1) of the Summary Offences Act
1966, the project authority is taken to be the occupier of the
land.
Section 9(1) provides for a number of offences relating to wilful
trespass.
Clause 201 provides that a project authority, a member of the police force
or an authorised officer may warn any person that is not
authorised under clause 199 or otherwise authorised under this
Act to be in a restricted access area to leave any part of the
restricted access area.
For the purposes of section 9(1) of the Summary Offences Act
1966, the project authority is taken to be the occupier of the
land.
Section 9(1) provides for a number of offences relating to wilful
trespass.
Clause 202 provides that a member of the police force or an authorised
officer may direct any person who is not authorised under
clause 199 or otherwise authorised under the Act to be in a
restricted access area not to enter the restricted access area.
Clause 203 is an offence provision with a maximum penalty of 10 penalty
units. It provides that a person must not enter into or remain in
any part of a restricted access area unless--
· the person has a certificate of authorisation issued under
clause 199; or
· there is a declaration under clause 199 that applies to the
person; or
· the person is otherwise authorised under this Act; or
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· the person is a member of the police force; an employee
in the public service or an officer or employee of a
public sector body acting in the performance of their
duties; or
· the person is the owner of the land or a person
authorised in writing by the owner.
A person does not commit an offence under this clause if they
have a reasonable excuse for entering into or remaining in the
restricted access area.
Clause 204 empowers members of the police force and authorised officers
to require person in restricted access areas to produce
authorisation upon demand.
Subclause (1) is an offence provision with a maximum penalty
of 5 penalty units. This subclause provides that a person in a
restricted access area must, when asked to do so by a member of
the police force, or an authorised officer--
· produce a certificate of authorisation under clause 199
or other evidence of their authority to be in the area; or
· give their name and address.
Subclause (2) provides that a member of the police force or an
authorised officer must--
· produce proof of their identity and official status before
exercising the power under subclause (1) unless (if a
member of the police force) they are in uniform;
· inform the person that they are empowered to require
the production of evidence of their authority to enter or
remain in the restricted access area or to ask for their
name and address and that it is an offence to fail to
comply with that requirement; and
· make all reasonable attempts to ensure that the person
understands the requirement to produce a certificate of
authorisation or provide their name and address.
Subclause (3) provides that it is not an offence for a person to
fail to comply with subclause (1) where the authorised officer
or the member of the police force did not comply with
subclause (2).
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Clause 205 makes it an offence for a person, without reasonable excuse, to
hinder or obstruct an authorised officer who is exercising a
power under this Division. Maximum penalty is 10 penalty
units.
Clause 206 is an evidentiary provision. It provides that in any proceedings
under this Act, a certificate signed on behalf of the project
authority, certifying that an area was a restricted access area is
evidence of the facts stated in the certificate.
Division 10--Other matters
Clause 207 provides that section 3 of the Cultural and Recreational
Lands Act 1963 does not apply to the compulsory acquisition
of land under this Part.
Section 3 prohibits the compulsory acquisition of recreational
lands (as defined under that Act).
PART 7--INTERFACE WITH UTILITIES
Division 1--Interpretation
Clause 208 contains the definitions relevant to Part 7. In particular--
· approved utility agreement means an agreement based
on model guidelines, which forms the basis of an
expert's decision where no agreement is reached
between the parties.
· expert means a person appointed by the Minister, either
nominated by the parties, or where they cannot agree,
chosen directly by the Minister (based on stipulated
minimum requirements).
· notified utility infrastructure means utility
infrastructure that has been notified by a utility in
response to a request for notification.
Clause 209 sets out the meaning of unnotified infrastructure, which is
either--
· infrastructure, the location of which is not known by the
project authority, because it could not be identified even
after taking all reasonable steps or because the utility
failed to respond to a notice within 30 days; or
· infrastructure that has been incorrectly described or its
location incorrectly given by the utility.
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Clause 210 sets out the meaning of a utility agreement, which is an
agreement governing the rights and obligations of a project
authority and a utility in relation to--
· the location of utility infrastructure owned, operated or
controlled by the utility within the project area; or
· project construction work affecting utility infrastructure
owned, operated or controlled by the utility.
While it is not mandated that a utility agreement must clarify
the rights and obligations between the utility and project
authority in relation to unnotified infrastructure, for reasons of
clarity, it is in the best interests of both parties that it does so.
In addition, Division 5 of the Bill may give rise to additional
costs and liabilities for a utility where a utility agreement does
not cover unnotified infrastructure.
Division 2--Utility infrastructure notification and identification
Clause 211 sets out the notification requirements in relation to utilities.
Subclause (1) provides that prior to commencing project
construction work, a project authority must give notice of the
proposed work to all utilities.
Subclause (2) sets out the things that a notice must contain.
The notice must state that each utility has 30 business days to
notify the project authority, in writing, of the location and
nature of all utility infrastructure owned, operated or controlled
by the utility within the project area and whether the
infrastructure will be affected by the proposed works.
The consequence of a project authority failing to notify a utility
is that the project authority cannot then rely on Part 7 of the Bill
in relation to utility infrastructure located within the project area
and must instead rely on standard, commercial negotiations and
common law risk allocation where the project authority
damages or interferes with that utility's infrastructure.
Subclause (3) requires that a notice must also be published in
the Government Gazette.
Clause 212 sets out the requirements for complying with a notice.
Subclause (1) obliges any utility receiving a notice under
clause 211 to respond to the project authority within 30 business
days. Where it fails to do so, all utility infrastructure owned by
that utility will be treated as unnotified infrastructure.
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Subclause (2) provides that for the purposes of complying with
a clause 211 notice, a utility may provide plans that show the
location of the infrastructure within an area of 3 square metres
or less or plans that show 2 or more known location of the
utility infrastructure, such that the project authority is able to
ascertain its precise location.
Division 3--Negotiation of utility agreements
Clause 213 gives either the project authority or the utility, at the end of the
30-day notification period, the right to trigger a negotiation
period for the purposes of entering into a utility agreement.
Clause 214 obliges the parties to use all reasonable endeavours to negotiate
a utility agreement within 50 business days.
Clause 215 stipulates that where the parties have not finalised a utility
agreement within the 50-day period, both parties must notify the
Project Minister and the Utilities Minister.
There is no automatic trigger for the commencement of the next
step. This allows the parties, if they both agree, to extend either
the notification or negotiation periods, rather than being
automatically forced to commence negotiations or expert
determination (as the case may be) at the end of the stipulated
minimum period.
Division 4--Dispute resolution if there is no agreement
Clause 216 allows either party, if they have not finalised a utility agreement
within the 50-day negotiation period, to give notice that a
dispute exists.
Clause 217 obliges both parties to use all reasonable endeavours to agree on
an expert.
Clause 218 provides that, within 5 business days of a notice of dispute
being issued under clause 216, if the parties have agreed on an
expert, they must inform the Minister of the name of that expert
and if they have not agreed, they must inform the Minister of
that outcome.
Clause 219 obliges the Minister to appoint an expert nominated by both
parties within 5 business days of being informed of the name of
that expert and notify the parties in writing of that appointment.
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Clause 220 provides that, where the parties have not agreed on an expert,
the Minister will appoint one, within 5 business days of being
notified that the parties could not agree on an expert, whose
minimum qualifications must be (cumulatively)--
· at least 8 years experience either in the construction
industry or working for utilities; and
· at least 5 years experience as an arbitrator or mediator;
and
· reputable character; and
· availability to hear the dispute within the time frame set
out in the Bill--
and the Minister will notify the parties in writing of that
appointment.
Clause 221 provides that an expert appointed by the Minister under either
clause 219(1) or 220(1) will be appointed by instrument and
will be paid fees, allowances and reasonable costs.
Clause 222 gives the expert immunity against personal liability for anything
done reasonably in discharging the expert's obligations under
Division 4.
Clause 223 obliges the expert to commence the dispute resolution process
within 5 business days of their appointment.
Clause 224 allows the expert an additional 5 business days to finalise the
process for resolving the dispute. Unless otherwise directed in
writing by the expert, submissions by the parties must be in
writing and the parties must provide a draft utility agreement
that identifies the matters in relation to which the parties
disagree.
Clause 225 allows the parties 30 business days for making submissions.
Clause 226 provides the expert a further 15 business days within which the
expert must hand down their decision, in the form of a utility
agreement, having regard to the model utility agreement
guidelines.
Unlike a normal expert determination, where the authority of
the expert derives from the contract in dispute and the expert is
called to make a decision on certain aspects of that existing
contract, in this case no agreement will be in existence, so the
authority of the expert must derive from the Bill itself.
Division 4 is only triggered where the parties have failed to
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execute a utility agreement. Therefore, an expert appointed
under Division 4 is required to do more than merely resolve a
dispute--rather the expert must create the very agreement that
will govern the rights and obligations between the parties going
forward. While the model utility agreement guidelines will
form the basis for this agreement, the extent to which an expert
needs to fill in the gaps will depend on the extent to which the
parties have been unable to reach agreement.
Clause 227 stipulates that a utility agreement may not be terminated unless
agreed by both parties or as expressly provided for in the
agreement.
Clause 228 allows the expert to engage lawyers and other experts to assist
them in making their decision.
Clause 229 sets out the procedure for allocation and payment of the expert's
costs.
Subclause (1) requires the parties to indemnify the Project
Minister for the expert's costs. As the Project Minister will
engage the expert, the allocated costs will then become a debt
due by the parties and owed to the Project Minister, recoverable
in court.
Subclause (2) allows the expert to make a determination as to
the apportionment of liability between the parties for the
expert's costs.
Subclause (3) requires that the allocation in subclause (2) be fair
and reasonable.
Subclause (4) allows the expert, in determining what is fair and
reasonable, to have regard to whether a party used all
reasonable endeavours to negotiate a utility agreement during
the initial negotiation period and the reasonableness of each
party's submissions.
Subclause (5) stipulates that subclause (4) does not limit what
the expert can have regard to in determining what is fair and
reasonable.
Subclause (6) provides that a decision by the expert as to the
allocation of costs must set out the reasons for that decision and
a copy must be given to the Project Minister and the parties.
Clause 230 allows the parties to appeal a determination of an expert to the
Victorian Supreme Court, on a question of law, within 10 days
of a determination being handed down by the parties, but
otherwise the decision of the expert will be final and binding.
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Clause 231 requires the model utility agreement guidelines to be prepared
by the Project Minister. These guidelines must include a draft
agreement containing terms and conditions in relation to costs,
timing, risk allocation, minimum standards, means by which
disruption to utility services will be minimised and final
certification of works carried out by a project authority on,
around or otherwise affecting utility infrastructure.
The guidelines must be published by the Project Minister in the
Government Gazette and will take effect on the day they are
published in the Government Gazette.
Division 5--Unnotified utility infrastructure
Clause 232 applies if a project authority discovers unnotified infrastructure
within the project area.
Subclause (1)(a) stipulates that clause 232 applies to unnotified
infrastructure under clause 209(a), where the project authority
has been unable to identify the utility during the initial
notification period or the utility failed to respond.
Subclause (1)(b) stipulates that clause 232 applies to unnotified
infrastructure under clause 209(b), where the utility
infrastructure has been incorrectly identified by the relevant
utility and there is no utility agreement dealing with that
situation.
Subclause (2) stipulates that in the case of subclause 1(a), the
project authority must give notice to all utilities.
Subclause (3) stipulates that in the case of subclause 1(b), the
project authority must give notice to the utility that controls the
relevant infrastructure.
Subclause (4) provides that a notice must identify the
infrastructure in question and its location and state that the
project authority intends to remove, relocate or protect the
infrastructure and that the owner has 5 business days in which
to respond and to agree to works being undertaken and to enable
those works to be undertaken or to undertake agreed works,
otherwise the utility becomes liable for costs incurred by the
project authority as a result of delays to the project.
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Clause 233 sets out the process for the removal, relocation or protection of
unnotified infrastructure.
Subclause (1) stipulates that clause 233 applies where--
(a) a project authority does not receive any information
from a utility under clause 232;
(b) the utility has responded but the parties have failed to
reach agreement within 5 business days as to the works
to be carried out; or
(c) the utility has not carried out the agreed works within
5 business days.
Subclause (2) allows a project authority, in the case of (a)
above, to remove redundant infrastructure, or in all other cases
either relocate the infrastructure or carry out works to protect it.
Subclause (3) obliges the project authority, in the case of (b)
and (c) above, to give the utility a reasonable estimate of costs
to be incurred each day as a result of delays to the project and,
with the consent of the utility, to remove redundant
infrastructure, or in all other cases either relocate the
infrastructure or carry out works to protect or preserve it.
Subclause (4) obliges the project authority to apply standards
that result in the infrastructure having the same or similar
technical capability and at least the same operating life.
Subclause (5) provides that the project authority is liable for all
costs of relocating, removing or protecting the infrastructure
that are fair and reasonable and on the basis that the utility
makes all reasonable efforts to mitigate its loss.
Subclause (6) provides that the project authority is not liable for
any loss suffered by a utility, in relation to interruption or
cessation of that utility's services.
Subclause (7) provides that the project authority is not liable
to any other person for loss arising from interruption to or
curtailment of services.
Subclause (8) provides that the utility it liable to the project
authority for all costs incurred by the project authority as a
result of a delay in the carrying out of the works that are fair
and reasonable and on the bases that the utility makes all
reasonable efforts to mitigate its loss.
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Clause 234 applies if a project authority causes damage to unnotified utility
infrastructure.
Subclause (1) stipulates that clause 234 applies to all unnotified
infrastructure damaged during the course of project construction
works.
Subclause (2) obliges the project authority, if it cannot identify
the relevant utility, to notify all utilities as soon as possible of
the damage.
Subclause (3) provides that if the project authority has identified
the utility, the project authority must identify that utility.
Subclause (4) provides that the project authority must repair any
damage caused to the utility infrastructure and may relocate or
remove the infrastructure.
Subclause (5) provides that the project authority is liable for all
losses incurred by the utility as a result of the damage caused to
the infrastructure.
Subclause (6) provides that the project authority is not liable to
any other person for loss arising from interruption to or
curtailment of services.
Subclause (7) provides that the utility is liable to the project
authority for costs incurred by the project authority arising out
of delay to the project in having to repair, protect or relocate the
damaged infrastructure.
Subclause (8) provides that if the damage results in an
emergency situation, the project authority must take reasonable
steps and the utility will be liable for costs incurred by the
project authority in taking those steps.
PART 8--ASSESSMENT COMMITTEES
Division 1--Establishment of assessment committees
Clause 235 provides for the establishment of one or more assessment
committees by the Planning Minister for the purpose of--
· assessing comprehensive impact statements in
accordance with Part 3; and
· making recommendations to the Minister in relation to
comprehensive impact statements.
Establishment is to be done by written instrument.
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Clause 236 sets out the functions of an assessment committee.
Subclause (1) provides that the functions are--
· to consider any matters referred to it by the Planning
Minister relating to a declared project in accordance
with the terms of reference; and
· if required by the Planning Minister under Part 3, to
undertake public consultation on those matters; and
· if required by the Planning Minister, to conduct
preliminary hearings or formal public hearings; and
· to report and make recommendations to the Planning
Minister as to whether or not to grant any applicable
approval that is required for a declared project to be
developed and the conditions (if any) of such approval.
Subclause (2) provides that subject to this Part, when carrying
out its functions in relation to a matter referred to it by the
Planning Minister, an assessment committee may inquire into
and inform itself in relation to the matter in any manner it sees
fit.
Clause 237 provides for the membership of assessment committees.
Subclause (1) provides that an assessment committee has 3 or
more members appointed by the Planning Minister.
Subclause (2) provides that the Planning Minister must not
appoint a person to be a member of an assessment committee
unless satisfied that the person has expertise relevant to the
assessment of the matters that are referred to the committee.
Subclause (3) provides that the Planning Minister must appoint
one of the members to be chairperson of the committee.
Clause 238 provides for the terms under which members of assessment
committees are to be appointed.
Subclause (1) provides that a member of an assessment
committee is appointed on the terms and conditions set out in
the instrument of appointment.
Subclause (2) provides that the Planning Minister may fix fees
and allowances for all members of an assessment committee or
for particular members or classes of members.
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Subclause (3) provides that each member of an assessment
committee is entitled to receive any fees and allowances fixed
by the Planning Minister in respect of that member unless the
person is an employee in the public Service within the meaning
of the Public Administration Act 2004.
Subclause (4) provides that the Public Administration Act
2004 (other than Part 3 of that Act) applies to a member of an
assessment committee in respect of the office of member.
The Public Administration Act 2004 in particular prescribes
public sector values and employment principles.
Clause 239 provides for the resignation of members of assessment
committees. The clause provides that a member of an
assessment committee may resign by letter signed by the
member and delivered to the Planning Minister.
Clause 240 provides for procedures at assessment committee meetings.
Subclause (1) provides that the chairperson of an assessment
committee must preside at a meeting of the committee at which
the chairperson is present.
Subclause (2) provides that where the chairperson is absent
from a meeting, the chairperson must nominate a person to
preside at the meeting within a reasonable time before the
meeting.
Subclause (3) provides that a quorum of the assessment
committee is a majority of the members of the committee for
the time being.
Subclause (4) provides that at a meeting of an assessment
committee, a decision of the committee is a decision of the
majority of the members present and voting at the meeting.
If voting is equal, the person presiding at the meeting has a
second or casting vote.
Subclause (5) provides that subject to the Bill and any
directions by the Planning Minister, an assessment committee
may regulate its own proceedings and any other hearings or
consultations it is required to undertake under the Bill.
Clause 241 prescribes procedures for consultation by assessment
committees.
Subclause (1) provides that, if required by the Planning
Minister, an assessment committee must undertake public
consultation in accordance with Part 3 of the Act and this clause
and any direction given by the Planning Minister in relation to a
matter referred to it by the Minister.
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Subclause (2) provides that such a requirement must specify the
persons or classes of persons that are to be consulted and
whether or not the committee is required or authorised to hold a
conference with the persons to be consulted.
Subclause (3) provides that the assessment committee must
ensure that all persons invited to attend a conference are advised
in writing of the time and place at which the conference is to be
held within a reasonable time before the conference.
Subclause (4) provides that if a public consultation is
undertaken, the assessment committee must ensure that the
relevant project proponent is--
· advised of the consultation itself;
· given notice of the time and place of any conferences
held as part of the consultation; and
· invited to attend any conference or other further
consultation that takes place.
Subclause (5) provides that a conference held under this clause
must be presided over by the chairperson of the committee or an
assessment committee member nominated by the chairperson
for that purpose.
Subclause (6) provides that the committee must consider the
discussions and resolutions of any conference held under this
section when it is making its report and recommendations.
Clause 242 provides for the disclosure of interests by members of
assessment committees.
Subclause (1) provides that before an assessment committee
considers any matters referred to it, each member of the
committee must produce to the committee a signed statutory
declaration that states whether the member has a direct or
indirect pecuniary interest in relation to any matters referred to
the committee.
Subclause (2) provides that if, during the consideration of
matters before the committee, a member becomes aware of
having a direct or indirect pecuniary interest in a matter being
considered, the member must, as soon as practicable after the
relevant facts have to come to his or her knowledge, disclose
the nature of his or her interest at the meeting of the committee.
Subclause (3) provides that the production of such a declaration
must be recorded in the minutes of the meeting at which it was
produced or disclosed.
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Subclause (4) provides that if a member produces a statutory
declaration stating that the member does have a direct or
indirect pecuniary interest in relation to any matter referred to
the committee, or a member discloses a direct or indirect
pecuniary interest to the committee, the member must not--
· take any further part in any consideration or discussion
of the matter; or
· take part in any vote on the matter; or
· be counted for the purposes of a quorum.
Division 2--Hearings
Clause 243 provides for the giving of directions about hearings.
Subclause (1) provides that an assessment committee may give
directions about the times and places of hearings, matters
preliminary to hearings and the conduct of hearings.
Subclause (2) provides that an assessment committee may
refuse to hear any person who fails to comply with a direction
of the assessment committee.
Clause 244 provides for hearings to be held in public unless any person
making a submission objects to making the submission in
public and the assessment committee is satisfied that the
submission is relevant and of a confidential nature.
Clause 245 provides general procedures for assessment committee hearings.
In hearing submissions, an assessment committee--
· must act according to equity and good conscience
without regard to technicalities and legal forms; and
· is bound by the rules of natural justice; and
· is not required to conduct the hearing in a formal
manner; and
· is not bound by the rules or practice as to evidence but
may inform itself on any matter in any way it thinks fit
and without notice to any person who has made a
submission.
Subclause (2) provides that an assessment committee may
require a person to produce any documents relating to any
matter being considered by the committee under the Bill which
it reasonably requires and may require an applicable law
decision maker to provide them with advice on a matter or issue
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they consider relevant for the purpose of making an assessment
committee recommendation.
Subclause (3) provides that an assessment committee may
prohibit or regulate cross-examination in any hearing, in
accordance with any direction given by the Planning Minister.
Subclause (4) provides that an assessment committee may hear
evidence and submissions from any person who has made a
submission in relation to the relevant comprehensive impact
statement under Part 3.
Subclause (5) provides that submissions and evidence may be
given to the committee orally or in writing or partly orally and
partly in writing.
Clause 246 provides that a person who has a right to be heard by an
assessment committee or who is called by an assessment
committee may appear and be heard in person or may be
represented by any other person.
Clause 247 provides that an assessment committee may report and make
recommendations on a submission without hearing the person
who made the submission if the person is not present or
represented at the time and place appointed for the hearing of
the submission.
Clause 248 provides that an assessment committee may consider two or
more submissions together if the submissions concern the same
land or the same or a related matter.
Clause 249 provides that an assessment committee may from time to time
adjourn a hearing to any times and places and for any purposes
it thinks necessary and on any terms as to costs or otherwise
which it thinks just in the circumstances.
Clause 250 provides that an assessment committee may continue to hear
submissions and make its report and recommendations despite
any defect, failure or irregularity in--
· the preparation of a comprehensive impact statement;
· any failure to comply with Division 2 or 5 of Part 3 in
relation to the preparation of a comprehensive impact
statement.
Clause 251 provides that an assessment committee may take into account
any matter it thinks relevant in making its report and
recommendations, subject to any directions given to it by the
Planning Minister.
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Clause 252 provides for certain offences in relation to assessment
committee hearings; each with a maximum penalty of
10 penalty units. The offences are--
· insulting, assaulting or obstructing an assessment
committee member while the member is performing
functions or exercising powers as a member;
· insulting, assaulting or obstructing any person attending
a hearing before an assessment committee;
· misbehaving at a hearing before an assessment
committee;
· repeatedly interrupting a hearing before an assessment
committee; or
· without lawful excuse disobeying a direction of an
assessment committee.
Clause 253 provides that a project proponent must pay for, or reimburse,
any reasonable costs and expenses incurred by or for an
assessment committee in carrying out its functions under this
Part in relation to the relevant declared project, unless the
Planning Minister otherwise directs.
PART 9--GENERAL
Clause 254 provides powers to the Secretary to the Department of Planning
and Community Development to delegate powers (by
instrument) to any employee of the Department any of the
powers, discretions or functions which are given to the
Secretary under this Bill except for this power of delegation and
any power, discretion or function which the Secretary exercises
or performs as a delegate.
Clause 255 provides for the administration and enforcement of the Building
Act 1993 under this Bill.
Subclause (1) provides that the Project Minister may, by Order
published in the Government Gazette, declare that the
administration and enforcement of the Building Act 1993 and
regulations under that Act in relation to an approved project is
to be carried out by the project authority or any other person or
body specified in the Order and in accordance with the terms
and conditions of the Order.
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Subclause (2) provides that the Building Act 1993 and
regulations apply as if any reference to a council or a relevant
building surveyor or a municipal building surveyor were a
reference to the project authority or the relevant person or body
specified in the Order.
Clause 256 provides for the exemption of land and agreements related to
approved projects from certain fees, taxes and duties.
Subclause (1) provides that no duty is payable under the Duties
Act 2000 in respect of an agreement made for the purpose of an
approved project or any agreement entered into by the State for
the purpose of an approved project.
Subclause (2) provides that no land tax is payable in respect of
leased land.
Subclause (3) provides that no land tax is payable by a licensee
in respect of licensed land.
Subclause (4) provides that no fee is payable to the Registrar of
Titles in respect of a dealing lodged with the Registrar relating
to surplus land or project land disposed of under Subdivision 4
of Division 7 of Part 6.
Clause 257 provides for the exemption of project land from local
government rates and charges.
Subclause (1) provides that leased land and licensed land are
not rateable land within the meaning of section 154 of the Local
Government Act 1989.
Subclause (2) provides that section 221 of the Local
Government Act 1989 does not apply in respect of land in a
project area. Section 221 empowers local councils to levy
service charges over non-rateable land.
Clause 258 provides limitations on the powers of councils to make local
laws.
Subclause (1) provides that a local council must not make a
local law under the Local Government Act 1989 for or with
respect to--
· a project area;
· the carrying out of works for the purposes of an
approved project (including the timing of works for and
standards of construction of those works); or
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· restricting the use of any road for access to or egress
from licensed land or a temporary construction site for
the carrying out of works for the purposes of an
approved project; or
· the retention of trees, vegetation or earthworks in
relation to an approved project.
Subclause (2) provides that without limiting subsections 111(2),
(3) and (4) of the Local Government Act 1989, a local law,
whether made before or after the commencement of this clause,
is inoperative to the extent that it makes provision for or with
respect to or affecting any matter or thing referred to in
subclause (1).
Subclauses (2), (3) and (4) of section 111 of the Local
Government Act 1989 provide that local laws must not be
inconsistent with Acts of Parliament or regulations and are
inoperative to the extent of any such inconsistency. Further a
council must not make a local law that duplicates or is
inconsistent with any planning scheme in force in the municipal
district of the Council.
Subclause (3) provides that without limiting subclause (2), a
local law is inoperative to the extent that it is inconsistent with
the exercise by a project authority of its powers or functions
under this Bill or any other Act or under a licence or a lease
issued or granted under this Bill.
Subclause (4) provides that without limiting subclause (2), a
local law is inoperative to the extent that it has the effect of, or
is exercised in a manner directed at, preventing, hindering or
disrupting a project authority or the holder of a licence or lease
issued or granted under clause 173 or 177 in the performance of
an obligation or the pursuit of a right for the purposes of an
approved declared project, if the Governor in Council, by Order
published in the Government Gazette, declares it to be
inoperative.
Subclause (5) provides that, in this clause, temporary
construction site means any Crown land approved under
section 170 or any land entered under the powers in section 74
or 75 of the Land Acquisition and Compensation Act 1986
for the purposes of an approved declared project.
Clauses 74 and 75 of the Land Acquisition and
Compensation Act 1986 provide for the entry onto and
temporary occupation of certain land.
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Clause 259 provides for certain actions being performed by the Registrar of
Titles.
Subclause (1) provides that, on being requested to do so and on
delivery of any relevant instrument or document (but without
production of a duplicate Crown grant or certificate of title), the
Registrar of Titles must, as soon as practicable--
· make any recordings in the Register that are necessary
because of the operation of this Bill; and
· register any lease made in accordance with the purposes
of an approved project.
Subclause (2) provides that Division 4 of Part IV of the
Transfer of Land Act 1958 applies to any acquisition of land
by a project authority under Part 6 as if the Crown were the
acquiring authority rather than the authority.
Division 4 of Part IV of the Transfer of Land Act 1958
provides a process for amending the land register when land is
compulsorily acquired.
Clause 260 provides for the exclusion of proportionate liability under the
Wrongs Act 1958.
Subclause (1) provides that, despite anything to the contrary in
Part IVAA of the Wrongs Act 1958, that Part does not--
· prevent a project authority and another person, or a
project contractor and another person, from making
express provision for their rights, obligations and
liabilities under a contract relating to an approved
project with respect to any matter to which that part
applies;
· limit or otherwise affect the operation of any such
express provision in such a contract.
Subclause (2) provides that subclause (1) extends to any
provision in Part IVAA of the Wrongs Act 1958 even if the
provision applies to liability in contract.
Part IVAA of the Wrongs Act 1958 prescribes the
apportionment of liability for economic loss or damage to
property between concurrent wrongdoers.
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Clause 261 sets a fixed time limit for proceedings for reviews of approval
decisions.
Subclause (1) states that the clause applies if the Planning
Minister makes an approval decision.
Subclause (2) states that despite anything to the contrary in the
Administrative Law Act 1978 or in any rules of court, a
proceeding for a review of the approval decision must be
commenced in the Supreme Court within 21 days after notice
of the making of the decision is published in the Government
Gazette in accordance with clause 82. This provision is
mandatory not discretionary.
Clause 262 provides the Supreme Court with discretion and power to hear
and determine proceedings for the review of an approval
decision as expeditiously and as informally as possible.
Further, consistent with the scheme and underlying policy of the
Bill, the clause provides that the Supreme Court in hearing and
determining the proceeding or any matter in the proceedings
(including stays and injunctions) must have regard to--
· the need for the expeditious development of transport
infrastructure in order for services to be provided by
means of such infrastructure for the benefit of the
Victorian community; and
· the need for increased cost certainty and increased risk
certainty in the delivery of declared projects.
Clause 263 prohibits the challenge, appeal or review of decisions under
Parts 1, 2, 3 and 4 of the Bill other than the final approval
decision of the Planning Minister under clause 77(1).
Subclause (2) provides a wide and expansive definition of
decision for the purposes of the Bill to ensure that all
administrative decisions under Parts 1, 2, 3 and 4 of the Bill,
except for a decision of the Planning Minister under section 77,
are subject to this clause. In particular, a decision means--
· a decision of a person or body under a provision of Part
1, 2, 3 or 4 (however it is described). However this
does not include a decision by the Planning Minister
under section 77 of the Bill (a specified decision); or
· a purported specified decision; or
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· a failure by a person or body to make a specified
decision; or
· a decision or purported decision made by a person or
body for the purpose of making a specified decision; or
· a decision or purported decision of the Planning
Minister under section 77 of the Bill that is taken to be a
decision under an applicable law by operation of
section 84 of the Bill.
Subclause (3) provides that a decision (other than a decision
under clause 77(1)) is not liable to be challenged, appealed
against, reviewed, quashed or called in question in any court or
tribunal (including VCAT) on any account or before any person
acting judicially within the meaning of the Evidence Act 1958.
Subclause (4) provides that, in addition, without limiting
subclause (3), no proceedings--
· seeking the grant of any relief or remedy in the nature of
certiorari, prohibition, mandamus or quo warranto, or
the grant of a declaration or injunction on any ground,
including absence of jurisdiction, excess of jurisdiction
or any other ground of review or appeal; or
· seeking any order under the Administrative Law Act
1978 (whether on the ground of absence of jurisdiction,
excess of jurisdiction or any other ground)--
may be brought against any person or body (including an
assessment committee) who makes a decision, performs a duty
or exercises a power or discretion or fails to do any of these
things in respect of a decision or any proceedings relating to
that decision or any other matter incidental to the making of that
decision (except for a decision under clause 77(1)).
Subclause (5) provides that subclauses (3) and (4) apply despite
anything to the contrary in an applicable law.
Clause 264 gives effect to Schedule 2 which provides for related and
consequential amendments to other Acts.
Clause 265 provides notification that it is the intention of clause 263 of the
Bill to alter or vary section 85 of the Constitution Act 1975 by
limiting the jurisdiction of the Supreme Court.
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Clause 266 provides a power to make regulations under the Bill.
Subclause (1) provides that the Governor in Council may make
regulations for or with respect to--
· fees;
· any other matter or thing required or permitted by this
Bill to be prescribed or necessary to be prescribed to
give effect to this Bill.
Subclause (2) provides that this power to make regulations
providing for the imposition of fees may be exercised by
providing for all or any of the following--
· specific fees;
· maximum fees;
· minimum fees;
· fees that vary according to value or time;
· the manner of payment of fees;
· the time or times at which fees are to be paid.
Subclause (3) provides that the regulations--
· may be of general or limited application;
· may differ according to differences in time, place or
circumstances;
· may confer a discretionary authority or impose a duty
on a specified person or class of person.
SCHEDULE 1
Applicable approval laws and applicable approvals
Schedule 1 provides a list of the applicable approval laws and applicable
approvals that are granted by the Planning Minister under this Act.
SCHEDULE 2
Related and consequential amendments to other Acts
Schedule 2 provides for amendments to other Acts, namely the Aboriginal
Heritage Act 2006, to provide a requirement that any project declared under
the Bill is required to have a Cultural Heritage Management Plan under that
Act.
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