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Planning and Building Legislation
Amendment (Housing Affordability and
Other Matters) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Planning and Building
Legislation Amendment (Housing Affordability and Other
Matters) Bill 2017 (the Bill) which are--
• to amend the Planning and Environment Act 1987--
• to facilitate affordable housing supply; and
• to modify the requirements for determining
certain applications to amend wind farm permits;
and
• to make miscellaneous amendments to the Building
Act 1993 and the Building Amendment (Enforcement
and Other Measures) Act 2017.
Clause 2 provides for the commencement of the Bill. Subclause (1)
provides that the Bill (except Part 2) comes into operation on the
day after the Act receives Royal Assent. Subclause (2) provides
that, subject to subclause (3), Part 2 of the Bill will come into
operation on a day or days to be proclaimed. Subclause (3)
provides that if a provision of the Bill does not come into
operation before 1 June 2018, that provision will come into
operation on that date.
581443 1 BILL LA INTRODUCTION 20/6/2017
Part 2--Amendment of Planning and Environment Act 1987
Division 1--Facilitation of affordable housing supply
Division 1 of Part 2 of the Bill implements the policy framework set out in
the Victorian Housing Strategy Homes for Victorians--Affordability, access
and choice for voluntary arrangements to facilitate the provision of
affordable housing through the planning framework.
Clause 3 amends section 3(1) of the Planning and Environment
Act 1987 to insert a definition of affordable housing by
reference to the definition to be inserted by clause 4 of this Bill.
Clause 4 inserts new sections 3AA and 3AB after section 3 of the
Planning and Environment Act 1987.
New section 3AA(1) defines affordable housing for the purposes
of the Planning and Environment Act 1987. The definition
clarifies that, for the purposes of that Act, affordable housing is
housing that includes social housing that is appropriate for the
housing needs of any of the following--
• very low income households; and
• low income households; and
• moderate income households.
New section 3AA(2) provides that for the purposes of
determining what housing is appropriate for the housing needs of
very low income households, low income households and
moderate income households, regard must be had to the matters
specified by the Minister by notice published in the Government
Gazette. A purpose of this subsection is to enable the Minister to
set out matters that a council must have regard to when entering
into an agreement under section 173(1A) of the Planning and
Environment Act 1987 in relation to affordable housing.
The matters that may be specified will be those relevant to the
planning framework, such as the location of housing in relation to
public transport and activity centres, amenity and household size.
New section 3AA(3) sets out that the Minister's notice cannot
include prices or price ranges for the purchase or rent of housing.
This is because those matters are outside the scope of the
Planning and Environment Act 1987.
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New section 3AA(4) defines terms for the purposes of the
section. The terms are low income households, moderate
income households, social housing and very low income
households.
New section 3AB enables the Governor in Council, on the
recommendation of the Minister, to make an order published in
the Government Gazette which may specify--
• a range of household income as a very low income
range; and
• a range of household income as a low income range;
and
• a range of household income as a moderate income
range.
An Order under this section can specify the income ranges by
reference to statistical data published by the Australian Bureau
of Statistics (ABS). This will enable the household income
ranges to be constructed from the ABS data (because the ABS do
not currently and are unlikely to in the future publish definitions
for particular income groups).
Clause 5 inserts a new paragraph (fa) after section 4(1)(f) of the Planning
and Environment Act 1987 to include a new objective into that
Act. The new objective is "to facilitate the provision of
affordable housing in Victoria".
Clause 6 subclause (1) inserts a new subsection (1A) into section 173
of the Planning and Environment Act 1987 which enables a
responsible authority to enter into an agreement with an owner
of land for the development or provision of land in relation to
affordable housing. An agreement entered into pursuant to
subsection (1A) will be an agreement for the purposes of
section 173 of the Planning and Environment Act 1987.
Accordingly, Division 2 of Part 9 of that Act will apply to
agreements relating to affordable housing.
Subclause (2) makes a consequential amendment to
section 173(3) of the Planning and Environment Act 1987
to include a reference to new subsection (1A).
Any agreement entered into under section 173 of the Planning
and Environment Act 1987 is a voluntary agreement.
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Division 2--Applications to amend referred wind energy facility
planning permits
Division 2 of Part 2 of the Bill amends the Planning and Environment
Act 1987 to streamline the processing of amendments to wind farm permits
if the permit was issued after being referred to the Minister for decision
under Division 6 of Part 4 of that Act. Any objections to specified classes
of permits will be exempt from referral to a planning panel.
Clause 7 inserts in section 3(1) of the Planning and Environment
Act 1987 the definitions of referred wind energy facility permit
and wind energy facility.
Referred wind energy facility permit refers to a permit for the
use or development of land as a wind energy facility that has
been determined by the Minister after it has been referred to the
Minister for decision under Division 6 of Part 4 of the Planning
and Environment Act 1987. This is commonly described as a
"called in permit". An application may be referred to the
Minister either because the Minister has "called in" the permit
application or a responsible authority has requested the Minister
to decide the application.
Wind energy facility means an electricity generation facility that
generates electricity by converting wind energy into electricity.
This definition is consistent with other definitions relating to
wind farms in Victorian legislation (for example, the definition of
wind energy generation facility set out in section 40F(1) of the
Electricity Industry Act 2000).
Clause 8 subclause (1) inserts new paragraph (kf) after section 6(2)(ke) of
the Planning and Environment Act 1987. New paragraph (kf)
will enable a planning scheme to specify classes of applications
to amend referred wind energy facility permits that are wholly
exempted from the requirements under section 97E(1) of the
Planning and Environment Act 1987 or for which the
requirements under section 97E(1) are modified so as to require
referral of objections and submissions to an advisory committee
established under section 151 of that Act.
An application to amend a permit issued by the Minister after
being referred to the Minister under Division 6 is subject to
section 97E(1) of the Planning and Environment Act 1987.
Section 97E(1) requires the Minister to refer to a panel any
objections and submissions received within time in respect of an
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application for a planning permit that has been called in by the
Minister. Subsection (5) however provides that the Minister is
not required to refer submissions to a panel if no objections are
received in respect of the called in permit application.
If an application to amend a referred wind energy facility permit
falls within the class specified in the planning scheme, any
objections received within time will not be required to be referred
to a planning panel appointed under Part 8 of the Planning and
Environment Act 1987. For those amendment applications that
are exempt, the Minister will still be required to consider any
objections lodged in relation to the application as part of the
Minister's decision-making process under section 97J of the
Planning and Environment Act 1987 (noting that section 97J
requires consideration of any matters to be considered under
section 60 of that Act which includes section 60(1)(c):
"all objections and other submissions which it has received and
which have not been withdrawn"). In addition, the Minister will
still be required to give notice of the decision on the amendment
of the permit to any person who made objections or submissions
in respect of the amendment to that permit in accordance with
section 97K(1)(c) of the Planning and Environment Act 1987.
The planning scheme may also specify classes of applications to
amend referred wind energy facility permits for which the
requirements under section 97E(1) are modified so as to require
referral of objections and submissions to an advisory committee
established under section 151 of the Planning and Environment
Act 1987. If an amendment application falls within that class
specified in the planning scheme, any objections to those
applications will instead be referred to a standing advisory
committee (established under Part 7 (section 151) of the
Planning and Environment Act 1987) for consideration and
advice to the Minister, instead of to a panel. A standing advisory
committee must operate in accordance with terms of reference
approved by the Minister. It is expected that this will enable the
Minister to streamline the process for amendment applications in
the specified class that are not exempt from section 97E(1) of the
Planning and Environment Act 1987.
Subclause (2) also inserts a new subsection (2A) after
section 6(2) of the Planning and Environment Act 1987.
This will enable a class of application to amend a referred wind
energy facility permit for the purposes of new subsection (2)(kf)
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of that Act to be specified by reference to any of the
characteristics of a wind energy facility listed below--
• the total number of turbines;
• the maximum height of turbines;
• the location of turbines.
If an amendment application falls outside the specified class
then any objections to that application will need to be processed
through section 97E(1) of the Planning and Environment
Act 1987 and referred to a planning panel.
Example
A planning scheme specifies that applications to amend referred
wind energy facility permits to--
(a) reduce the number of turbines are a class of application
which are wholly exempt from section 97E(1) of the
Planning and Environment Act 1987; and
(b) increase the number of turbines are a class of
application for which the requirements under
section 97E(1) of the Planning and Environment
Act 1987 are modified so as to require referral of
objections and submissions to an advisory committee
established under section 151 of that Act.
Any objections to an amendment application to increase the
number of turbines would be referred to a standing advisory
committee. In contrast, an amendment application relating to the
blade length of the turbines for a particular facility does not fall
within the specified class. Any objections to that amendment
application would be dealt with under section 97E(1) of the
Planning and Environment Act 1987 and the Minister would
be required to refer those objections to a planning panel.
Clause 9 inserts a new subsection (3) after section 97I(2) of the Planning
and Environment Act 1987. This provides that a reference in
section 97E of that Act to a panel is to be treated as if it were a
reference to the advisory committee if an application for an
amendment to a referred wind energy permit is of a class of
application specified in the planning scheme for which objections
and submissions must to referred to an advisory committee.
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Part 3--Amendment of Building Act 1993
Clause 10 substitutes the note at the foot of section 88(1) of the Building
Act 1993. The note clarifies information on the right to appeal to
the Building Appeals Board.
Clause 11 substitutes in section 180(a) of the Building Act 1993, for
the words "insolvent under administration" (where secondly
occurring) with the words "subject to external administration
within the meaning of section 5-5 of Schedule 2 to the
Corporations Act" meaning the Corporations Act 2001 of
the Commonwealth.
The current provision did not allow for an officer of a body
corporate that is subject to external administration within the
meaning of the Corporations Act 2001 of the Commonwealth to
be immediately suspended. The amendment is intended to
resolve the matter.
Clause 12 inserts a new subsection (1B) before section 212(2) of the
Building Act 1993. This new subsection provides that a
council is not responsible for enforcing an indictable offence
under that Act.
Section 212 provides that a council is responsible for the
enforcement of specified parts of the Building Act 1993 and the
building regulations in its municipal district. The amendment is
in recognition that councils are not well equipped to investigate
and prosecute indictable offences.
Clause 13 substitutes the word "offence" with the words "summary offence"
in section 241(1) of the Building Act 1993. This provides that a
council and prescribed persons may only bring proceedings for a
summary offence against Part 3, 4, 5, 7, or 8 of that Act or the
building regulations within a municipal district. This supports
clause 12 of this Bill which provides that the council is not
responsible for prosecuting indictable offences under the
Building Act 1993.
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Part 4--Amendment of Building Amendment (Enforcement and
Other Measures) Act 2017
Clause 14 amends section 6 of the Building Amendment (Enforcement
and Other Measures) Act 2017 which inserts new section 80A
into the Building Act 1993. The final subsection in section 80A
is numbered "( )". The amendment substitutes "( )" with "(4)".
The number of the paragraph was inadvertently omitted.
Part 5--Repeal of amending Act
Clause 15 provides for the automatic repeal of this amending Act on
1 June 2019. The repeal of this Act does not affect in any way
the continuing operation of the amendments made by this Act
(see section 15(1) of the Interpretation of Legislation
Act 1984).
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