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Planning and Environment Amendment
(Growth Areas Authority and
Miscellaneous) Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
General
The Planning and Environment Amendment (Growth Areas Authority and
Miscellaneous) Bill 2013 amends the Planning and Environment Act 1987
to enable growth areas to be declared anywhere in Victoria, to expand the
functions of the Growth Areas Authority, to make further provision relating
to the criminal liability of officers of bodies corporate and to make other
amendments to improve the operation of that Act and for other purposes.
Division 3 of Part 2 of this Bill follows agreement by the Council of
Australian Governments (COAG) for all Australian jurisdictions to apply six
common principles to determine the circumstances in which it is appropriate
to impose personal criminal liability on a director or manager of a body
corporate. The principles are contained in the publication Personal Liability
for Corporate Fault: Guidelines for applying the COAG Principles (COAG
guidelines) that was endorsed by COAG on 25 July 2012 and published on
the COAG website.
A more detailed explanation of the COAG guidelines, and of the model
directors' liability provisions developed to give effect to the guidelines, can
be found in the Explanatory Memorandum for the Statute Law Amendment
(Directors' Liability) Bill 2012.
Section 128 of the Planning and Environment Act 1987 contains a
directors' liability provision which applies to any offence committed by a
body corporate under the Act. This provision applies blanket liability on
directors without regard to the nature of each specific offence and without
regard to whether or not it is appropriate to hold the director or manager
personally liable for the commission of a particular offence by the body
571388 1 BILL LA INTRODUCTION 5/3/2013
corporate. The COAG guidelines require that this provision no longer be
applied as a blanket provision. The provision is also inconsistent with the
COAG guidelines by imposing a higher level of liability than is warranted.
Model provisions have been developed to ensure greater consistency in
directors' liability provisions in Victorian statutes. The model provisions
attribute personal liability to officers of bodies corporate in three ways,
referred to as "Type 1", "Type 2" or "Type 3" directors' liability provisions.
The differences between the model types relate to which party bears the
burden of proof.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purpose of the Bill which is to amend the
Planning and Environment Act 1987--
to enable growth areas to be declared anywhere in
Victoria; and
to expand the functions of the Growth Areas Authority;
and
to make further provision in relation to the criminal
liability of officers of bodies corporate; and
to generally improve the operation of that Act.
Clause 2 provides for the Act to come into operation on a day or days to be
proclaimed. If a provision of the Bill does not come into
operation before 19 March 2014, it comes into operation on that
day.
PART 2--AMENDMENT OF PLANNING AND
ENVIRONMENT ACT 1987
Division 1--Amendments relating to growth areas and the
Growth Areas Authority
Clause 3 substitutes section 46AO(1) and (2) of the Planning and
Environment Act 1987 with a new provision that enables the
Minister to declare a growth area anywhere in Victoria.
Currently the Minister may only declare a growth area in the
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municipal district of one or more of the growth area councils
listed in section 46AP.
Clause 4 repeals section 46AP of the Planning and Environment Act
1987. Section 46AP lists the municipal councils that are growth
area councils for the purposes of Part 3AAB of the Act.
The repeal of section 46AP is consequential on the amendments
to section 46AO made by clause 3. In particular, because
section 46AO(1) is being amended to enable the Minister to
declare a growth area anywhere in Victoria, section 46AP is no
longer required.
Clause 5 inserts new section 46AR(h) into the Planning and
Environment Act 1987 to provide an additional objective of
the Growth Areas Authority. The objective is linked to the
amendments to section 46AS in clause 6 to enable the Growth
Areas Authority to give advice to the Minister or a municipal
council on any matter relating to land in Victoria or an objective
of planning in Victoria. The objective seeks to ensure that all
advice and recommendations of the Growth Areas Authority are
consistent with the objectives of planning in Victoria.
Clause 6 amends section 46AS of the Planning and Environment Act
1987 to expand the functions of the Growth Areas Authority.
The amendment to section 46AS(a)(iii) of the Planning and
Environment Act 1987 enables the Minister to request advice
from the Growth Areas Authority on any matter relating to land
in Victoria or an objective of planning in Victoria. Currently, the
Minister may only request advice in relation to the functions and
powers of the Growth Areas Authority.
The clause also inserts a new section 46AS(ac) into the Planning
and Environment Act 1987 to enable the Growth Areas
Authority, at the direction of the Minister, to provide advice to a
municipal council on any matter relating to land in Victoria or an
objective of planning in Victoria if requested by that council.
Clause 7 inserts the following definition into section 201R of the Planning
and Environment Act 1987--
growth area means an area of land for the time being declared
under section 46AO in the municipal district of one or more of
the following municipal councils--
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Cardinia Shire Council;
Casey City Council;
Hume City Council;
Melton City Council;
Mitchell Shire Council;
Whittlesea City Council;
Wyndham City Council.
Section 201R sets out definitions for terms used in Part 9B of the
Planning and Environment Act 1987. Part 9B contains the
legislative provisions for the Growth Areas Infrastructure
Contribution scheme (the GAIC scheme).
The insertion of the above definition is consequential on the
amendment to section 46AO made by clause 3 and the repeal of
section 46AP by clause 4. The term "growth area" is used in
Part 9B of the Act to, among other things, define the contribution
areas in which the GAIC may be levied. There is no intention to
apply the GAIC scheme to growth areas outside the municipal
districts of the seven growth area councils currently listed in
section 46AP. The insertion of the above definition ensures the
application of the GAIC scheme does not change.
Division 2--Amendments relating to permit applications
referred to the Minister
Clause 8 amends section 76D(1) of the Planning and Environment Act
1987 to substitute "97A, 97B, 97C, 97D(1)" with "97B, 97C,
97D(1) and (3)". Those sections are contained in Division 6 of
Part 4 of the Act which empowers the Minister to "call in" an
application for a permit or a responsible authority to refer an
application for a permit to the Minister for consideration.
Section 76D applies specified sections from Division 6 of Part 4
to applications for amendments to permits made under
Division 1A of Part 4 of the Planning and Environment Act
1987. The substitution made by this clause is consequential on
the repeal of section 97A in clause 10 and the insertion of new
section 97(3) in clause 11.
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The clause also amends section 76D(2)(b) of the Planning and
Environment Act 1987 to substitute "first responsible authority"
with "referring responsible authority" (within the meaning of
section 97D(3)). This change is consequential on the
amendments to section 97D made by clause 11.
The clause also amends section 76D(4) and (5) of the Planning
and Environment Act 1987 to substitute "first responsible
authority" with "responsible authority specified in the planning
scheme". These changes are consequential on the changes made
by clauses 12 to 15.
Clause 9 amends section 96N of the Planning and Environment Act
1987 to substitute "specified in" for "under". This change is to
achieve consistency in language in that Act and is consequential
on the changes made by clauses 12 to 15.
Clause 10 repeals section 97A of the Planning and Environment Act 1987
which contains the definition of first responsible authority.
This change is consequential on the changes made by clauses 11
to 15 and is further explained in the clause note to clause 13.
Clause 11 amends sections 97D(1) and (2) of the Planning and
Environment Act 1987 to substitute "first" with "referring".
The effect of the substitution is to change "first responsible
authority" to "referring responsible authority". This change is
further explained in the clause note to clause 13.
This clause also inserts a new section 97D(3) to clarify that in
section 97D, the term "referring responsible authority" means the
responsible authority that referred an application to the Minister
under section 97B or 97C.
Clause 12 amends sections 97G(3) and (6) of the Planning and
Environment Act 1987 to substitute "first responsible authority"
with "responsible authority specified in the planning scheme".
This change is further explained in the clause note to clause 13.
Clause 13 amends section 97H of the Planning and Environment Act
1987 to substitute "first responsible authority" with "responsible
authority specified in the planning scheme".
Section 97H provides for the ongoing administration and
enforcement of a permit issued under Division 6 of Part 4 of the
Planning and Environment Act 1987.
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Currently, under section 97H, the "first responsible authority"
that refers the application to the Minister under section 97B
or 97C of the Planning and Environment Act 1987 becomes
responsible for the administration and enforcement of the permit.
If the responsible authority specified in the planning scheme
changes after the application has been referred to the Minister,
the "first responsible authority" still remains the responsible
authority for the permit.
This clause amends section 97H to provide that the responsible
authority specified in the planning scheme becomes responsible
for the administration and enforcement of a permit issued under
Division 6 of Part 4. If the responsible authority specified in the
planning scheme changes, the "new" responsible authority will
assume the administration and enforcement responsibilities for
the permit. As is the case now, the Minister will continue to be
responsible for administering certain aspects of these permits as
specified in section 97H(a) to (f).
The amendments in clauses 11 to 15 have been made to clarify
which responsible authority is being referred to in the Division.
A "referring responsible authority" is the responsible authority
that refers the application to the Minister under section 97B
or 97C. The "responsible authority specified in the planning
scheme" is the person or body that is designated in the planning
scheme as the responsible authority for the purposes of section 13
of the Planning and Environment Act 1987. Once a permit is
issued under Division 6 of Part 4, the responsible authority
specified in the planning scheme will be responsible for the
administration and enforcement of the permit, receive notice of
any decisions by the Minister to amend or correct these permits
and be responsible for including details of these permits in its
planning register.
Clause 14 amends section 97K(1)(b) of the Planning and Environment
Act 1987 to substitute "first responsible authority" with
"responsible authority specified in the planning scheme".
This change is further explained in the clause note to clause 13.
Clause 15 amends section 97L of the Planning and Environment Act
1987 to substitute "first responsible authority" with "responsible
authority specified in the planning scheme". This change is
further explained in the clause note to clause 13.
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Clause 16 amends section 201A(a) of the Planning and Environment Act
1987 to insert ", 97H" after "96". This change ensures the
administrative transition provisions under section 201A apply to
section 97H in the case where the responsible authority specified
in the planning scheme changes after a permit has been issued
under section 96F.
Division 3--Amendments relating to directors' liability
Clause 17 substitutes section 128 of the Planning and Environment Act
1987 with a new provision relating to the criminal liability of
officers of bodies corporate. The existing section 128 is
equivalent to a Type 3 model directors' liability provision which
places a legal burden on the officer charged and applies to all
offences under the Act. The new section 128 imposes a Type 1
model provision on an officer of a body corporate if the body
corporate commits an offence under section 48(2), 93(3), 126(1),
126(2), 126(3) or 137. These sections are central to the
regulatory regime for controlling land use and development in
Victoria.
The Type 1 model provision is headed Criminal liability of
officers of bodies corporate--failure to exercise due diligence.
It provides that if a body corporate commits an offence against a
specified provision, an officer of the body corporate also
commits an offence against the provision if the officer failed to
exercise due diligence to prevent the commission of the offence
by the body corporate.
This model provision requires the prosecution to prove that the
body corporate committed the offence. This does not require a
prior finding of guilt against the body corporate but requires the
prosecution to satisfy the court of the necessary elements
constituting the specific offence. The prosecution is then
required to prove, beyond reasonable doubt, that the accused
failed to exercise due diligence to prevent the commission of the
offence by the body corporate.
The provision states that an officer may commit an offence
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence. This means that a finding by a court
that an officer has committed an offence for the purposes of this
section is not contingent on a prior finding of guilt against the
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body corporate or prior prosecutorial action being taken against
the body corporate for the same offence.
The provision allows the officer to rely on a defence that would
have been available to the body corporate, either under
legislation or under the common law, had the body corporate
been charged with the same offence. The officer bears the same
burden of proof that the body corporate would bear in
establishing the defence.
Clause 18 inserts a note at the foot of sections 48(2), 93(3), 126 and 137 of
the Planning and Environment Act 1987, which states that
section 128 applies to the particular offence or offences specified
in the section.
Division 4--Other amendments to the Planning and
Environment Act 1987
Clause 19 amends section 46AA(1) of the Planning and Environment
Act 1987 to substitute "Shire" with "City". This change is
consequential on the re-constitution of Melton Shire Council as
Melton City Council by order of the Governor in Council which
came into effect on 6 September 2012.
Clause 20 inserts new sections 220A and 220B into the Planning and
Environment Act 1987 to provide for transitional provisions.
New section 220A provides that section 97H, as amended by
clause 13 of this Bill, applies in relation to a permit issued under
section 97F before or after the commencement of clause 13.
New section 220B(1) provides that, for the avoidance of doubt,
new section 128 applies with respect to an offence against a
provision specified in section 128(2) that is alleged to have been
committed by a body corporate on or after the commencement of
clause 17 of this Bill.
New section 220B(2) provides that new section 220B does not
limit section 14 of the Interpretation of Legislation Act 1984,
which deals with the effect of repeals of Acts or provisions of
Acts.
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Clause 21 amends clause 2(c) and (g) in Schedule 1 to the Planning and
Environment Act 1987 by substituting "Shire" with "City".
This change is consequential on the re-constitution of Melton
Shire Council as Melton City Council by order of the Governor
in Council which came into effect on 6 September 2012.
Clause 22 amends the second example at the foot of section 201RE of the
Planning and Environment Act 1987 to correct the form of the
numbering of the second example for consistency with the form
of numbering of examples in Victorian legislation.
PART 3--REPEAL OF AMENDING ACT
Clause 23 provides for the automatic repeal of this amending Act on
19 March 2015. 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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