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Planning Legislation Amendment
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to amend the
Planning and Environment Act 1987 to enable the
establishment of development assessment committees that will
decide on certain types of applications for planning permits and
amendments to planning permits and to enable growth areas to be
declared in any part of Victoria; to amend the Docklands Act
1991 to allow the Victorian Urban Development Authority to
continue its involvement in the Docklands development; to
amend the Heritage Act 1995 to increase the maximum penalty
for infringement offences to ten penalty units; to amend the
Local Government Act 1989 to provide that a person is not
regarded as having a indirect interest due to a conflicting duty
under section 78B solely because he or she is a member of a
development assessment committee (a DAC); and to amend the
Melbourne Convention and Exhibition Trust Act 1996 to
allow the Trust to operate throughout Victoria and to clarify its
functions.
Clause 2 provides for the Act to come into operation on the day after the
day on which it receives the Royal Assent.
PART 2--AMENDMENTS TO THE PLANNING AND
ENVIRONMENT ACT 1987
Clause 3 amends section 46AO of the Planning and Environment Act
1987 to provide for growth areas to be declared for any part of
Victoria and not only within the municipal district of a growth
area council as presently defined in section 46AP.
561356 1 BILL LA INTRODUCTION 31/3/2009
Clause 4 repeals section 46AP of the Planning and Environment Act
1987 to remove the list of specified growth area councils.
This completes the removal of the previous limitation on the
declaration of growth areas, enabling growth areas to be declared
in any part of Victoria.
Clause 5 amends section 58 of the Planning and Environment Act 1987
to prevent the responsible authority from considering or deciding
on an application that falls within the operational area of a DAC.
Clause 6 inserts a new Part 4AA into the Planning and Environment Act
1987. New Part 4AA provides for the establishment and
functions of DACs, the appointment and removal of DAC
members, the procedure of DACs and the conduct and probity
requirements of the members and other persons providing
services to DACs.
New Division 1 of Part 4AA contains definitions for the purposes
of that Part.
New section 97MA provides the following definitions. A DAC is
defined as a development assessment committee established
under section 97MB, a DAC application is defined, in relation to
a DAC, as an application for a permit or an amendment to a
permit that is within the operational area of that DAC and an
operational area, in relation to a DAC, is defined by referring to
the classes of applications for permits and types of amendments
to permits described in section 97MD(1) that are to be decided by
that DAC.
New Division 2 of Part 4AA deals with the establishment and
functions of a DAC.
New section 97MB provides for the establishment of DACs by
an order of the Governor in Council on the recommendation of
the Minister. A section 97MB order will specify the classes of
applications that a DAC may decide and the area or areas of
Victoria for which the DAC is established. A DAC can apply in
respect of more than one municipal district or more than one area
in a municipal district.
New section 97MC provides for the revocation or variation of a
section 97MB order. The Minister is required to publish the
details of each DAC on the Department's Internet site.
New section 97MD provides that the functions of a DAC are to
decide classes of applications for permits that are specified in the
section 97MB order and decide amendments to permits as
described. These functions do not extend to applications referred
to the Minister or to applications subject to a combined permit
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and amendment process. The DAC has the power to decide on
amendments to permits previously granted by the DAC or the
responsible authority as long as the permit after amendment is
within the operational area of the DAC. This does not extend
to the amendment of permits granted by the Minister.
Subsection (3) provides for certain sections of the Planning and
Environment Act 1987 to apply referentially to a DAC when
deciding a DAC application.
New section 97ME requires a DAC to consider every application
within its operational area.
New section 97MF gives a DAC the same powers that the
responsible authority would have had in deciding on the
application if it were not a DAC application.
New sections 97MG and 97MH require the responsible authority
to provide a DAC with the necessary documents, information and
support needed to enable the DAC to make decide an application.
New section 97MI requires the responsible authority to pay or
reimburse the costs of a DAC, unless the Minister directs
otherwise.
New section 97MJ(1) provides that a decision or failure to make
a decision by a DAC is to be taken to be a decision of the
responsible authority.
New section 97MJ(2) requires the responsible authority to ensure
that the register kept under section 49 of the Planning and
Environment Act 1987 specifies if a decision on an application
has been made by a DAC.
New Division 3 provides for the membership of a DAC.
New section 97MK outlines the membership of a DAC, which
will consist of a Chairperson and two members to be nominated
by the Minister and two members nominated by the municipal
council that relates to the application. The two council
nominated members will be drawn from a group of five persons
who are councillors or members of staff of the council.
New section 97ML provides for alternate members including an
alternate Chairperson if a member is unable to act for any reason.
A municipal council may nominate an alternate member from the
other three persons nominated under new section 97MK(1)(c) if a
council nominated member cannot act. While acting for a
member, an alternate member has all the powers, authority and
duties of that member.
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New section 97MM provides that the Minister has the power to
suspend a member or alternate member for up to 3 months if the
Minister believes on reasonable grounds that the member has
acted corruptly, breached probity requirements for DAC
members or has acted in a way that is not in the best interests of
the DAC. The Governor in Council has the power to remove a
member or alternate member from office at any time. A member
or alternate member can resign by providing a written resignation
to the Minister.
New section 97MN provides for the Governor in Council to
appoint a member or alternate member to fill a vacancy in
accordance with new sections 97MK or 97ML.
New section 97MO requires the Minister to publish on the
Department's Internet site the names of the members and
alternate members of a DAC.
New section 97MP provides for the conditions of membership of
DAC members. Members' terms may be for up to three years,
though a member may be re-appointed to a DAC. The Minister
can determine the terms and conditions of the members.
New section 97MQ provides that the Minister can determine
payment of allowances and fees. Members of the municipal
council and employees of the council or the Crown are not
entitled to any additional payment for acting as a member of a
DAC.
New Division 4 of Part 4AA provides for the procedure of a
DAC.
New section 97MR provides that when making decisions the
DAC is bound by the rules of natural justice and must act
according to equity and in good conscience.
New section 97MS provides for the procedures at meetings.
A DAC meeting requires that a quorum of three members be
present. The DAC may act as long as there is a quorum despite
a vacancy.
New section 97MT provides that a decision of the DAC will not
be invalid if there is a vacancy in the DAC or a defect or
irregularity in the appointment of a member.
New section 97MU provides that the Minister may determine
any other procedures and the DAC must comply with those,
otherwise the DAC may regulate its own procedures.
New section 97MV is a referential provision providing that
section 144 (an evidentiary provision) applies in respect of a
DAC deciding a DAC application.
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New Division 5 of Part 4AA provides for the probity
requirements of DAC members. This Division is divided into
6 new Subdivisions.
New Subdivision 1 consists of new section 97MW, which
contains a definition of member of a DAC for the purposes of
Division 5. This term includes alternate members of a DAC.
New Subdivision 2 contains conduct principles for DAC
members.
New section 97MX outlines the principles of conduct that the
members of a DAC must comply with, including acting lawfully
and with integrity, impartiality, honesty and avoiding any conflict
between their public duties as a member of a DAC and their
personal interests or obligations and treating all people with
respect, using resources prudently and acting in the public
interest and preserving the public confidence in the DAC.
New Subdivision 3 deals with misuse of position by DAC
members.
New section 97MY contains a definition of confidential
information for the purposes of this Subdivision.
New section 97MZ provides that a member of a DAC must not
misuse their position or former position to gain or attempt to gain
an advantage for themselves or for any other person or cause any
detriment to the DAC or a responsible authority.
New Subdivision 4 deals with conflicts of interest of DAC
members and other persons.
New sections 97MZA and 97MZB place a strong requirement on
DAC members, and members of staff of responsible authorities
and other persons who have been engaged to provide advice to
the DAC, to disclose any conflicts of interest.
Under new section 97MZA, a member of a DAC who is aware of
a conflict of interest relating to a DAC application must advise
the Secretary without delay and take no part in deciding the
application. Failure to comply is an offence with a maximum
penalty of 100 penalty units.
Under new section 97MZB members of staff of the responsible
authority or other persons providing advice or reports to the
DAC must advise the DAC if they become aware of a conflict.
Failure to do so is an offence with a maximum penalty of
50 penalty units. The disclosure must be recorded in the minutes
of any relevant meetings of the DAC. If directed by the DAC a
person must disclose the nature of the interest.
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New section 97MZC provides that a conflict of interest includes
a direct or indirect interest in a matter, though not if the interest is
so remote or insignificant that it could not reasonably be regarded
as capable of influencing any actions or decisions of the person in
relation to the matter.
New section 97MZD sets out the meaning of a direct interest in a
matter.
New sections 97MZE, 97MZF, 97MZG, 97MZH and 97MZI set
out the various meaning of an indirect interest in a matter.
New Subdivision 5 deals with returns of interests of DAC
members.
New section 97MZJ provides that Subdivision 5 does not apply
to members or alternate members of a DAC who must submit
returns under section 81 of the Local Government Act 1989.
New sections 97MZL and 97MZM require members and
alternate members of a DAC to submit returns to the Secretary
detailing their interests including details of any company in
which they hold an office or where they hold a significant
beneficial interest, details of any interest in land that is in or
adjacent to an area for which a DAC has been established, details
of any trusts in which they or their family are a trustee or
beneficiary or any other interest that may raise a material
conflict. A member will be required to submit a primary return
within 30 days of appointment and then submit ordinary returns
every year.
New Subdivision 6 deals with the register of interests of DAC
members.
New section 97MZN requires the Secretary to maintain a register
of members' returns. The register may be inspected upon written
application under new section 97MZO and under new section
97MZP members may inspect the names of persons who have
inspected their returns on the register.
New section 97MZQ provides that it is an offence to publish
register information unfairly or inaccurately, the maximum
penalty being 20 penalty units.
New section 97MZR makes it an offence for Departmental
employees to divulge, communicate or use information gained
through their duties under Subdivision 5 or 6, the maximum
penalty being 50 penalty units.
New section 97MZS requires the Secretary to remove returns of a
member of a DAC from the register as soon as practicable after
he or she ceases to be a member or alternate member.
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New section 97MZT requires the Secretary to keep the returns of
a member or alternate member of a DAC for 3 years after ceasing
to be a member and then to destroy them.
PART 3--AMENDMENTS TO OTHER ACTS
Clause 7 amends section 9 of the Docklands Act 1991 to omit the words
"and to complete its involvement in that development by
31 December 2005". This removes the expiry date for the
involvement of the Victoria Urban Development Authority in the
Docklands development, allowing the Authority to have an
ongoing role in the development.
Clause 8 amends section 185(k) of the Heritage Act 1995 to increase the
maximum penalty that may be prescribed for infringement
offences under that Act to 10 penalty units.
Clause 9 inserts new section 78B(3)(ca) into the Local Government Act
1989 to provide that a Councillor or a member of a special
committee or Council staff, who is also a member of a DAC, is
not to be regarded as having an indirect interest because of a
conflicting duty in a matter solely because of his or her DAC
membership.
Clause 10 amends sections 5(a) and 5(b) of the Melbourne Convention
and Exhibition Trust Act 1996 to allow for the Trust to
operate throughout Victoria and to include entertainment as one
of the purposes for which facilities and services may be used.
This clause also amends section 5(d) of that Act to substitute an
outdated reference to the "Council of the Museum of Victoria"
with the "Museums Board of Victoria".
PART 4--REPEAL OF AMENDING ACT
Clause 11 provides for the automatic repeal of this amending Act on the
first anniversary of its commencement. The repeal of this Act
does not affect the continuing operation of the amendments made
by it (see section 15(1) of the Interpretation of Legislation Act
1984).
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