On 23 April 2020, the Victorian Parliament was called back for a single sitting day to consider a raft of bills in response to the COVID-19 pandemic.
Of particular importance to the environment and planning community was the introduction (and subsequent passing) of the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Omnibus Bill), which affects the operation of the Planning and Environment Act 1987, Environment Protection Amendment Act 2018, Local Government Act 2020, Supreme Court Act 1986 and the Victorian Civil and Administrative Tribunal Act 1998.
These legislative changes form the next tranche of regulatory action from the Victorian Government in the environment and planning portfolio following the Minister for Planning's planning scheme amendment (VC181), on 6 April 2020, to facilitate the delivery of food and other essential goods during and following a state of emergency declared in relation to COVID-19 by inserting a new Clause 52.18 (State of Emergency Exemption).
On 24 April 2020, the Victorian Government announced the establishment of the Building Victoria's Recovery Taskforce to help keep the state's building and development industry running through the COVID-19 pandemic.
COVID-19 Omnibus (Emergency Measures) Bill 2020
From an environment and planning perspective, the Omnibus Bill will introduce the following temporary measures to respond to the COVID-19 pandemic:
- Temporarily amend legislation, including the Planning and Environment Act 1987, Local Government Act 2020 and Supreme Court Act 1986
- Permanently amend the Environment Protection Amendment Act 2018
- In relation to court and tribunal proceedings, empower the making of regulations that can modify the operation of existing legislation and subordinate instruments
A copy of the Bill is available here.
Temporary amendments to environment and planning and related legislation
Amendments to the Planning and Environment Act 1987
- Requirements to make documents available for inspection
The Planning and Environment Act 1987 (P&E Act) contains a number of provisions that require an entity to make a document available for inspection at that entity's office free of charge.
Under the Omnibus Bill, if the relevant entity (such as the Minister or a Council) makes the document publicly available free of charge on the entity's website, the entity's duty is taken to be satisfied.
This will ensure that documents, including the following, will be available for inspection online:
- Proposed planning scheme amendments (Section 18 of the P&E Act)
- Planning permit applications (Section 51 of the P&E Act)
- Granted planning permits (Section 70 of the P&E Act)
- Section 173 agreements (Section 179 of the P&E Act)
- Requirements relating to notices
The P&E Act also contains provisions that require decision makers to specify the place or places at which a document may be inspected.
Under the Omnibus Bill, if the relevant decision maker (such as the Minister or a Council) specifies their website as the place to inspect a document, the decision maker's duty is taken to be satisfied.
For example, notices of approved planning scheme amendments in the Government Gazette (Section 36(1) of the P&E Act) will not be required to specify any physical places, such as the local government's offices, where the amendment can be inspected.
- Modified rules about panel hearings
Unless a submission is confidential in nature, Section 160 of the P&E Act requires that panel hearings be conducted in public.
Under the Omnibus Bill, a panel hearing is taken to be conducted in public if the panel makes the hearing electronically available to the public free of charge, either while the hearing is being held or as soon as reasonably practicable afterwards.
A person who has a right to be heard by a panel or who is called by a panel may appear and be heard in person or be represented by any other person (Section 162 of the P&E Act).
Under the Omnibus Bill, a panel is not required to hear a person in person, but may instead require the person (or their representative) to appear and be heard at a specified time by electronic means. The Omnibus Bill also provides that a panel may report and make recommendations concerning a submission without hearing the person who made the submission if the person (or their representative) is not present at the specified time for the hearing of the submission by electronic means.
These provisions will see greater online access to panel hearings, whether live or via a recording; and further implement and assist Planning Panels Victoria's transition to online panel hearings.
The amendments to the P&E Act will be repealed in six months.
The Minister for Planning has released a set of questions and answers regarding these changes, available here.
Amendments to the Local Government Act 2020
- Council meeting attendance
Councillors are taken to be in attendance at a Council meeting if they participate in the meeting electronically.
- Meetings to be open to public
A Council meeting is taken to be open to the public if it is streamed live on the Council's website, subject to certain exceptions, including confidentiality and security reasons.
The amendments to the Local Government Act 2020 will be repealed on 2 November 2020.
Amendments to the Supreme Court Act 1986
Notably, the Omnibus Bill includes temporary amendments to the Supreme Court Act 1986 so that the Court may decide any issue in any proceeding, or determine any proceeding, entirely on the basis of written submissions and without the appearance of the parties if the Court is satisfied that it is in the interests of justice to do so; and whether or not the parties consent to the Court doing so.
The Court must have regard to the following in determining whether it is in the interests of justice to decide an issue or determine a proceeding entirely on the basis of written submissions and without the appearance of the parties:
- The nature of the issue or proceeding;
- The right to a fair hearing; and
- Whether the parties have had the opportunity to obtain legal advice; and
- Whether the parties consent to the court doing so.
The amendments to the Supreme Court Act 1986 will be repealed in six months.
Permanent amendments to the Environment Protection Amendment Act 2018
On 3 March 2020, the remaining provisions of the Environment Protection Amendment Act 2018 (EP Amendment Act) were proclaimed to commence on 1 July 2020. If not for the proclamation, the default commencement date for the remaining provisions of the EP Amendment Act was 1 December 2020.
The Omnibus Bill formally revokes the proclamation of commencement made on 3 March 2020 and also pushes back the default commencement date for the remaining provisions of the EP Amendment Act to 1 December 2021.
The second reading speech provides that the Victorian Government intends to proclaim a commencement date of 1 July 2021 for the remaining provisions of the EP Amendment Act, however the default position would be 1 December 2021 in the absence of any earlier proclamation.
Temporary modification of the law by regulation
Environment and planning proceedings in the Supreme Court and Victorian Civil and Administrative Tribunal are governed by various pieces of legislation and subordinate instruments administered by the Attorney-General, such as the Supreme Court Act 1986, the Victorian Civil and Administrative Tribunal Act 1998, Supreme Court (General Civil Procedure) Rules 2015, Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, and Victorian Civil and Administrative Tribunal Rules 2018.
Section 4 of the Omnibus Bill provides that the Governor in Council, on the recommendation of the Attorney-General, may make regulations that modify the application of, a Justice Act provision (including Acts administered by the Attorney-General), a provision of a subordinate instrument made under a Justice Act provision, that provides for or regulates matters such as:
- Arrangements for or with respect to any proceeding in a court or tribunal
- The conduct of a proceeding in a court or tribunal
- A specified date or time frame that must be met
- The process by which orders, judgments, rulings, reasons, determinations, decisions or findings of a court or tribunal are issued
- The process by which a document is given or issued
- The service of documents
- The lodgement, submission or filing, or inspection, of documents
Any such regulations have the extraordinary power to override existing legislation and subordinate instruments mentioned above.
The power to make regulations is not unencumbered, as the Attorney-General must first have the consent of the relevant head of the court or tribunal (e.g. the Chief Justice or the President of the Tribunal).
As a further oversight measure on the making of the regulations, either House of Parliament may disallow the regulations in whole or in part.
Establishment of Building Victoria's Recovery Taskforce
On 24 April 2020, the Victorian Government set up a dedicated taskforce to help keep the state's building and development industry running through the COVID-19 pandemic.
Building Victoria's Recovery Taskforce (Taskforce) will run for an initial period of three months, reporting back to government with recommendations. The Taskforce will be overseen by the Minister for Planning Richard Wynne and the Treasurer Tim Pallas, which will investigate planning and investment opportunities to boost Victoria's building and development industry over the short, medium and long term.
The Taskforce will be co-chaired by Roger Teale (former President of the Property Council (Vic)), Jude Munro AO (chair of the Victorian Planning Authority) and Stan Krpan (CEO of Solar Victoria).
The scope of the Taskforce includes:
- Providing real-time advice to government on issues impacting the industry, helping to remove barriers to building and development works
- Working with industry and unions to review existing major building and development projects
- Overseeing the fast-tracking of planning approvals using Ministerial powers, where decisions have been delayed due to COVID-19 related impacts on the Victorian Planning System
- Advising on a pipeline of building and development projects over the longer term, including initiatives that further expand social housing options
- Advising on financial incentives and current revenue measures – such as land tax, developer contributions, fees and rates – and make recommendations to help businesses survive and fast-track investment
The Minister for Planning's announcement coincides with his approval of four new projects worth more than $1.5 billion at 118 City Road, Southbank, 555 Collins Street, Melbourne, 52-60 Collins Street, Melbourne and 550 Epsom Road, Flemington.
While the changes to various pieces of legislation will be welcomed by the industry to provide some semblance of business as usual (albeit in most instances, remotely), the details of how and if new regulations will impact environment and planning proceedings in courts and tribunal are currently unknown.
The establishment of the Taskforce will also be welcomed as a proactive measure that formalises a collaborative approach, of bringing both the private and public sectors together, to boost Victoria's building and development industry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.