The Law Handbook 2024

1016 Section 11: Rights, activism and fair treatment at work Planning schemes are usually administered by local government (that is, councils). Each council has a dual role as both: • a planning authority that is responsible for the administration and amendment of planning schemes; and • a responsible authority that is responsible for making decisions about applications for permits and enforcing planning schemes. The Minister for Planning and the Victorian Department of Transport and Planning ( DTP ) also play important roles in administering planning in Victoria. Other Victorian Government departments and agencies have responsibilities relating to decision- making under planning schemes – these are known as referral authorities. The Victorian Civil and Administrative Tribunal ( VCAT ) deals with disputes about planning permits and the enforcement of planning schemes. Planning Panels Victoria considers issues in relation to the amendment of planning schemes. Public consultation, notification, objection and appeal rights are an important feature of the PE Act and the administration of planning schemes. These rights vary depending on the regulatory context in which the decision is being made under the PE Act and may vary under the applicable planning scheme. Planning schemes What are planning schemes? Planning schemes are subordinate instruments, made under the PE Act, that usually include maps of the areas to which they relate and, together with the PE Act, form the main laws that regulate the use of land in Victoria. Planning schemes must seek to further the objectives of planning in Victoria within the area covered by the scheme and may make any provision that relates to the use, development, protection or conservation of any land in the area (s 6(1) PE Act). Planning schemes have legal effect and set out the types of land use or developments that are allowed or prohibited, or for which a permit is required. A planning scheme applies to every parcel of land in Victoria except Commonwealth land. Planning schemes may be viewed at local council offices and are available at www.planning.vic.gov. au/schemes-and-amendments/browse-planning- schemes. To identify the planning scheme and planning controls that apply to an address or parcel of land, see www.mapshare.vic.gov.au/vicplan/ . All planning schemes in Victoria are based on the Victoria Planning Provisions ( VPPs ) (see ‘Victoria Planning Provisions’, below). Planning schemes contain zones (which regulate land use), overlays and specific provisions (which regulate development in specified areas or in relation to specified subject matter). Planning schemes also contain state and local policy provisions and definitions to help people interpret and apply the schemes. Planning schemes typically contain a range of incorporated documents that must be considered in specific decision-making processes and may apply to all schemes or to one scheme. They also usually include ‘reference documents’ which differ from incorporated documents and provide background information to help decision-makers understand the context within which a particular policy or provision has been framed. All Victorian landholders are bound by the relevant planning schemes, including ministers, government departments, public authorities and councils (s 16 PE Act), with the following important exceptions: • government departments and ministers can be exempted by order of the Governor in Council, on the recommendation of the Minister for Planning (s 16 PE Act); • each reserve that is permanently reserved under the Crown Land (Reserves) Act 1978 (Vic) (s 46 PE Act) is subject to a planning scheme; however, if a planning scheme is inconsistent with the purpose of a public reserve, the planning scheme does not take effect until the public reservation is revoked; • existing uses of land can continue, despite their prohibition in the relevant planning scheme (s 6(3) PE Act). These are called ‘existing use rights’ or ‘non-conforming use rights’, and to establish such a right, it must be proved that the land was used continuously (without significant interruption) for a particular purpose before and since the planning scheme or planning amendment came into operation (see Seers v Macedon Ranges Shire Council (Red Dot) [2016] VCAT 1198 and Williams v Macedon Ranges Shire Council [2022] VCAT 621, per Quigley, J).