The Law Handbook 2024

Chapter 11.3: Environment and planning law 1027 an indictable offence that can be prosecuted in the Magistrates’ Court. It is often difficult to provide evidence of a breach of permit conditions. Witnesses’ statements and photographs are important. Costs are more likely to be awarded in an enforcement case than in other planning matters. For more information about enforcement orders, see VCAT’s fact sheet, ‘Enforcement orders under the Planning and Environment Act 1987 ’ (available at www.vcat.vic.gov.au) . It is a criminal offence to use or develop land in contravention of, or failing to comply with, a planning scheme, permit, or a section 173 agreement (s 126 PE Act). Other criminal liability provisions apply to company officers (s 128). Infringement provisions can be used by authorised officers (usually council officers) to enforce matters under section 126. Cancellation and amendment VCAT can cancel or amend a permit if it considers that there has been (s 87(1) PE Act): a a material mis-statement or concealment of fact in relation to the application for the permit; b any substantial failure to comply with the conditions of the permit; c any material mistake in relation to the grant of the permit; d any material change in circumstances that has occurred since the grant of the permit; e a failure to give notice in accordance with the PE Act; or f a failure to comply with sections 55, 61(2) or 62(1) (i.e. if the responsible authority failed to refer the application to a referral authority, or granted the permit even though the referral authority objected to the grant, or included inappropriate conditions on the permit). VCAT can also cancel or amend a permit that has been issued at its direction if it considers it appropriate and has been requested to do so by the owner or occupier or by any person who is entitled to use or develop the land (s 87A PE Act). VCAT can cancel or amend a permit at the request of the responsible authority, the referral authority, a person under section 89, the owner or occupier of the land, any person who is entitled to use or develop the land, or a person who objected or would have been entitled to object, in certain circumstances (s 87(3) PE Act). VCAT cannot cancel or amend a permit granted by the Governor in Council under section 95 (s 87(5) PE Act). There are limits on VCAT’s power to cancel or amend a permit (see s 88 PE Act). VCAT can order that no development occur, other than that specified in an order, while the matter is being heard. Before making an order, VCAT must consider whether an applicant should give an undertaking as to damages (s 93 PE Act). Appli- cants may be liable to pay the developer compen- sation for losses suffered as a result of a suspension of the development that proves unjustified (s 94). VCAT can also make cost orders. If you are seeking a permit cancellation or amendment, you should obtain advice from a lawyer or statutory planner. Combined permit and amendment process Often the use of land that is to be facilitated by the amendment of a planning scheme will be an ‘as of right’ land use under the amended planning scheme. If that is not the case, a person requesting the preparation of a planning scheme amendment may also apply to the relevant planning authority for a permit for the use of the land that would be permissible if the amendment were made (s 96A–96N PE Act). Amendments to the planning scheme and the planning permit application may then be considered concurrently. The procedure is then substantially the same as a planning scheme amendment, with opportunities to make submissions and panel hearings. Entitlement to notice of the application is severely restricted (s 96C PE Act). If the application is successful, the Minister for Planning grants the permit (s 96I PE Act) and directs the responsible authority to issue it (s 96J). Appeal against the grant of a permit pursuant to this procedure is effectively excluded (s 96M(3)). Environmental impact assessment Introduction An environmental impact assessment is a procedure for assessing the impacts on the environment likely to result from development proposals. It is primarily a scientific technique existing within a legal framework.