The buck doesn’t stop with the Minister

November, 2017

By David Passarella, Partner and Brittni Dienhoff, Seasonal Clerk

Since the introduction of the Planning and Environment Act 1987 (Vic) (Act) in 1987, the law has vested Parliament with the right to revoke or partially revoke planning scheme amendments approved by the Planning Minister.[1]

Recently, the Victorian Upper House has exercised the power twice, with the successful revocation of Glen Eira Planning Scheme Amendment C170, which would have permitted the development of a 13-storey tower over Ormond station, and the failed attempt to revoke Boroondara Planning Scheme Amendment C251, which appoints the Minister for Planning as the responsible authority for the Markham Estate development in Ashburton. This power is very rarely exercised. In fact, the last time Parliament invoked section 38(2) of the Act was eight years ago.[2]

How the Parliamentary Revocation Power works legally

Section 38(1) of the Act provides that when a planning scheme amendment is approved, the Minister must put it before each House of Parliament within 10 sitting days. The Houses are then afforded a further 10 sitting days to consider the amendment and, if either House so decides, to pass a resolution to revoke the amendment wholly or in part.

If an amendment is revoked:

  1. any provision of a planning scheme that had been revoked by the amendment will come back into operation;[3] and
  2. any provision of a planning scheme that had been directly altered by the amendment will revert back to its previous form as if the revoked amendment had never been made.[4]

Notice of the revocation will then be published in the Government Gazette.

Implications of these eleventh hour revocations

The unusual move made by Parliament recently may be heralding in a new era of increased political involvement in the planning scheme approval process. The exercise of this revocation power not only involves a more active role played by Parliament, but it elongates the process and could necessitate planners and developers to return to the drawing board. Furthermore, it serves to highlight that Planning Panel and Ministerial approval may not signal the end of the road for developments as has been the general practice for some time. Parliament retains the right to have the final say and may start to exercise that right more often.

 

Contact Mills Oakley

For further information, please do not hesitate to contact:

david-passarella

David Passarella | Partner 
T: +61 3 8568 9527
E: dpassarella@millsoakley.com.au

 

 

[1] The Act s 38(2).

[2] http://planningschemes.dpcd.vic.gov.au/schemes/greatergeelong/ordinance/amlist_s_ggee.pdf

[3] The Act s 38(3).

[4] Ibid s 38(4).

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