Planning and Environment (Planning Schemes) Act 1996

The Act does not define “new planning scheme” in a single place, but the concept operates throughout Part 3: it means a planning scheme prepared under section 18 (by a council) or section 21 (by the Minister). Such a scheme replaces the “old” or “revoked” scheme in force immediately before the new scheme’s commencement. The Act introduces the requirement for a “municipal strategic statement” (MSS), which is a document setting out the strategic planning direction for the municipality and is to be included in the new scheme (section 19). The MSS is prepared under section 12A of the Principal Act as amended, so its legal status is that of part of the planning scheme. The Victoria Planning Provisions (VPPs) are not defined in this Act but are referred to in the purpose (section 1(c) of the Act) as an object of the overall reform; the VPPs themselves are made under the Principal Act. The term “responsible authority” carries the same meaning as in the Principal Act - usually the council - and is the body that enforces the scheme and decides permit applications. A “planning permit” is a permission granted under the Principal Act for use or development of land; the Act provides special rules for permits that are issued at the same time as the approval of a new scheme (section 23). The concept of “deemed validity” is central: section 22(1) provides that once a scheme is approved under Part 3, it is taken to have been duly approved and is valid and effective in all respects. The ouster clause in section 22(2) then prohibits any court or tribunal from questioning that validity. The Act also creates a distinction between the “revoked scheme” (the old scheme) and the “new scheme” for the purposes of preserving rights, liabilities, proceedings, contracts, and arrangements (section 24). The Port of Melbourne Area is defined by reference to the Principal Act (section 16A) and is excluded from council-prepared schemes; instead, the Minister may prepare a scheme for that area under section 21(1A). The Act also introduces a modified concept for permit expiry in extractive industries: a permit granted under section 96I of the Principal Act in connection with a new scheme may specify that it expires if the use is discontinued for a period of not less than two years, overriding the standard expiry provisions (section 23(5) and (6)).

The Act imposes primary obligations on each municipal council in Victoria. Under section 18, each council must prepare a new planning scheme for its district and for any adjoining area for which it is the planning authority. Under section 19, the council must also prepare a municipal strategic statement for inclusion in that scheme. The Minister may set a date for submission; if the council fails to submit by that date, the Minister can prepare and approve a scheme itself and recover the costs from the council (section 20). This creates a direct financial disincentive for delay. The Minister is also affected as the default planner for areas without a council (section 21) and for the Port of Melbourne Area (section 21(1A)). Landowners and occupiers are affected by the notice requirements in section 23: if a council recommends to the Minister that a permit be granted as part of a new scheme, the owner and occupier must be given at least 30 days’ notice and a copy of the proposed permit. Applicants for planning permits whose applications were lodged under the old Act but not decided before the new scheme commences are affected by section 25: the application must be decided under the new scheme. Appellants whose appeals were lodged but not determined before the new scheme commences are also affected: section 26 requires the appeal to be determined under the new scheme as in force at the date of determination. This introduces uncertainty for applicants and objectors who had prepared their case under the old rules. The Administrative Appeals Tribunal (now VCAT) is affected because its jurisdiction over appeals is modified - it must apply the new scheme regardless of when the original application was made. The Supreme Court’s jurisdiction is ousted by section 22(2), which prevents any proceeding questioning the validity of a scheme approved under Part 3, and section 27 states the intention to alter section 85 of the Constitution Act 1975. This limits the ability of any person to challenge a scheme on procedural grounds. Extractive industry operators are specifically affected by section 23(5) and (6), which create a special expiry regime for permits for extractive industry use or development: the permit can expire if the use is discontinued for a specified period (at least two years), overriding the normal expiry rules. The Port of Melbourne Area is a distinct affected entity: councils do not prepare schemes for that area, and the Minister has exclusive power to do so.

The Act imposes a clear duty on each municipal council to prepare a new planning scheme for its municipal district “as soon as practicable” after commencement (section 18(1)). The council must also prepare a municipal strategic statement for inclusion in that scheme by the date specified by the Minister (section 19(1)). If it fails to meet the Minister’s date for submission, the council has a duty to pay the Crown the costs incurred by the Minister in preparing the scheme (section 20(5)). That cost is determined by the Governor in Council and is not subject to negotiation. The Minister has a reciprocal right to prepare and approve a scheme if the council defaults (section 20(2)). For the Port of Melbourne Area, the Minister has a right but not a duty to prepare a scheme (the word “may” is used in section 21(1A)). Landowners and occupiers have a right to at least 30 days’ notice of a council’s intention to recommend to the Minister that a permit be granted as part of the new scheme, and to a copy of the proposed permit (section 23(1) and (2)). This is a procedural right designed to allow objection before the permit is bundled with the scheme. The Minister has a broad right to grant a permit under section 96I of the Principal Act for any purpose for which the new scheme would require a permit, subject to any conditions the Minister thinks fit, and must do so within three months of the scheme’s approval (section 23(4)). Applicants for permits have a qualified right: pending applications are decided under the new scheme (section 25(1)). However, if notice of the application had already been given under section 52 of the Principal Act before the new scheme commenced, the applicant is entitled to rely on that notice: any exemption from notice in the new scheme does not apply, and any additional notice requirements also do not apply (section 25(3)). This prevents the new scheme from either shortening or extending the notice period mid-stream. Appellants have a right to have their appeal determined under the new scheme as in force at the date of determination (section 26(1) and (2)). This is a substantive change from the old rule that the scheme at the date of the original decision applies. The Act also protects continuing rights and liabilities: all rights and liabilities existing under the revoked scheme continue under the new scheme to the extent the new scheme has provisions to like effect (section 24(2)(c)). Similarly, proceedings, arrangements, contracts, and agreements that were valid under the old scheme are preserved and may be enforced against the responsible authority for the new scheme (section 24(3)).

The Act itself does not create specific pecuniary penalties or criminal offences for non-compliance. Enforcement of planning controls under the new scheme falls under the Principal Act, not this transitional Act. However, the Act does impose a significant financial consequence on councils that fail to submit a planning scheme by the Minister’s date: the council must pay the Crown all costs determined by the Governor in Council to have been incurred by the Minister in preparing the scheme (section 20(5)). That is effectively a penalty for delay, though the amount is determined by executive decision and is not subject to court review. The more potent enforcement mechanism is the ouster clause in section 22(2): a planning scheme approved under Part 3 cannot be called into question in any proceeding in any court or tribunal, or in any proceeding by way of review under the Principal Act or Part 3 itself. This means that even if there were procedural defects in the preparation of the scheme, no party can enforce a challenge to its validity. That is a form of immunity from enforcement of procedural requirements. The Act also expressly states that the limitation on jurisdiction is intended to alter or vary section 85 of the Constitution Act 1975 (section 27), which suggests the drafters recognised the constitutional sensitivity of ousting judicial review. For extractive industry permits granted under the modified procedure in section 23(5) and (6), the permit itself can expire if the use is discontinued for the period specified (not less than two years), and sections 68(2)(b) and 68(3)(d) of the Principal Act do not apply. That means the standard expiry rules do not operate, and the permit can be lost through disuse without any formal enforcement action. The Act also provides that the Principal Act except certain sections applies to the preparation and approval of a scheme by the Minister under section 20(2) and section 21, so the normal enforcement mechanisms of the Principal Act (such as enforcement orders and penalties) would apply to breaches of the scheme once approved.

The Act is explicitly an amendment to the Planning and Environment Act 1987 and is to be read together with that Act. The purpose clause states that its main aim is to amend the Principal Act in four specified ways (section 1). Part 2 of this Act originally contained the actual amendments, but that Part has been repealed, so the only surviving interaction is through the transitional provisions in Part 3. The Act provides that, subject to Part 3, the Principal Act as amended by this Act applies to the preparation of a new scheme as if it were an amendment to a planning scheme (section 18(2)). However, sections 96A to 96D of the Principal Act are excluded from applying to schemes prepared under Part 3 (sections 18(3) and 21(3)). Those sections deal with combined permit and amendment procedures, so this Act creates a distinct streamlined procedure. The Act modifies sections 96E, 96G, and 96I of the Principal Act for the purposes of issuing permits with new schemes (section 23(3) and (4)). Specifically, the words “as amended by the proposed amendment” are omitted from section 96E(1)(a), and section 96G(1)(c) is substituted to allow a permit to be granted for any purpose for which the new scheme would require a permit. The Act also expands the Minister’s power to grant permits under section 96I by removing the reference to a related amendment and allowing a three-month grant window. The Act expressly provides that sections 12(1)(a) and (e), 12(2), 12(3), Divisions 1 and 2 of Part 3, and section 39 of the Principal Act (and any regulations for those provisions) do not apply when the Minister prepares a scheme under section 20(2) (section 20(3)). That excludes some notice, exhibition, and approval requirements. The Act also overrides the normal permit expiry provisions for extractive industry permits: sections 68(2)(b) and 68(3)(d) of the Principal Act are expressly disapplied (section 23(6)). The most significant interaction is with the Constitution Act 1975. Section 27 declares that it is the intention of section 22(2) to alter or vary section 85 of the Constitution Act, which protects the Supreme Court’s jurisdiction. This is a formal statement required to overcome the constitutional presumption against ousting court review. The Act also interacts with the Victorian Civil and Administrative Tribunal Act 1998 indirectly through references to the Administrative Appeals Tribunal (now VCAT) in section 26. The Act itself does not amend VCAT’s enabling Act, but it changes the substantive law that VCAT must apply.

The Planning and Environment (Planning Schemes) Act 1996 received Royal Assent on 17 December 1996 and came into operation on that same day (section 2). It has been amended by three subsequent Acts. The first amendment was by the Planning and Environment (Amendment) Act 1998 (No. 72/1998), which inserted subsections (5) and (6) into section 23. Those provisions introduced the special expiry regime for extractive industry permits granted under the new scheme procedure. The amendment commenced on 3 December 1998. The second amendment was by the Planning and Environment (Port of Melbourne) Act 2003 (No. 77/2003), which inserted section 16A (defining Port of Melbourne Area), inserted section 18(4) (exempting that area from council-prepared schemes), inserted section 21(1A) (giving the Minister power to prepare a scheme for that area), and amended section 27 to add subsection (2) (confirming the intention to alter the Constitution Act for Port of Melbourne schemes). Those provisions commenced on 22 October 2003. The third and most significant amendment was by the Statute Law Revision Act 2011 (No. 29/2011), which repealed Part 2 of the Act in its entirety, including the heading and sections 4 to 16, effective 22 June 2011. That repeal removed the substantive amendment provisions that had originally amended the Planning and Environment Act 1987. As a result, the Act now consists only of Part 1 (Preliminary: sections 1-3) and Part 3 (Transitional: sections 16A-27). The transitional provisions remain in force because they govern the old-to-new scheme transition and continue to apply to any scheme that was prepared under them. However, for practical purposes, the Act is largely spent because all councils have long since prepared new schemes under its provisions. The endnotes confirm that the Bill was passed with absolute majorities in both Houses, as required by section 85(5) of the Constitution Act 1975, because of the ouster of court jurisdiction.

The Act itself does not explicitly name any cases, and the endnotes show no entries under “Explanatory Details” as at publication date. However, the existence of section 27 - which declares an intention to alter section 85 of the Constitution Act 1975 - indicates that the drafters anticipated constitutional challenge to the ouster clause in section 22(2). It is reasonable to infer that the validity of schemes approved under Part 3 has been tested in litigation, but the source provides no specific case names. The ouster clause appears intentionally broad: it prevents any proceeding in any court or tribunal and any proceeding by way of review under the Principal Act or Part 3 itself. A party wishing to challenge a scheme approved under Part 3 would likely have to argue that the ouster clause itself is constitutionally invalid because it impermissibly removes the Supreme Court’s supervisory jurisdiction. Section 27 is the formal statement required by section 85(5) of the Constitution Act to authorise such a removal. Without that statement, the ouster would be ineffective. The addition of section 27(2) by the 2003 amendments specifically addresses Port of Melbourne Area schemes, suggesting particular concern about challenge to schemes for that area. There may also have been litigation concerning the transitional permit provisions - for example, whether a permit granted under the modified section 96I procedure was validly granted within the three-month window, or whether the special extractive industry expiry provisions were properly applied. However, without case names from the source, it is not possible to provide a definitive analysis. A diligent legal researcher would search for decisions under this Act in the Supreme Court of Victoria or VCAT. The Act’s interaction with the Constitution Act means any successful challenge would likely turn on whether the statement of intention in section 27 was adequate to oust review for jurisdictional error, as distinct from merits review. The limitation of jurisdiction is confined to challenges to the scheme’s validity; it does not oust review of permits granted under the scheme or of enforcement proceedings. So the litigation history would likely involve attempts to invalidate whole schemes on procedural grounds - attempts that section 22(2) is designed to foreclose.

The most significant trap is in section 22(2): once a planning scheme is approved under Part 3, no court or tribunal can question its validity. This ouster clause is sweeping. It applies even if the scheme was prepared in breach of procedural requirements. The only possible escape is a constitutional challenge to the ouster itself, and section 27 is drafted to pre-empt that. Practitioners should assume that a scheme approved under Part 3 is effectively immune from invalidation. The second trap is the interplay between section 25(3) and the new scheme’s notice requirements. If notice of a permit application was already given under section 52 of the Principal Act before the new scheme commenced, then any exemption from notice in the new scheme does not apply - but also any additional notice requirements in the new scheme do not apply. That means the responsible authority cannot rely on the new scheme to reduce the notice period, but equally cannot demand extra notice. This could create confusion if the new scheme has a different list of who must be notified. The third trap is section 26: appeals against decisions made before the new scheme commenced are determined under the new scheme as in force at the date of determination by the tribunal. That means the substantive planning controls can change between the original decision and the appeal hearing, potentially to the prejudice of either the applicant or the objector. An applicant who was refused under the old scheme might find the new scheme even more restrictive. The fourth trap is for councils: if the Minister prepares a scheme due to council delay, the council must pay the Minister’s costs as determined by the Governor in Council. The amount is not contestable. That is a potentially significant unbudgeted liability. The fifth trap is for extractive industry operators: if a permit is granted under section 96I of the Principal Act as modified by section 23(5) and (6), the permit can specify its own expiry period (not less than two years) if use is discontinued. The normal expiry provisions under the Principal Act do not apply. That means the operator cannot rely on the standard rules; the permit itself will say when it expires for non-use, and that period might be as short as two years. Operators should check the permit carefully. The sixth trap is for anyone relying on the continuation of rights under section 24(2)(c): rights and liabilities under the revoked scheme continue only “to the extent that the new planning scheme has provisions to the like effect”. If the new scheme changes the rules, the old rights may not survive. The seventh trap is the Port of Melbourne Area exclusion: if land is within that area, the council has no obligation to prepare a scheme for it, and the Minister may do so separately. Landowners should not assume that the local council’s new scheme applies to them. The eighth trap is the deemed validity provision: even if the scheme appears to have defects on its face, no legal proceeding can challenge it. This means a party cannot wait and later argue that a permit was invalid because the scheme was invalidly made.

For municipal councils, compliance is straightforward but time-sensitive. The council must prepare a new planning scheme under section 18(1) as soon as practicable after the Act’s commencement, though in practice this obligation arose in 1996 and is now historical. The council must also prepare a municipal strategic statement under section 19(1) and submit the scheme to the Minister for approval by the date specified by the Minister. If the council misses the date, the Minister can step in and the council must pay the costs (section 20(5)). When preparing the scheme, the council must follow the Principal Act as amended, treating the preparation as if it were an amendment to a planning scheme, but with the important exclusions: sections 96A to 96D of the Principal Act do not apply (section 18(3)). That means the combined permit and amendment procedure under those sections is not available; the council must use separate procedures. If the council wishes to recommend to the Minister that a permit be granted along with the new scheme, it must comply with section 23(1) and (2): give the owner and occupier of the affected land at least 30 days’ notice of the intention and a copy of the proposed permit. Failure to do so would likely invalidate the permit recommendation. The council should also note that under section 23(3)(b), the substituted version of section 96G(1)(c) of the Principal Act allows a permit to be granted for any purpose for which the new scheme would require a permit - not just for a use or development that is an amendment to the scheme. For applicants for permits, the key compliance point is timing. If an application was lodged under the old Act but not decided by the new scheme’s commencement, the decision must be made under the new scheme (section 25(1)). If objection notices had already been given under the old Act, the applicant cannot rely on any notice exemptions in the new scheme, nor can the responsible authority impose additional notice requirements (section 25(3)). For appellants, the appeal will be heard and determined under the new scheme as at the date of determination (section 26). That means the appellant should review the new scheme carefully and adjust arguments accordingly. For extractive industry operators, the permit must be checked for any special expiry condition under section 23(5). If the permit specifies a period of non-use after which it expires, the operator must ensure that use is not discontinued for that period; the normal two-year continuation period in the Principal Act does not apply. For any party dealing with a scheme approved under Part 3, the most important compliance step is to accept that the scheme’s validity cannot be challenged. Do not attempt to bring proceedings questioning the scheme; they will be struck out by section 22(2). Instead, any dispute should focus on the application of the scheme to specific permits or enforcement actions. For the Port of Melbourne Area, councils must ensure that any part of their municipal district within that area is excluded from their new scheme (section 18(4)), and the Minister will deal with it separately. For legal practitioners advising clients, the core advice should be to verify whether the scheme was approved under Part 3 or under the ordinary provisions of the Principal Act; if it was approved under Part 3, the ouster clause applies.