The Minister for Planning gazetted Amendment VC194 (Amendment) on 25 March 2021. The Amendment sets out a new and significantly streamlined approvals pathway for public projects, by introducing two new provisions to all planning schemes:

• Clause 52.30 (State projects), which allows the Minister for Planning to exempt defined infrastructure projects from planning scheme requirements; and
• Clause 52.31 (Local Government projects), which allows Councils to progress projects with a value of less than $10 million without a planning permit.

What does the Amendment allow for?

The Amendment continues to support the broad push for infrastructure delivery that is facilitated by Victoria's 'Big Build', with a focus on priority State and Local Government projects.

The processes facilitated by the Amendment, as it relates to State Government projects, allows for:

Designation of a project as a 'State project'.

The Minister for Planning is empowered to designate a project as a 'State project', provided that it meets certain criteria. These criteria are broad – for example, requiring a project to be either proposed, funded, or partially funded by the State Government or a public authority, and that the project supports Victoria's continued economic recovery from COVID-19. The Minister must also have regard to a number of matters in deciding to designate a project, including relevant planning provisions and significant social effects of the project. There are also limitations on the scope of projects that can be designated in this way. For example, projects that require an Environment Effects Statement, are associated with the Level Crossing Removal Authority (LXRA), or the Director of Housing cannot proceed under these provisions. There is no obligation set out in Clause 52.30 for the Minister or the Department of Environment, Land, Water and Planning (DELWP) to provide any public notice or confirmation of any particular project obtaining designation as a 'State project'.

Exemption of 'State projects' from planning scheme requirements.

The effect of the designation of a project is that it will not require a planning permit to be obtained, and will be exempt from any prohibition on use or development of that project.

Satisfaction of pre-commencement requirements.

The designation of a project as a 'State project' is then followed by submission to, and approval by, the Minister of a suite of documentation (similar to documents required pursuant to a planning permit application), which can be varied or waived by the Minister.

Flexibility in documentation and consultation.

Importantly, the Minister for Planning retains flexibility within the controls to vary (or waive) some or all of the requirements relating to documentation and public consultation. Further, following approval of documentation, amendments to the form of the project can be approved by the Minister for Planning at any time. There is no consultation process explicitly contemplated in relation to the amendment of documents. Similarly, while there are consultation obligations set out in Clause 52.30 required after approval, but prior to commencement of the use or works, these can also be varied, or entirely waived by the Minister.

In addition, there are particular powers provided to the Secretary of DELWP relating to the management of native vegetation. These are designed to increase flexibility in relation to how offsets are secured and delivered for projects, and will assist with the delivery of early works packages on projects.

The powers provided to the Minister for Planning in relation to the designation of State projects extend to 30 June 2025.

DELWP has released guidelines to support the assessment of projects pursuant to this Clause.

What makes these controls different to existing approval processes?

The 'State project' provisions within Clause 52.30 create a significant alternative pathway for the approval of State projects, particularly when compared to existing processes. This includes for example, a decision of the Minister for Planning to approve Incorporated Documents through Planning Scheme Amendments pursuant to section 20(4) of the Planning and Environment Act. Clause 52.30:

• removes the need for the formal steps associated with a planning scheme amendment or a planning permit, requiring the Minister for Planning to only designate the relevant project, and approve supporting plans or documents, for a project to be able to proceed;
• significantly reduces risks associated with project approval processes – for example, by removing Parliamentary disallowance risks that exist in respect of planning scheme amendments (including Incorporated Documents), and removing objector appeal rights that may exist in relation to planning permits;
• provides a new ability for the Minister for Planning to significantly vary or waive both consultation and documentation requirements in respect of designated projects; and
• allows flexibility in the development of a project, with amendments to plans and other documents similarly requiring approval from the Minister for Planning in place of , for example, formal amendments being gazetted to an Incorporated Document.

These changes are supported by the exemptions for Local Councils contained in Clause 52.31, which will allow projects at a municipal level to proceed in an expedient manner to benefit local communities. Unlike State projects, there is no express time limitation on when these new requirements can be used.

We expect that the Amendment will provide both State and Local Governments with significant opportunities to speed-up the delivery of important infrastructure projects, as Victoria continues its economic recovery from COVID-19.

If you are working on an important project and would like to discuss whether it could benefit from the new provisions, please contact our Environment and Planning team.