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PLANNING LEGISLATION AMENDMENT BILL 2009 (NO.2)

         Planning Legislation Amendment
                    Bill 2009
                                  (No. 2)


                        Introduction Print

              EXPLANATORY MEMORANDUM


                               Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill.

Clause 2   provides for the Act to come into operation on the day after the
           day on which it receives the Royal Assent.

     PART 2--AMENDMENTS TO THE PLANNING AND
               ENVIRONMENT ACT 1987
Clause 3   amends section 20(5) of the Planning and Environment Act
           1987 to provide that the Minister cannot under that section
           exempt himself or herself or a planning authority from any
           requirement for an amendment that includes an Activity Centre
           Zone for a Relevant Activity Area within the meaning of new
           Part 4AA (inserted by clause 5 of the Bill) or to amend
           boundaries of such a Zone.

Clause 4   amends section 58 of the Planning and Environment Act 1987
           to prevent the responsible authority from considering or deciding
           on an application that falls within the operational area of a DAC.

Clause 5   inserts a new Part 4AA into the Planning and Environment Act
           1987. New Part 4AA provides for the establishment and
           functions of DACs, the appointment and removal of DAC
           members, the procedure of DACs and the conduct and probity
           requirements of the members and other persons providing
           services to DACs.




561443                                1         BILL LA INTRODUCTION 14/9/2009

 


 

New Division 1 of Part 4AA contains definitions for the purposes of that Part. New section 97MA provides the following definitions. A DAC is defined as a development assessment committee established under section 97MB, a DAC application is defined, in relation to a DAC, as an application for a permit or an amendment to a permit that is within the operational area of that DAC and an operational area, in relation to a DAC, is defined by referring to the classes of applications for permits and types of amendments to permits described in section 97MD(1) that are to be decided by that DAC. Relevant Activity Area is defined to mean any suburb listed in the Table in that definition. Relevant Activity Centre Zone is defined to mean a contiguous area designated in a planning scheme for a Relevant Activity Area as an Activity Centre Zone. New Division 2 of Part 4AA deals with the establishment and functions of a DAC. New section 97MB provides for the establishment of DACs by an order of the Governor in Council on the recommendation of the Minister. A section 97MB order will specify the classes of applications that a DAC may decide and the area or areas in a Relevant Activity Centre Zone or Zones for which the DAC is established. A DAC can apply in respect of more than one municipal district or more than one area in a municipal district. New section 97MC provides for the revocation or variation of a section 97MB order. The Minister is required to publish the details of each DAC on the Department's Internet site. New section 97MCA requires the Minister to refer certain matters to an Advisory Committee for advice regarding the classes of applications for permits to be decided on by a DAC and for the Committee to consult with certain bodies and persons before giving their advice. New section 97MD provides that the functions of a DAC are to decide classes of applications for permits that are specified in the section 97MB order and decide amendments to permits as described. These functions do not extend to applications referred to the Minister or to applications subject to a combined permit and amendment process. The DAC has the power to decide on amendments to permits previously granted by the DAC or the responsible authority as long as the permit after amendment is within the operational area of the DAC. This does not extend to the amendment of permits granted by the Minister. Subsection (3) provides for certain sections of the Planning and 2

 


 

Environment Act 1987 to apply referentially to a DAC when deciding a DAC application. New section 97ME requires a DAC to consider every application within its operational area. New section 97MF gives a DAC the same powers that the responsible authority would have had in deciding on the application if it were not a DAC application. New sections 97MG and 97MH require the responsible authority to provide a DAC with the necessary documents, information and support needed to enable the DAC to make decide an application. New section 97MJ(1) provides that a decision or failure to make a decision by a DAC is to be taken to be a decision of the responsible authority. New section 97MJ(2) requires the responsible authority to ensure that the register kept under section 49 of the Planning and Environment Act 1987 specifies if a decision on an application has been made by a DAC. New Division 3 provides for the membership of a DAC. New section 97MK outlines the membership of a DAC, which will consist of a Chairperson and two members to be nominated by the Minister and two members nominated by the municipal council that relates to the application. The two council nominated members will be drawn from a group of five persons who are councillors or members of staff of the council. The Minister must prepare a list of persons available for appointment as Chairperson or Alternate Chairperson of a DAC and consult with certain bodies before making a nomination from that list. New section 97ML provides for alternate members including an alternate Chairperson if a member is unable to act for any reason. A municipal council may nominate an alternate member from the other three persons nominated under new section 97MK(1)(c) if a council nominated member cannot act. While acting for a member, an alternate member has all the powers, authority and duties of that member. New section 97MM provides that the Minister has the power to suspend a member or alternate member for up to 3 months if the Minister believes on reasonable grounds that the member has acted corruptly or breached probity requirements for DAC members. The Governor in Council has the power to remove a member or alternate member from office at any time. A member 3

 


 

or alternate member can resign by providing a written resignation to the Minister. New section 97MN provides for the Governor in Council to appoint a member or alternate member to fill a vacancy in accordance with new sections 97MK or 97ML. New section 97MO requires the Minister to publish on the Department's Internet site the names of the members and alternate members of a DAC. New section 97MP provides for the conditions of membership of DAC members. Members' terms may be for up to three years, though a member may be re-appointed to a DAC. The Minister can determine the terms and conditions of the members. New section 97MQ provides that the Minister can determine payment of allowances and fees. Members of the municipal council and employees of the council or the Crown are not entitled to any additional payment for acting as a member of a DAC. New Division 4 of Part 4AA provides for the procedure of a DAC. New section 97MR provides that when making decisions the DAC is bound by the rules of natural justice and must act according to equity and in good conscience. New section 97MS provides for the procedures at meetings. A DAC meeting requires that a quorum of three members be present. The DAC may act as long as there is a quorum despite a vacancy. New section 97MT provides that a decision of the DAC will not be invalid if there is a vacancy in the DAC or a defect or irregularity in the appointment of a member. New section 97MTA requires that DAC meetings be open to the public and that public notice be given of a meeting. However meetings may be closed to the public in certain situations e.g. the subject matter is confidential, and in that case the reason for closing the meeting must be recorded in the minutes. New section 97MU provides that the Minister may determine any other procedures and the DAC must comply with those, otherwise the DAC may regulate its own procedures. New section 97MV is a referential provision providing that section 144 (an evidentiary provision) applies in respect of a DAC deciding a DAC application. 4

 


 

New Division 5 of Part 4AA provides for the probity requirements of DAC members. This Division is divided into 6 new Subdivisions. New Subdivision 1 consists of new section 97MW, which contains a definition of member of a DAC for the purposes of Division 5. This term includes alternate members of a DAC. New Subdivision 2 contains conduct principles for DAC members. New section 97MX outlines the principles of conduct that the members of a DAC must comply with, including acting lawfully and with integrity, impartiality, honesty and avoiding any conflict between their public duties as a member of a DAC and their personal interests or obligations and treating all people with respect, using resources prudently and acting in the public interest and preserving the public confidence in the DAC. New Subdivision 3 deals with misuse of position by DAC members. New section 97MY contains a definition of confidential information for the purposes of this Subdivision. New section 97MZ provides that a member of a DAC must not misuse their position or former position to gain or attempt to gain an advantage for themselves or for any other person or cause any detriment to the DAC or a responsible authority. New Subdivision 4 deals with conflicts of interest of DAC members and other persons. New sections 97MZA and 97MZB place a strong requirement on DAC members, and members of staff of responsible authorities and other persons who have been engaged to provide advice to the DAC, to disclose any conflicts of interest. Under new section 97MZA, a member of a DAC who is aware of a conflict of interest relating to a DAC application must advise the Secretary without delay and take no part in deciding the application. Failure to comply is an offence with a maximum penalty of 100 penalty units. Under new section 97MZB members of staff of the responsible authority or other persons providing advice or reports to the DAC must advise the DAC if they become aware of a conflict. Failure to do so is an offence with a maximum penalty of 50 penalty units. The disclosure must be recorded in the minutes of any relevant meetings of the DAC. If directed by the DAC a person must disclose the nature of the interest. 5

 


 

New section 97MZC provides that a conflict of interest includes a direct or indirect interest in a matter, though not if the interest is so remote or insignificant that it could not reasonably be regarded as capable of influencing any actions or decisions of the person in relation to the matter. New section 97MZD sets out the meaning of a direct interest in a matter. New sections 97MZE, 97MZF, 97MZG, 97MZH and 97MZI set out the various meaning of an indirect interest in a matter. New Subdivision 5 deals with returns of interests of DAC members. New section 97MZJ provides that Subdivision 5 does not apply to members or alternate members of a DAC who must submit returns under section 81 of the Local Government Act 1989. New sections 97MZL and 97MZM require members and alternate members of a DAC to submit returns to the Secretary detailing their interests including details of any company in which they hold an office or where they hold a significant beneficial interest, details of any interest in land that is in or adjacent to an area for which a DAC has been established, details of any trusts in which they or their family are a trustee or beneficiary or any other interest that may raise a material conflict. A member will be required to submit a primary return within 30 days of appointment and then submit ordinary returns every year. New Subdivision 6 deals with the register of interests of DAC members. New section 97MZN requires the Secretary to maintain a register of members' returns. The register may be inspected upon written application under new section 97MZO and under new section 97MZP members may inspect the names of persons who have inspected their returns on the register. New section 97MZQ provides that it is an offence to publish register information unfairly or inaccurately, the maximum penalty being 20 penalty units. New section 97MZR makes it an offence for Departmental employees to divulge, communicate or use information gained through their duties under Subdivision 5 or 6, the maximum penalty being 50 penalty units. New section 97MZS requires the Secretary to remove returns of a member of a DAC from the register as soon as practicable after he or she ceases to be a member or alternate member. 6

 


 

New section 97MZT requires the Secretary to keep the returns of a member or alternate member of a DAC for 3 years after ceasing to be a member and then to destroy them. PART 3--AMENDMENTS TO OTHER ACTS Clause 6 amends section 9 of the Docklands Act 1991 to omit the words "and to complete its involvement in that development by 31 December 2005". This removes the expiry date for the involvement of the Victoria Urban Development Authority in the Docklands development, allowing the Authority to have an ongoing role in the development. Clause 7 amends section 185(k) of the Heritage Act 1995 to increase the maximum penalty that may be prescribed for infringement offences under that Act to 10 penalty units. Clause 8 inserts new section 78B(3)(ca) into the Local Government Act 1989 to provide that a Councillor or a member of a special committee or Council staff, who is also a member of a DAC, is not to be regarded as having an indirect interest because of a conflicting duty in a matter solely because of his or her DAC membership. Clause 9 amends sections 5(a) and 5(b) of the Melbourne Convention and Exhibition Trust Act 1996 to allow for the Trust to operate throughout Victoria and to include entertainment as one of the purposes for which facilities and services may be used. This clause also amends section 5(d) of that Act to substitute an outdated reference to the "Council of the Museum of Victoria" with the "Museums Board of Victoria". PART 4--REPEAL OF AMENDING ACT Clause 10 provides for the automatic repeal of this amending Act on the first anniversary of its commencement. The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 7

 


 

 


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