22 Apr Planning Scheme Amendment Process
I often get asked about planning scheme amendments, how the process works and what the implications are for current projects.
The typical process for a significant planning scheme amendment is described below. While the process for Council driven amendments and private amendments (those facilitated by private land owners) are fairly similar, I am focusing on Council driven amendments in this article. You can also read more information about planning scheme amendments from the State Government.
Amendment Process
Step 1 Authorisation of the Amendment
To start the formal process, the council must get authorisation from the Minister. First there will be research and analysis undertaken to identify the strategic direction or outcome that is sought. This analysis and strategic direction is put forward to support the need for the proposed planning scheme amendment.
Step 2 Preparation of the Amendment
Once the amendment has been authorised, the council must prepare all of the necessary documents. This may involve additional research and analysis to determine the final planning scheme outcomes and support the planning scheme amendment. During this process, the council may engage with affected stakeholders as part of the research.
Step 3 Public Notification of the Amendment
Once the planning scheme amendment documentation has been finalised, it is put out for public comment. The scope of the amendment will influence the extent of this stage. For a major amendment that impacts a lot of property owners, there will likely be several different methods utilised such as holding public information sessions, contacting key stakeholder groups directly, large mailouts and online information.
Step 4 Submissions to the Proposed Amendment
The purpose of the public notification or exhibition of the amendment is to seek out any comments from interested parties. All of these submissions will then be considered as part of the process of shaping the final amendment. An independent Planning Panel will be formed to consider all of these submissions and make a recommendation. Depending on the complexity of the amendment and number of submissions received, the panel process can involve several days or weeks of submissions being presented. As part of the process, the Planning Panel may require further information or research to be provided by the council, to support aspects of the proposed amendment.
Step 5 Decision
Once the Planning Panel has concluded, they will prepare a report with recommendations that respond to all of the submissions raised. This will then go back to the council and they will make a final decision to either adopt, change or abandon the amendment, based primarily on this report. Once that decision is made, they will submit it to the Minister. If the council is proceeding with the amendment, they will request that the Minister approve the amendment.
If the Minister approves the amendment, the planning scheme is amended from that gazettal date.
What Happens After the Amendment is Approved
Once the amendment is approved by the Minister, it will be immediately incorporated into the planning scheme.
One thing to be aware of is that with most planning scheme amendments there is no transition period between the old and new planning scheme. The new planning scheme simply takes effect from that date. This has significant implications for planning application decisions:
Council’s assessment on a planning application is made on planning controls at the time of the decision, not the controls when the application was made. Once an Amendment is introduced, these new rules will be used in making all decisions. This can mean that something that was allowed when you lodged will no longer be allowed by the time the decision is being made.
How Does a Proposed Amendment Affect Planning Decisions?
To try and smooth the transition from old to new, councils will often start making decisions based on the new, impending controls. Typically this will be when the amendment is awaiting approval with the Minister, but the council may encourage applicants to have regard to the proposed new planning scheme much earlier to reduce the surprise effect.
Transition periods are sometimes written into the planning scheme amendment. The use of transition periods is, however, the exception rather than the rule and most planning scheme amendments will simply apply from the date they are approved. For this reason, any planning scheme amendments that impact the project should be carefully analysed, even if it hasn’t been approved yet.
Time Frame for Amendments
It is worth noting that the planning scheme amendment process outlined above is quite a lengthy one, with time measured in months between each step and the total time taken often being more than 18 months. For example, Kingston Council recently overhauled their residential zones and planning controls. This amendment was exhibited in August 2022, adopted by the Council following changes in August 2023 and then not approved by the Minister until the following May. So the process from exhibition to incorporation into the planning scheme took almost 2 years! This is unfortunately a fairly typical timeframe for complex or large changes to the planning schemes.
It is also worth pointing out that the Victorian Civil and Administrative Tribunal (VCAT) are bound by the same rules as the council when making a decision. If a planning scheme amendment is approved before a case is heard by the tribunal, the decision will be made on the new planning controls. With waiting times of up to 8 months for a hearing date, this can make it significantly harder to “beat” an amendment. VCAT will also have regard to amendments that aren’t yet approved but are “seriously entertained”. An amendment is typically considered “seriously entertained” if the Planning Panel is supportive of it in their report or it has been submitted to the Minister for approval.
Hopefully the above information will give you a good idea of how far along an Amendment is and how soon it will be completed. Planning Scheme Amendments are typically fairly slow moving events, but as they can have dramatic consequences for projects, they should be watched and considered carefully.