Town Planning Decisions in Victoria & South Australia

The scope that planners have in relation to what they can consider when assessing a development application varies considerably between Victoria and South Australia.

In Victoria, planners are given wide scope to take into account factors that they consider are relevant to an application in certain circumstances.

In South Australia, planners are limited to the provisions of the Planning & Design Code (Code) and for certain applications they are limited to specific provisions of the Code.

In my mind, the Victorian approach probably makes more sense. Planners study for years in order to make sound planning decisions. Further, development is complicated, cities are complicated. It’s impossible to know what factors will be relevant to each and every possible future town planning application.

That being said, I can understand the reasoning of the South Australian approach. Applicants can have some certainty around what their proposals will be assessed against. This is important as well. As time goes on and decisions are made under the new South Australian system, it will become evident from the town planning outcomes if this more restrictive approach is ideal.

What can planners consider in Victoria when deciding on an application?

Victorian town planners have a wide scope in terms of what they can consider when deciding on an application.

This is a reflection of Victoria’s integration of ‘integrated decision-making’ into their planning regime. This requires planners to consider a range of things when assessing an application.

Section 60(1) of the Planning and Environment Act 1987 (Vic) says:

(1) Before deciding on an application, the responsible authority must consider —

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

© all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.

That is a broad range of considerations that the relevant authority MUST consider in their assessment of an application.

There are further items that a relevant authority MAY consider in section 60(1A), which allows even wider discretion:

(a) (repealed)

(b) the approved regional strategy plan under Part 3A; and

© any amendment to the approved regional strategy plan under Part 3A adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and

(d) the approved strategy plan under Part 3C; and

(e) any amendment to the approved strategy plan under Part 3C adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and

(ea) the approved strategy plan under Part 3D; and

(eb) any amendment to the approved strategy plan under Part 3D adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and

(f) any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970; and

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

(h) any amendment to the planning scheme which has been adopted by a planning authority but not, as at the date on which the application is considered, approved by the Minister or a planning authority; and

(i) any agreement made pursuant to section 173 affecting the land the subject of the application; and

(j) any other relevant matter.

This considerably broadens the scope of what a planner may take into account in their assessment of an application.

My reading of this legislation is that it is aiming to temper the principal from National Trust of Australia (Vic) v Australian Temperance & General Mutual Life Assurance Society Ltd [1976] VR 592 that limits the decision makers discretion so that it can only be exercised for the reason that it is conferred. My reading of this was, I believe, confirmed by the Victorian Supreme Court of appeal in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27, where the Court said (at 134):

The correct statement of the position is that in deciding whether a permit should be issued under the Heritage Overlay control, the decision-maker is required to take into account all of the considerations directed by the Act and the Scheme to be taken into account for an application under that control. These are not confined to heritage considerations as is apparent from ss 4, 60 and 84B of the Act, and cls 15, 20, 21, 22, 43 and 65 of the Scheme.

There is no difference between the relevant considerations which apply under the Act and the Scheme when a decision-maker is considering an application for a permit under the Heritage Overlay alone, or when the application for a permit under the Heritage Overlay is sought as one of a number of permit applications that need to be made in respect of a particular proposal. In the latter situation, there may be multiple planning controls contained in the scheme each of which requires a permit to be obtained. The considerations relevant to each planning control will vary as directed by the Act and the Scheme. However, the considerations relevant to making a decision under the Heritage Overlay control will be the same regardless of whether that control is considered alone, or as one of multiple planning controls.

This shows that the legislation has given planners an ability to consider wide-ranging factors in their decision making.

What can planners consider in South Australia when deciding on an application?

Planners in South Australia are more limited by comparison.

Section 102 of the Planning, Development and Infrastructure Act 2016 (SA) contains matters against which development must be assessed:

(1) Subject to this Act, a development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):

(a) —

(i) the relevant provisions of the Planning Rules; and

(ii) to the extent provided by Part 7 Division 2 — the impacts of the development,

The Planning Rules are defined in section 3 to mean:

(a) the Planning and Design Code; and

(b) the design standards that apply under Part 5 Division 2 Subdivision 4; and

© any other instrument prescribed by the regulations for the purposes of this definition.

At the time of writing, subsections (b) and © have no work to do in this definition. So, the Planning Rules are the Code.

The reference to the impacts of a development in section 102(a)(ii) is a reference to impact assessed development — major developments that require an environmental impact statement to be submitted along with the application. These will be a minority of applications.

So, planners in South Australia are limited to considering the provisions of the Code. The Code is more than 8,000 pages long, so that’s a lot to consider. Even so, there is no mention of strategy plans, policy documents or the objectives of planning. To me, it seems a bit restrictive.

It’s even more restrictive when you consider this clause in Part 1 of the Code:

The policies specified in Table 3 constitute the policies applicable to the particular class of development within the zone to the exclusion of all other policies within the Code, and no other policies are applicable.

In each zone, table 3 relates to ‘performance assessed development.’ This is development that is assessed on its merits against the Code. Interestingly, the Code tries to limit the specific policies that apply to certain applications in each zone. This looks to be quite restrictive in terms of what a planner can consider when assessing certain applications.

The question I ask myself is how sound planning decisions are meant to be made when a town planner is so limited in what they can consider when looking at an application? I am certain that the Code can’t be a document that has considered every possible development in every possible location and knows all of the policies that will be relevant.

Since the Code is new, it’s not clear how the courts will interpret it. Under the previous system, the case law provided that development plans weren’t to be strictly interpreted. They were planners’ documents. However, I’m not sure if that will be that case with the Code. It seems clear to me that it’s drafted in a different manner. Time will tell in this regard.