Increased powers for protection of Victoria’s heritage buildings

Proposed changes to the Planning and Environment Act 1987 (Vic) (Act) will strengthen the powers available to local authorities to respond to unlawfully demolished heritage buildings and heritage buildings which have fallen into disrepair.

Snapshot

Under the proposed changes:

• Planning schemes may prohibit the development of land on which a heritage building has been unlawfully demolished or fallen into disrepair.
• Planning schemes may regulate the development of land on which a heritage building has been unlawfully demolished or fallen into disrepair, by not granting planning permits unless reconstruction, reinstatement or repair is included.
• Governor-in-Council orders may prohibit use or development of land for up to 10 years, in certain circumstances.

Other matters regarding compensation claims, notification, publication and inspection requirements, and Panel hearings and reports are also captured in the proposed changes.

Increased controls over heritage properties

The Bill will allow planning schemes to be amended to introduce controls which regulate or prohibit the development of land on which there is or was a heritage building that has been unlawfully demolished, in whole or in part, or fallen into disrepair.

‘Heritage buildings’ are defined to mean a building which is a place, or forms part of a place, that has been given heritage protection under a planning scheme. An example of this given in the Bill’s explanatory memorandum is a building protected by a Heritage Overlay within a planning scheme.

The purpose of these controls are stated to be to deter persons from unlawfully demolishing heritage buildings or allowing them to fall into disrepair, and to prevent persons from obtaining a benefit (from future development) for such conduct.

This provides significant power to local authorities, in addition to controls and policy already contained within the Heritage Overlay and local planning policies seeking to regulate future development.

For persons who have unlawfully demolished a heritage building and been found guilty of an offence for this under the Act, an order gazetted by the Governor-in-Council may be made, which will have the effect of nullifying any planning or building permit authorising the development of the land, or preventing the grant of a planning or building permit for the development of the land (unless exempted). An order may remain in effect for up to 10 years.

The extent of current enforcement powers for unlawful demolition has recently been demonstrated, with the owners who unlawfully demolished the historic Corkman Pub being sentenced by VCAT to one month jail terms and incurring penalties exceeding $1million over a number of enforcement proceedings since 2016. The proposed changes will add to the arsenal of powers available to authorities to deal with this issue.

Other changes

The Bill also proposes a number of other changes to the Act, as follows:

• Clarifications are made to Part 5 of the Act, which relates to compensation for land being reserved for a public purpose, to ensure that compensation claims are not able to be made for land identified as ‘inner public purpose land’ (which is resolved through Infrastructure Contributions Plans) or for refused permit applications which were otherwise prohibited by the planning scheme.
• A number of the provisions in the Act regarding public notice, publication of documents and inspection of documents are being permanently updated (with the temporary Covid-19 measures to be repealed) to enable access by persons online, as opposed to the current provisions which only provide for access to documents in person at the offices of an authority.
• A Panel report for a planning scheme amendment that is initially provided to a planning authority must be made publicly available by the planning authority either (i) on the day after the planning authority decides whether or not to adopt the amendment, or (ii) 10 business days after receiving the Panel report, whichever occurs earlier. This is a change from the current requirement to publish the Panel report 28 days from receipt by the planning authority.
• Panel hearings may be conducted in person or by audio or audio-visual link. Hearings conducted by audio or audio visual link must be recorded to be available to persons after the hearing, and a Panel may not hear a person’s submission if they did not attend the hearing at the time specified for attendance by the Panel.
• Section 69 of the Act will allow for persons other than the owner or occupier of land to, with the written consent of the land owner, apply for an extension of time to a permit.
• Extractive industry permits (as defined) will only expire if such use is discontinued for a period of 10 years. This delivers on a commitment made in the Joint Ministerial Statement — Extractive Industries in August 2018 to provide greater flexibility around the expiry of extractive industry planning permits.
• The plan preparation costs incurred by the Victorian Planning Authority for Precinct Structure Plans and Development Contributions Plans / Infrastructure Contributions Plans may now be included in the levy calculation for those plans. This will avoid the VPA seeking cost recovery from individual landowners and developers within a plan area.

By Heidi Asten, Partner and Ellen Tarasenko, Senior Associate