29 May 2020
The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (Victorian Act) was assented to on 24 April 2020. The Victorian Act provides powers to create Regulations to address COVID-19 related matters, with a limit of 6 months on this power.
The Victorian Act amends the Planning and Environment Act 1987 (Vic) (P&E Act) to:
- allow for documents that must be made available at a ‘designated entity’s office free of charge’ to be made available online;
- Alters hearing requirements for Planning Panels including that:
- The Panel will satisfy the “public hearing” requirement if the Panel makes the hearing available free of charge either while the hearing is being conducted or shortly afterwards;
- A person will be heard if heard by the Panel by electronic means.
These provisions are repealed 6 months after their commencement.
The Victorian Act also relevantly provides that:
- access to information under existing rights to inspect is enabled to occur via websites;
- local government meetings can be undertaken electronically, however it requires that local government meetings must be able to be made public, unless confidential;
- addresses open justice provisions by:
- allowing for Planning Panels Victoria to satisfy the requirement to conduct hearings in public if the hearing is available for viewing by electronic means, either during the hearing or as soon as reasonably practicable afterwards.
- empowering the head of a court to take measures they see fit for safety and ongoing administration of justice during COVID.
There are existing powers in the P&E Act to exempt use and development from planning schemes, and to amend planning scheme, which may have been relied on for interim measures.
An amendment to the Victorian Planning Provisions inserts clause 52.18 which exempts a use from complying with any obligation that limits loading and unloading for specified activities, including hospitals and supermarkets, while the COVID-19 state of emergency declaration is in force.[RP1]
Stimulus initiatives and advisory bodies
As with many jurisdictions, a taskforce has been set up to assist the government in economic stimulus measures through the development sector. For more information on the Victorian Building Victoria’s Recovery Taskforce see here, including its current investigations into priority projects across Victoria with the potential to be fast-tracked.
Non-COVID related environmental regulation reforms
- Of note is the decision to postpone key environmental reforms, by deferring the commencement of the Environment Protection Amendment Act 2018 (Vic) to 1 July 2021. The EPA says this is to “ease the burden on business and industry as they address the impacts of the current circumstances”. As a result, public consultation on the proposed updates to Victoria’s land-use planning system has now been extended by 4 weeks, with submission to now close on Tuesday 2 June 2020.
- Petroleum Legislation Amendment Bill 2020 (introduced 17 March 2020, not yet passed) – provides for an extension and end date of 1 July 2021 for the existing moratorium on any petroleum exploration and production. The Bill also proposes to impose conditions on offshore petroleum licensees to require that domestic customers will have the first opportunity to purchase petroleum recovered under the license.
- Constitution Amendment (Fracking Ban) Bill 2020 (introduced 17 March 2020, not yet passed) – amends the Constitution Act 1975 to entrench the existing legislated bans on hydraulic fracturing and coal seam gas exploration and mining. Hydraulic fracturing and coal seam gas exploration and mining are currently prohibited under the Mineral Resources (Sustainable Development) Act 1990 (Vic) and the Petroleum Act 1998 (Vic), as a result of amendments made by the Resources Legislation Amendment (Fracking Ban) Act 2017 (Vic).
- Flora and Fauna Guarantee Regulations 2020, made on 26 May 2020, with the objective of prescribing, for the purposes of the Flora and Fauna Guarantee Act 1988, the ‘(a) eligibility criteria for the listing of taxa of flora or fauna, communities of flora or fauna or potentially threatening processes; (b) information that must be included in nominations; (c) the form of certain notices, applications and certificates; (d) the decision-making criteria for the issuing of a licence or permit or the making of an Order for an authorisation.’
- Fisheries (Fees, Royalties and Levies) Amendment Regulations 2020, made on 17 March 2020, with an objective of amending levies for commercial fishery licences and individual quota units, and revoking notes indicating the bodies to whom the Minister will make a grant out of the proceeds of certain levies.
- Subordinate Legislation (Forests (Recreation) Regulations 2010) Extension Regulations 2020, made on 12 May 2020, extending the operation of the Forests (Recreation) Regulations 2010 until 25 May 2021.
Courts and hearings: From 18 May, the Victorian Civil and Administrative Tribunal is expanding the matters that can proceed to hearing, where the hearing can be conducted by telephone. Non-urgent matters or those that cannot be conducted by telephone have been adjourned. There is no clear provision to allow for public access to hearings, and VCAT will advise will in person hearings will resume.
The Court of Appeal is conducting all hearings via video link, with all other courts minimising as much as possible any in person hearings, and no provision for public to attend hearings.
Planning Panels Victoria are not listing any new face to face hearings and are exploring arrangements for online hearings. Directions hearings are proceeding via teleconference. Arrangements will be made to comply with the requirements of the Victorian Act.