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Pre-empting the challenges of the dual approvals process

In Victoria, quarry operators are required to obtain complementary approval conditions from both local and state government in the form of a planning permit and work authority, respectively.

An issue for operators arises when conditions on these different approvals for the same project are unworkable due to overlap, duplication, and/or variance in wording for the same requirement. The dual approvals process results in risks for the quarry operator, arising from increased time and cost navigating the pre-commencement approval conditions to commence works.

In Victoria, the Department of Economic Development, Jobs, Transport and Resources (DEDJTR) is the state authority responsible for work authority approvals under the Mineral Resources (Sustainable Development) Act 1990 (MRSD Act). Local government, and sometimes the Planning Minister, is responsible for the planning permit approval process under the Planning & Environment Act 1987 (P&E Act). Most large quarry operations need approval at both levels of government to facilitate commencement of their projects.

So, who bridges the gap between these two approvals processes and levels of government? In our view, the onus is on the quarry operator to guide the process and facilitate the links between the various regulators. This may assist with the approval of conditions that are complementary, and bridge the gap in what can sometimes be a disjointed process. The alternative is sometimes unworkable planning permit conditions, which cost time and money to fix.

Approvals process

{{quote-A:R-W:300-Q:"In May this year, DEDJTR released an implementation plan for the Continuous Improvement Project, which identifies practical steps for improving regulation of the earth resources sector in Victoria."}}Under Victorian legislation, a work authority to establish or modify a quarry operation cannot be approved until planning approval has been granted. Most new quarry development sites will require a planning permit through the relevant local council, unless the project has the potential to trigger adverse effects on the environment, in which case an impact assessment under the Environment Effects Act 1978 is required through an Environment Effects Statement (EES).

In Victoria, the decision on a project is dependent on the Planning Minister’s recommendations in response to the EES process.

Following EES approval to obtain a work authority, a “work plan” must be prepared for submission to DEDJTR. The work plan must address any recommendations arising from the EES.

Work plans must be prepared in consultation with the DEDJTR before applying for a planning permit. The process makes sense. The department has integrated the work authority and planning approval process to ensure technical and environmental issues that affect an extractive industry proposal are raised at the earliest possible stage, rather than emerging during the planning permit process.

The process can be summarised in the following flowchart (see Figure 1):

  • The DEDJTR provides an invitation to a site meeting to every referral authority (as defined in the P&E Act 1987) that it considers should be given the work plan. This includes those referral authorities listed at clause 66 of the Victorian Planning Provisions. The purpose of the site meeting is to identify the issues that should be addressed in the draft work plan. This site meeting is not mandatory, but is highly recommended. Typically, DEDJTR will identify and respond to technical viability issues of the project and council will respond to any ongoing land use considerations.

  • Once the draft work plan is complete, it is directed to the referral authorities for consent to statutory endorsement. The statutorily endorsed work plan will include any conditions requested by the referral authorities. Statutory endorsement of a work plan signals that it is suitable to support a planning permit application.

The purpose of the statutory endorsement of work plans is to remove the potential duplication of referrals that previously existed. When a quarry operator submits a work plan that has received statutory endorsement to council, the process is designed so council does not repeat the referrals already undertaken through the work plan process.

Process challenges

A problem arises when council introduces its own layer of regulation on issues already addressed and managed through the work plan when assessing the planning application.

Under Section 65 of the Planning Scheme, when deciding on a planning application council “must” consider the following issues that are likely to have already been considered in the work plan:

  • The effect on the amenity of the area.

  • Factors likely to cause or contribute to land degradation, salinity or reduced water quality.

  • Stormwater quality from the proposed development.

  • Impact on native vegetation.

  • Loading and unloading facilities and associated amenity, traffic or road safety impacts.

{{image2-a:r-w:300}}Issues such as traffic are not regulated by DEDJTR and it is here that council has a role in managing amenity impacts surrounding the site. However, for other issues such as air and noise, council could determine that these technical issues and amenity consideration have already been managed by DEDJTR through input from referral authorities and accept that they have been addressed through the conditions of the work plan.

It would make sense to rely on the assessment of the lead agency in extractive industry approval on these matters; however, the wording in the planning scheme is such that it opens up assessment of amenity issues for council to reconsider.

A number of councils in the urban growth areas and regional supply areas of Victoria have frequent interactions with DEDJTR on quarry-related matters and understand the process. Much of the risk around how an application is going to be dealt with, and to what degree amenity issues will be given attention, comes down to the preference of the council statutory planner assigned to assess the application.

Council can consider referral comments, re-examine issues and impose additional conditions on the planning permit to address amenity.

In effect, councils introduce any conditions they feel are required to address amenity and can introduce additional conditions to those already proposed by lead agencies such as the EPA to manage impacts such as air, noise and water quality.

So, although the quarry applicant may understand conditions imposed by the referral authority through the statutory endorsed work plan, the conditions a council may impose through the planning permit are often unknown until the permit is issued and may duplicate with the work plan conditions.

Councils with more exposure to extractive industry approvals processes will have a greater appreciation of the impact conditions can pose on quarry operations and an understanding of the broader work authority approval process.

Strategies for applicants

The disconnect between the planning permit and work plan processes in Victoria means that applicants must, for the time, being act as the link between the two statutory processes, to attempt to “iron out” any conditions before they are formalised.

Proactive steps applicants can take to ensure consistency between the work authority-specific conditions and the planning permit conditions include:

  • Arranging a planning permit pre-application meeting with the council statutory planner. Take a copy of your statutory endorsed work plan – along with a high level assessment against the applicable clauses of the Victorian Planning Provisions/Planning Scheme – to provide direction and comfort to council where amenity issues have already been identified and considered in the work plan and show how they respond to amenity considerations in the planning policy.

    Ask council to specifically review the work plan conditions and advise if it is likely to require additional conditions on their planning permit to address amenity issues beyond those identified as conditions in the work plan approval. If additional conditions are likely, arrange a meeting with DEDJTR and council to discuss these and the integration of both permits early in the planning process.

  • Ensure you are meeting with the right representatives of council. You need to engage with the council’s statutory planning department. Request a statutory planner who has experience/knowledge of the extractive industry work authority process.

    Record the name of the officer you deal with to ensure you refer to that officer in all your correspondence to council and to ensure continuity of the officer dealing with the application. If the project involves substantial traffic, vegetation, waste or water issues, request council engage all necessary representatives to attend the initial meeting so you have all the right people there.

  • Drive the process. Make council and the DEDJTR aware of the implications for your business of planning permit and work authority conditions. Arrange meetings between council and DEDJTR to discuss and identify how conditions can be drafted to meet amenity requirements through conditions that are reflected across both approval documents.

  • Request a draft of the planning permit conditions from council before the permit is formally issued. Some councils will provide applicants a draft of permit conditions if they understand the rationale for the request and are aware the applicant’s proactive measure will avoid the need for planning permit amendment down the track.

  • Request a review of permit conditions at the Victorian Civil and Administrative Tribunal (VCAT). Once the notice of decision or planning permit is issued, the quarry applicant can lodge an appeal against the conditions at VCAT if the conditions are unable to be implemented. An application for appeal at VCAT must be lodged within 60 days of the notice of decision or permit being issued.

  • Apply for an amendment to the planning permit. The applicant may have no choice but to apply for an amendment to the planning permit conditions. An application to amend a planning permit can be applied for under Section 72 of the P&E Act through applying formally to council, outlining your rationale and justification for amendment.

Government reform and support is, however, in progress to improve the approvals process. In May this year, DEDJTR released an implementation plan for the Continuous Improvement Project, which identifies practical steps for improving regulation of the earth resources sector in Victoria.

One of its focus areas is the regulatory system and targeting the relationship between planning and earth resources regulation, including improving guidance on the distinction of roles and responsibilities between the Minister for Planning and the Minister for Resources.

Aligned with these improvements, a planning practice note — expected to be completed in late 2018 — is being developed to improve guidance for local councils making decisions with respect to planning approvals for mines and quarries.

The Minister for Planning and the Minister for Resources are working together on further opportunities to provide greater confidence for industry through the joint release of a Ministerial Statement in mid-2018.


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