4. Rules for writing a planning scheme provision

4.1 The planning scheme rules

This chapter sets out the rules that should be applied to the preparation of all new VPP and planning scheme provisions. These rules should be applied to all new provisions, both policy and controls.

The rules are structured in three parts.

Entry Rules

1. A provision must be within the scope of the objectives and power of the Act.

2. A provision must implement the objectives of planning and be supported by a sound strategic planning and policy basis.

3. A provision must not conflict with or duplicate other legislation, instruments or planning scheme provisions.

Application Rules

4. The application of a provision must be necessary and proportional to the intended planning outcome.

5. A provision must be consistent with the operational provisions of the scheme, any parent provision and any relevant Ministerial Direction.

6. The application of a provision must be clear.

Drafting Rules

7. The requirements of a provision must be clear and unambiguous.

8. A provision must be structured to be clear and unambiguous.

9. A provision must be written to be clear and unambiguous.

The VPP principles set out in Chapter 2.3 describe a set of ideals for a modern planning scheme against which the benefits and implications of any proposed change should be measured. The rules seek to ensure that the VPP and planning scheme provisions are prepared in a manner that is consistent with their statutory framework and the VPP principles.

The entry rules seek to ensure the intended outcome sought by the provision is within the power of the Act and has a sound basis in strategic planning and policy. Part 2 of the Act provides the legislative framework for the preparation of planning schemes, which must be within the scope of its objectives and powers it confers on a planning authority. Local provisions in planning schemes must also be within the scope of the objectives and power provided by the relevant parent provision.

Ministerial Direction No. 11 - Strategic Assessment of Amendments requires a planning authority to consider how an amendment will implement the objectives of planning in Victoria and make proper use of the VPP. An evidence-based planning policy development process and an evaluation of strategic considerations should precede any decision to change the planning scheme and the drafting of provisions. Planning Practice Note 46 - Strategic Assessment Guidelines provides the framework for preparing and evaluating a proposed planning scheme amendment and its outcomes.

The application rules seek to ensure that an amendment to a planning scheme is necessary and proportional to the intended outcomes and applies the VPP in a proper manner.

Achieving greater consistency in the application and performance of planning scheme provisions is particularly important in aligning the VPP and planning schemes with the VPP principle of ‘digital ready’. To successfully transition planning schemes from paper-based to data base driven information, it is essential the provisions are drafted to reinforce user expectations about their operation and effect.

The drafting rules seek to ensure that a provision is drafted clearly and unambiguously and will be effective in achieving the intended outcome. For a planning scheme to be effective, both legally and in meeting policy objectives, the intent and operation of all provisions must be clear. It is also important that anyone affected by a planning scheme can easily understand a provision and the obligations it imposes.

4.2 Entry rules

The intended outcome must be within the scope of the objectives and power of the Act and have a sound basis in strategic planning and policy.

Rule 1: A provision must be within the scope of the objectives and power of the Act

A provision must:

• Be consistent with the Act and the VPP.
• Be relevant to the exercise of a discretion in the planning scheme.
• Relate to a land use or development matter.
• Be capable of being applied to a parcel of land.

The Act sets out the objectives of planning and the planning framework that define the scope of outcomes a planning scheme can seek to achieve. Part 2 of the Act sets out requirements for planning schemes, including matters that a planning scheme may or may not regulate, such as ensuring that the function of a provision is authorised by the matters set out in section 6 of the Act - What can a planning scheme provide for?

To ensure that provisions are legally effective and land use focused, take care to check that the subject matter of a provision is within the scope of the objectives and power conferred on a planning scheme by the Act.

Rule 2: A provision must implement the objectives of planning and be supported by a sound strategic planning and policy basis

A provision must:

• Clearly set out its purpose and the intended planning outcome.
• Seek to implement the objectives of planning.
• Show an evidence based justification for the planning intervention.
• Be consistent with the MPS and PPF.
• Be relevant to an exercise of a discretion in the planning scheme.

Both Ministerial Direction No. 11 - Strategic Assessment of Amendments and PPN 46 -Strategic Assessment Guidelines seek to ensure a comprehensive strategic evaluation of a planning scheme amendment and the outcomes it produces. The strategic considerations set out in these documents require an examination of the outcomes that a provision seeks to achieve, including whether it implements the objectives of planning and implements state and local planning policy.

These considerations highlight the importance of clearly identifying at the start of the amendment process the intended planning outcomes and confirming that they can be properly achieved within the planning framework.

Rule 3: A provision must not conflict with or duplicate other legislation, instruments or planning scheme provisions

A provision must:

• Not conflict with or duplicate any other relevant legislation or planning scheme provision.

A principle of the VPP is that they are ‘land use and development focused’. Planning provisions must avoid conflict and duplication with other related regulatory regimes, in particular where better technical expertise and resources reside elsewhere. Focusing provisions on land use and development issues not only provides for legally certain provisions that are within power, but also serves to better use the finite resources of the planning system.

The planning system performs an important role in integrating a range of policy considerations through land use and development regulation. It also plays a role in the coordination of permit approvals with related approvals and instruments issued under other statutory regimes. The subject matter and sequencing of permits and related approvals can sometimes overlap.

Provisions should be drafted so that they maintain the focus of the planning scheme on matters that need to be ‘planned for’ or ‘designed in’ to a land use or development proposal, so that any impacts can be properly mitigated into the future. Where another statutory regime regulates the same activity, or imposes specific requirements, it is not appropriate for a planning scheme to impose different requirements or to seek to enforce the requirements of the other regime through the planning system.

In some circumstances, it may be necessary to regulate an aspect or a particular class of development for different purposes under separate controls (such as buildings and works under both a zone and a Land Subject to Inundation Overlay). These requirements will each seek to achieve different objectives (such as neighbourhood character and flood risk mitigation). In some cases, these objectives may have the potential to conflict and the decision will need to be balanced by the responsible authority to achieve an overall outcome that is acceptable.

However, in many instances it will result in a similar planning outcome being achieved. For example, where a zone regulates or prohibits an aspect of development such as building height for neighbourhood character purposes, it may be unnecessary to impose an additional layer of control on building height through an overlay.

A provision should not repeat or contradict another provision within the planning scheme. However, some policies may have objectives that are in tension and deciding between them is a normal function of the planning system. Repetitive or contradictory policy for the same theme or area will confuse and weaken the ability to achieve an appropriate outcome.

4.3 Application rules

A provision must be necessary and proportional to the intended outcome and apply the VPP in a proper manner.

Rule 4: The application of a provision must be necessary and proportional to the intended planning outcome

A provision must:

• Be necessary to achieve the intended planning outcomes, having regard to other possible means of implementation, including non-statutory initiatives.
• Impose a level of regulatory burden that is the minimum, necessary to satisfactorily address the planning and environmental risks.
• Where appropriate, implement a streamlined pathway of assessment.

The VPP principle of being ‘proportional’ means that a provision should be designed to only impose a level of regulatory burden that is proportional to the planning and environmental risk.

Where a change to the planning scheme is necessary, the VPP and its elements provide opportunities for planning authorities to apply alternative assessment pathways for simpler, lower risk proposals where a normal permit application process is not warranted. These alternative pathways can be more effective in achieving the intended planning outcomes and can reduce the administrative and economic burden on both responsible authorities and the community.

Rule 5: A provision must be consistent with the operational provisions of the scheme, any parent provision and any relevant Ministerial Direction

A provision must:

• Be expressed in a manner that is consistent with the operational rules at clause 71.
• Be prepared in accordance with the Ministerial Direction -The Form and Content of Planning Schemes and any other relevant Ministerial Direction.
• Not include a matter outside the purpose or scope of a state standard provision.
• Only include a function that is enabled by the relevant state standard provision.

Clause 71 sets out operational requirements that apply to different provisions. These requirements are important in defining the effect of a provision and its relationship with other provisions in the planning scheme.

A provision should not be drafted in a manner that is contrary to its operational limits or in conflict with other provisions, such as a policy that seeks to prohibit a class of land use or development that is discretionary in a zone. This causes confusion about the intended effect of a provision.

Local provisions derive their power and scope from parent state standard provisions. A state provision may limit the functions a local provision can perform. To maintain the benefits of statewide consistency and ensure that local provisions are legally effective, they must be drafted so that their scope and functions do not exceed those of their parent provision.

For example, a schedule to an overlay should not include a requirement to give notice to third parties where the parent provision excludes third party notice and review. A provision that exceeds its lawful scope creates uncertainty for the decision-maker and stakeholders in planning processes and will result in unnecessary cost and delay.

Rule 6: The application of a provision must be clear

A provision must:

• Clearly identify the scope of its application to an area or specified classes of use or development.
• Define its application by reference to land use or development terms defined in the Act or the VPP.
• Where a provision is applied to an area, clearly define the area.

Planning schemes contain a range of provisions that apply to a broad range of activities and land. In most cases, only a few provisions will be relevant to a given piece of land or a class of land use or development. It is important that provisions allow users to quickly identify the obligations and requirements that affect them, without having to interrogate many provisions that are not relevant to their proposal.

A provision should therefore clearly identify the scope of its application to an area or activity.

Where a provision applies to a particular class of use or development, care should be taken to ensure its application is expressed using land use or development terms that are defined or have a clear meaning.

Where a provision is applied to an area that has not already been mapped in the planning scheme (such as by an overlay) a map should be used to define the area. A written description of the area should not be used.

4.4 Drafting rules

A provision must be clear, unambiguous and effective in achieving the intended outcome.

Rule 7: The requirements of a provision must be clear and unambiguous

A provision must:

• Not set or define the scope of a requirement by reference to terms that are undefined or that are capable of more than one meaning.
• When relying on a list of conditions to trigger or exempt a requirement in a control, clearly identify the intended meaning of each condition.
• Not make a permit requirement contingent on the opinion or satisfaction of a decision-maker or other body (including the responsible authority).
• Avoid expressions where a requirement is contingent upon the existence of a set of facts or circumstances that are not objective or readily ascertainable (such as by requiring expert opinion or an external document).

The planning scheme specifies when a permit or other approval needs to be obtained before an activity on land can commence. Failing to understand and comply with these obligations can have serious consequences for a landowner or proponent. It is important that a provision clearly and objectively sets out the scope of its application so that a user is in no doubt about the extent of their obligation to obtain a permit or to meet a requirement.

Planning schemes also include requirements that impose limitations on how land may be used or developed and on how a discretion may be exercised. Applying these requirements to a particular piece of land can impose a significant burden on an owner or land user. Where the scope of a requirement is unclear, unnecessary disputes can result, causing delay and cost to all system users.

Similarly, the ability of a provision to set procedural requirements (such as referral) relies on identifying the subject classes of application in clear and unambiguous terms.

Procedural requirements ensure that important issues are considered by decision-makers and can affect the rights of third parties. There can be serious consequences for the validity of decisions and permits if procedural requirements are not complied with.

Rule 8: A provision must be structured to be clear and unambiguous

A provision must:

• Set requirements in a logical and consistent manner.
• Be self-contained when setting requirements and not rely upon documents, standards or conditions that are not contained in the planning scheme.

The clarity of a provision is affected by how it is organised. In particular, by the way information and requirements are structured, such as through the use of headings, tables and the sequencing of lists.

The usability of provisions is enhanced if provisions are presented in a clear and consistent manner across all planning schemes.

The form and content of provisions are largely determined by the Ministerial Direction - The Form and Content of Planning Schemes. The detailed requirements and templates in this direction seek to achieve a number of the VPP principles, with an overarching objective of strengthening the clarity of planning schemes.

Where there is discretion to determine structure and presentation, provisions should be logically organised so that a user can easily understand the requirements that affect their land.

Rule 9: A provision must be written to be clear and unambiguous

A provision must:

• Be written in language that is clear and unambiguous.
• Be written so that there is no inconsistency between provisions or the scope or effect of a requirement.
• Be expressed in language that gives effect to its purpose.
• Use terms and language that are consistent with the Act, the VPP and the relevant parent provision.
• Clearly specify the operation of items in a list (See Chapter 6.1.5 - writing a list):
  • In policy – list items are cumulative unless otherwise specified.
  • In a control – identify if list items are alternative or cumulative in their effect or application.
• Be drafted in accordance with the plain English drafting advice at Chapter 6.1.
• Avoid using terms that need definition in a local provision for their operation to be clear.
• Not modify the meaning of a term that is defined in the Act or the VPP.
• Include maps and diagrams that are consistent with the advice at Chapter 6.2.

For a planning scheme provision to be legally effective it must be sufficiently clear in its meaning and intended effect. Use plain English and clear sentence structure when drafting provisions to achieve clarity and avoid ambiguity.

Page last updated: 17/04/24