Chapter 1: Planning schemes

1.1 What is a planning scheme?

A planning scheme is a statutory document that sets out objectives, policies and provisions relating to the use, development, protection and conservation of land in the area to which it applies. A planning scheme regulates the use and development of land through planning provisions to achieve those objectives and policies.

_{PEA ss 4A(2), 6(1), 6(2)}
Matters that a planning scheme may provide for are described in section 6 of the Planning and Environment Act 1987 (PE Act).

_{PEA s 6(1)}
The PE Act provides that planning schemes:

• must seek to deliver the objectives of planning in Victoria within the area covered by the scheme
• may stipulate provisions that relate to the use, development, protection or conservation of any land (section 3 of the PE Act defines the meaning of these terms).

1.2 What are the Victoria Planning Provisions?

The PE Act distinguishes between the Victoria Planning Provisions (VPP) and a planning scheme. The VPP is a document containing a comprehensive set of planning provisions for Victoria. It is not a planning scheme and does not apply to any land. It is a statewide reference used as required, to construct a planning scheme. It is a statutory device to ensure that consistent provisions for various matters are maintained across Victoria and that the construction and layout of planning schemes is always the same.

In preparing and maintaining the planning scheme, a council draws from the VPP in two essential ways:

• It must include provisions that are mandatory in all planning schemes in Victoria. These include:
  • the ‘purpose and vision’
  • the statewide and regional provisions of the Planning Policy Framework (PPF)
  • the ‘particular provisions’ applying to specified categories of use and development (such as car parking and signs)
  • the ‘general provisions’
  • the ‘operational provisions’.
• It may include provisions that are relevant to or give effect to its Municipal Planning Strategy (MPS) and local provisions of the PPF. These provisions will include the relevant state standard zones and overlays to be applied in the scheme. Some of these zones and overlays include local provisions as schedules to the zone or overlay.

In the simplest terms, a planning scheme is constructed by taking the VPP as a basic template. A local planning strategy and policy framework (the MPS and parts of the PPF) are then added. The zones and overlays needed to implement these are then selected and appropriate local provisions (the schedules) are written to support the zones and overlays.

1.3 What is a zone?

All land is subject to a zone. The planning scheme zones land for particular uses, for example, residential, industrial, commercial or other. The zones are listed in the planning scheme and each zone has a purpose and set of requirements. This information describes if a planning permit is required, and the matters that the council must consider before deciding to grant a permit. A zone may also specify information that must be submitted with a planning permit application. The zone also contains information relating to land uses, subdivision of land, construction of new buildings and other changes to the land. The zone will also list any classes of building and works that can be assessed under the VicSmart shorter permit application process.

A zone sets out land use controls in a table of uses categorised into three sections:

• Section 1: Land uses that do not require a planning permit
• Section 2: Land uses that require a planning permit
• Section 3: Prohibited uses. Some uses are not allowed on land in a zone because they may conflict with other uses; for example, industry is prohibited in the General Residential Zone.

A use that is not specifically mentioned is covered by a reference to ‘any other use’. These are usually found in section 2 and sometimes in section 3.

Sometimes a use in section 1 or section 2 must meet specified conditions. If these conditions are not met, the use may require a permit or may be prohibited.

The table of uses refers specifically to the use of land and not to the development of land.

1.4 What is an overlay?

The planning scheme map may show that a piece of land has an overlay as well as a zone affecting it. Not all land has an overlay. Some land may be affected by more than one overlay. If an overlay applies, the land will have some special feature such as a heritage building, significant vegetation or flood risk. The Heritage Overlay, for example, applies to heritage places of natural or cultural significance and describes the requirements that apply.

The overlay information will indicate if a planning permit is required for the construction of a building or other change to the land and sets out requirements for subdivision, and buildings and works that apply in addition to the requirements of the zone. For example, if a Heritage Overlay applies, a planning permit is required to demolish an existing building. The Heritage Overlay requires a council to consider, before it grants the permit, whether the demolition of the building will lessen the significance of the heritage place. An overlay may specify information that must be submitted with an application for a planning permit.

In some cases, an overlay will list classes of building and works eligible for assessment under VicSmart.

1.5 What do ‘use’ and ‘development’ mean?

Use of land refers to using land for a particular purpose (such as a dwelling or a shop) and may not involve building anything.

Development includes the construction, alteration or demolition of a building or works and the subdivision or consolidation of land.

In some zones, the development of land and the proposed new use, both require a permit. For example, in the Mixed Use Zone, a permit is required to construct a building and to use a building for industry. In other zones, the use may not require a permit, but a permit may be required to construct the building (the development) for the use. In this situation, a council can only consider the effects of the new building (such as height, visual bulk and so on) and not the change in the use of the land.

Some uses and development types are exempt from requiring a permit. These exemptions are listed in clause 62 of the planning scheme.

1.6 Who and what are affected by a planning scheme?

_{PEA s 16}
Planning schemes may apply to all private and public land in Victoria. A planning scheme is binding on all members of the public and on every Victorian minister, government department, public authority and council.

The land to which a planning scheme may apply includes land covered by water (such as lakes and some coastal waters) and areas above or below ground (such as air rights and excavations).

Exemptions may be provided by a Governor in Council Order published in the Victoria Government Gazette.

Current exemptions under section 16 of the PE Act apply to a number of ministers. Exemptions also apply to specific sites and projects, such as parts of Albert Park.

Where they have been exempted from any legal need to comply with planning scheme requirements, as a matter of practice the ministers concerned should consult from an early stage with relevant planning authorities on proposed works. This consultation fosters cooperative involvement of local government in state planning and development matters. Consultation needs to be effective and therefore should be more than the mere circulation of proposals.

Under section 52(i) of the Commonwealth of Australia Constitution Act 1977 (The Constitution) and the Commonwealth Places (Application of Laws) Act 1970 (Vic) and subject to the Commonwealth Places (Application of Laws) Act 1970 (Cth), the Commonwealth has exclusive legislative power in relation to places acquired by the Commonwealth for a public purpose. Therefore, a planning scheme does not apply to a ‘Commonwealth place’. Whether a particular Commonwealth agency is considered the Commonwealth may depend on its governing legislation, funding and level of control. For example, bodies such as the Telstra Corporation, Australian Postal Corporation and Australian Broadcasting Corporation are subject to a planning scheme.

Any requirement in a planning scheme seeking to regulate the use or development of Commonwealth land is inoperative. Land disposed of by the Commonwealth can only be subject to planning controls if an amendment is prepared and approved after disposal. Commonwealth land is identified as ‘CA’ on planning scheme maps.

1.6.1 Existing uses

_{PEA s 6(3), (4)}
A planning scheme cannot prevent the continuation of a lawfully existing use under the PE Act if the existing use was established before the planning scheme came into operation.

_{Planning scheme cl 63}
Clause 63 of the planning scheme provides that an existing use right is established if any of the following apply:

• the use was lawfully carried out immediately before the approval date
• a permit for the use had been granted immediately before the approval date and the use commences before the permit expires
• a permit for the use had been granted for an alternative use, which does comply with the scheme, and the use commences before the permit expires
• proof of continuous use for 15 years is established
• the use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

This does not apply to a lawful use of land:

• that has stopped for a continuous period of two years
• that has stopped for two or more periods, which together total two years in any period of three years, or
• in the case of a seasonal use, that does not take place for two years in succession.

For existing use rights established through a use having been lawfully carried out immediately before the approval date, the relevant ‘approval date’ is:

• the date when the planning scheme commenced operation; or
• the date when an amendment to the planning scheme commenced operation which would have had the effect of restricting or prohibiting the use.

_{Planning scheme cl 63.11}
It is sometimes necessary to trace an existing use back through prior planning schemes or provisions over many years to determine its lawfulness. Planning Scheme historical records are available to support this research. After selecting the relevant planning scheme under ‘browse planning schemes’, refer to the ‘histories’ tab. However, to avoid cumbersome investigations, planning schemes deem an existing use to have been lawfully established if proof of continuous use for 15 years is established in accordance with clause 63.11 of the planning scheme.

Existing use rights apply to land, not to the owners or others with an interest in the land. It is also important to note that these rights apply only to the use of land, not development. What is allowed to continue is the use that was lawfully carried out immediately prior to the approval date of the amendment or scheme that prohibited the use. In this situation, the use is confined to the same specific use, not by the land use definitions set out in the planning scheme.

The principles of establishing the use to which existing use rights apply are based on those appearing in cases such as Shire of Perth v O’Keefe [1964] 10 LGRA 147 and City of Nunawading v Harrington [1985] VR 641.

_{PEA s (6), (4A)}
The PE Act allows planning schemes to require that existing uses comply with a code of practice which has been approved by Parliament. For example, planning schemes currently require the use of land for timber production to comply with the Code of Practice for Timber Production.

1.6.2 Who administers the planning scheme?

_{PEA ss 13, 14}
The administration and enforcement of a planning scheme is the duty of a responsible authority. In most cases this will be a council, but it can be the minister administering the PE Act or any other person whom the planning scheme specifies as a responsible authority for that purpose. For example, in the Melbourne Planning Scheme, the Minister for Planning is the responsible authority for land in a number of areas including the Melbourne Casino Area, Melbourne Docklands Area, Flemington Racecourse and the Royal Melbourne Showgrounds.

A council will usually act as both planning authority and responsible authority.

_{PEA s 201A}
If the responsible authority for particular land or particular matters changes at any time (for whatever reason), the ‘old’ responsible authority immediately loses its powers and matters of a continuing nature can be decided (without any need to start again) by the ‘new’ responsible authority. Relevant documents must be transferred to assist the ‘new’ responsible authority.

_{PEA ss 201A, 201B}
If the change is due to an alteration in administrative boundaries, a planning scheme amendment will eventually be needed to transfer the control over affected land to another planning scheme.

1.6.3 Where must a planning scheme be available for inspection?

_{PEA ss 40, 42, 197A}
The PE Act requires the Minister, the council and the responsible authority to maintain an up-to-date copy of the planning scheme, incorporating all amendments to it and all documents lodged with those amendments. (In most cases the council is also the responsible authority for the scheme.)

The planning scheme must be made available free of charge in accordance with the public availability requirements of the PE Act by either making it available for public inspection:

• in person at the office of the responsible authority at any time during office hours; or
• on its website as well as on request by any person at their offices at an agreed time during office hours.

View planning schemes online.

_{PEA s 60(1A)(g); PE Regs reg 25}
The Planning and Environment Regulations 2015 section 25 requires that before deciding on a permit application the responsible authority must make available for inspection free of charge at its offices a copy of any document that it considers under section 60(1A)(g) of the PE Act. If the responsible authority is not the council for the municipal district in which the land is located, the responsible authority must give a copy of the document to the council for the purpose of making the document available for inspection free of charge at the council’s offices.

Under section 60(1A)(g) of the PE Act, a responsible authority may consider any strategic plan, policy statement, code or guideline that has been adopted by a minister, government department, public authority or council before deciding on an application.

In any case where there is some doubt whether a document comes within the scope of this requirement, the responsible authority should make sure it is available.

See Planning Practice Note 74 – Making Planning Documents Available to the Public for more information about meeting the requirements for making documents available for inspection.

1.6.4 When must a planning scheme be reviewed?

_{PEA s 12B(1); 12B(2)}
A planning authority that is a municipal council must review its planning scheme no later than one year after each date by which it is required to approve a council plan under section 90 of the Local Government Act 2020, or within such longer period as is determined by the Minister for Planning.

_{PEA s 12B(3)}
The objective of the review is to enhance the effectiveness and efficiency of the planning scheme in achieving the objectives of:

• planning in Victoria, and
• the planning framework established by the PE Act.

1.6.5 What must the review evaluate?

_{PEA s 12B(4)}
The review must evaluate the planning scheme to ensure that it:

• is consistent in form and content with the directions or guidelines issued by the Minister under section 7 of the PE Act (see Chapter 1.7 below)
• sets out effectively the policy objectives for use and development of land
• makes effective use of state provisions and local provisions to give effect to state and local policy objectives.

_{PEA s 12B(5)}
When the review is completed, the planning authority must report its findings to the Minister without delay.

1.7 What is the Ministerial Direction – The Form and Content of Planning Schemes

_{PEA s 7(5); 7(6)}
The form and content of all planning schemes prepared under Part 3 of the Planning and Environment (Planning Schemes) Act 1996 and any amendment to a planning scheme must comply with the Ministerial Direction – The Form and Content of Planning Schemes.

The Ministerial Direction – The Form and Content of Planning Schemes requires that a planning scheme must include the following parts of the VPP in the same order:

• Purpose and vision – clause 00
• PPF – clauses 10–19, inclusive
• Zones – clauses 30–37, as relevant to the planning scheme
• Overlays – clauses 40–45, as relevant to the planning scheme
• Particular provisions – clauses 50–59, inclusive
• General provisions – clauses 60–67, inclusive
• Operational provisions – clauses 70–74, inclusive

The Ministerial Direction – The Form and Content of Planning Schemes states that a planning scheme must not include any zone or overlay clause other than a zone or overlay clause selected from the VPP.

1.8 What are the components of a planning scheme?

The strategic foundation of each scheme is made up of two components: the MPS which contains only local policy content and the PPF which includes state, regional and local policy content. The application of zones, overlays and local provisions must have a readily discernible basis in the policy framework.

1.8.1 Planning Policy Framework

The PPF at clauses 10–19 is the planning policy content of a planning scheme. It contains statewide and regional planning policies and may contain local planning policies, which articulate the land use and development outcomes sought by the planning scheme. These are implemented through the zone, overlay and particular provisions.

Statewide, regional and local planning policies are grouped by theme, with applicable regional and local policies located under the corresponding statewide policy. To help identify the reach of each policy, their clause numbers include a character identifier:

• Statewide planning policies include the letter ‘S’.
• Regional planning policies include the letter ‘R’.
• Local planning policies include the letter ‘L’.

For example, a statewide policy for the protection of biodiversity will be labelled ‘12.01-1S’, while the regional and local equivalents will be named ‘12.01-1R’ and ‘12.01-1L’ respectively.

There are two types of regional planning policies:

• Regional – state geographic: Policies that apply to 1 of the 9 regional groupings of planning schemes as set out in the Ministerial Direction – The Form and Content of Planning Schemes.
• Regional – spatial and thematic: Policies that apply to two or more of the regional groupings and/or one or more planning schemes in different regions.

Both types of regional policy form part of the VPP.

_{PEA ss 7(1), 7(4)}
Statewide and regional planning policies are both state standard provisions that form part of the VPP. Local planning policies and the MPS are local provisions.

If there appears to be an inconsistency between a local provision and a state standard provision, the state standard provision prevails.

1.8.2 Municipal Planning Strategy

The MPS at clause 2 of the planning scheme operates in conjunction with the PPF to provide the local policy context and direction for a planning scheme. It outlines the strategic direction for the municipality that has informed the preparation of the planning scheme.

The MPS is a succinct expression of the overarching strategic policy directions of the municipality, providing:

• the foundation for local policy based on a municipality’s location, regional context, history, assets and strengths, key attributes and influences
• an understanding of the matters that are important to the municipality from a planning perspective
• the context for the local planning policies in the PPF
• an outline of what planning outcomes the municipality seeks to achieve, which are then implemented through controls and policy within the planning scheme.

The MPS changes over time in response to the changing needs of the municipality.

1.8.3 Zones

Standard zones for statewide application are included in the VPP. These zones are used in all planning schemes, as required. An important feature of the zones, which is reflected in the first purpose of each zone, is that they are to be administered to implement the MPS and PPF.

Each planning scheme includes only those zones required to implement its strategy. There is no ability to vary the zones or to introduce local zones. Additional zones can only be introduced by an amendment to the VPP. Some zones have schedules that provide for local circumstances, such as the Mixed Use Zone, the Rural Living Zone and the Public Conservation and Resource Zone. Refer to Chapter 5.1 of the Practitioner’s Guide to Victoria’s Planning Schemes for a short summary of each zone.

1.8.4 Overlays

In addition to the requirements of the zone, further planning provisions may apply to a site or area through the application of an overlay. Both are equally important. As with the zones, standard overlays for statewide application are included in the VPP. Each planning scheme includes only those overlays required to implement the strategy for that municipality.

Generally, overlays apply to a single issue or related set of issues (such as heritage, an environmental concern or flooding). Where more than one issue applies to land, multiple overlays can be used. Overlays must have a strategic justification. Many overlays have schedules to specify local objectives and requirements. Most overlays make requirements about development rather than land use. Overlays do not change the intent of the zone. Refer to Chapter 5.2 of the Practitioner’s Guide to Victoria’s Planning Schemes for a short summary of each overlay.

1.8.5 Particular provisions

Particular provisions are specific prerequisites or planning provisions for a range of particular uses and developments, such as signs and car parking. They apply consistently across the state and there is no ability to include in planning schemes particular provisions that are not in the VPP. Unless specified otherwise, the particular provisions apply in addition to the requirements of a zone or overlay. Some particular provisions have schedules for local requirements.

The particular provisions also include application requirements and decision guidelines for VicSmart applications in clause 59.

1.8.6 General provisions

General provisions are requirements that are consistent across the state. The general provisions address overarching matters such as general exemptions, existing use rights and referral obligations. Some general provisions provide for schedules to specify local requirements.

1.8.7 Schedules

Schedules are used to identify the needs, circumstances and requirements of individual municipalities in specific circumstances. Together with the MPS and PPF, schedules are the means of including local content in planning schemes. They can be used to supplement or ‘fine-tune’ the basic provisions of a state-standard clause, zone or overlay in a planning scheme, adapting it to local circumstances and locally defined objectives. This means that schedules are a key tool for implementing the strategic directions of the MPS and PPF policies.

Schedules can only be included in a planning scheme where allowed by the VPP. They must use the format shown in the Ministerial Direction – The Form and Content of Planning Schemes.

For more information on schedules, refer to Chapter 6.5 of the Practitioner's Guide to Victoria’s Planning Schemes.

1.8.8 Operational provisions

The operational provisions specify:

• How provisions of the planning scheme operate (for example, the MPS, PPF, zones, overlays, particular provisions and VicSmart).
• The administration and enforcement details of a planning scheme, including:
  • who the responsible authority is
  • what area a planning scheme applies to
  • incorporated documents
  • background documents.
• The meaning of terms used in a planning scheme.
• The strategic implementation details of a planning scheme, including:
  • the nature of zones, overlays and other provisions used in the planning scheme
  • further strategic work proposed for the planning scheme.

Incorporated and background documents

A planning scheme may incorporate a document that relates to the use, development or protection of land. Incorporated documents may inform the planning scheme, guide decision making or affect the operation of the scheme.

An incorporated document is included in the list at clause 72.04 of the planning scheme. The document then forms part of and carries the same weight as other parts of the scheme and can only be changed by a planning scheme amendment.

At the local level, planning authorities may wish to incorporate their own documents using the schedule to clause 72.04. Development guidelines, incorporated plans or restructure plans are common types of incorporated documents.

If an external document is mentioned in a planning scheme, but has not been formally incorporated, it is only regarded as a background document and carries less weight than if it forms part of the planning scheme.

For further information on incorporated and background documents, refer to Chapter 6.6 of the Practitioner's Guide to Victoria’s Planning Schemes.

Meaning of terms

A set of definitions is included in the VPP and applies in all planning schemes. Defined terms are separated into general terms, sign terms and land use terms.

A term used in this planning scheme has its ordinary meaning unless that term is defined in the planning scheme, PE Act or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in the scheme.

Page last updated: 27/03/24