This Act allows the Victorian Premier to recommend projects that are of economic, social or environmental significance to the Governor in Council that a project be declared a “major transport project”.

The Act establishes a streamlined environmental approvals process for some projects. This process streamlines assessments, approvals, licences and permits which are normally required under the Environment Protection Act 1970 (Vic), Planning and Environment Act 1987 (Vic), Heritage Act 1995 (Vic), Flora and Fauna Guarantee Act 1998 (Vic), National Parks Act 1975 (Vic), Road Management Act 2004 (Vic), Forests Act 1958 (Vic), Wildlife Act 1975 (Vic) and the Water Act 1989 (Vic).

Part 6 of the Act provides additional powers to the designated “project authority” to assist “project delivery”. This includes powers such as the power to acquire and occupy land for the purpose of the project.

A more detailed summary of the major provisions of this Act can be found below. You can also read a summary of the EDO's issues and concerns with the Major Transport Projects Facilitation Act.

While all care has been taken in preparing this summary, it is not a substitute for legal advice in individual cases. For any specific questions, seek legal advice.

• Governor in Council may declare a transport project to be a declared project to which the Act applies on the recommendation of the Premier. The declaration must be published in the Government Gazette and the Premier must consult the Planning Minister prior to making a recommendation. (ss 10 & 11)
• The Premier must also not make the recommendation under s 10 unless he has assessed the transport project as a project that is of economic, social or environmental significance to the State or a region of the State. In making his assessment the Premier must have regard to the project declaration guidelines. (s 12)
• The Premier must prepare project declaration guidelines for assessment of whether transport projects are of economic, social or environmental significance. These guidelines must be published in the Government Gazette. (s 13) The Act dos not outline what factors need to be included in the project declaration guidelines. There is no requirement to consult in the development of these guidelines.
• The Premier is to appoint a Minister as the Project Minister for the declared project (this can be any Minister) and the Project Minister must appoint a public authority as a project proponent (this can be any public authority). (ss 14 & 15)

• The Planning Minister must prepare project proposal guidelines which set out the form and content of a project proposal. It appears that guidelines will be prepared for each project that are specific to that project. They are to be published on the DPCD website as soon as practicable after they are prepared as well as in the Government Gazette. (s 16) The Act provides no guidance on what is to be contained in the project proposal guidelines (although s 5 sets out what must be contained in a project proposal itself which will have a bearing on what is contained in the guidelines).
• The Planning Minister may also prepare impact assessment guidelines for the assessment of impacts, & the form and content of an impact statement or management plan for a declared project (s 17).
• The project proponent must prepare a project proposal in accordance with the project proposal guidelines which is to be given to the Planning Minister. (s 19) The section states that a proponent can include any matter it thinks relevant in the project proposal, however s 5 sets out the list of matters that must be in a project proposal.
• The Planning Minister must then make a determination as to the appropriate impact assessment – either a comprehensive impact statement assessment process or impact management plan assessment process. (s 20)
• The Minister may allow a declared project to use the impact management plan assessment process only if:

a) The land is owned by a public authority or reserved for a public purpose; and
b) The development does not require, or has been granted any of the following:
    i. applicable approval that is a works approval;
    ii. applicable approval under the Heritage Act;
    iii. planning permit under the EP Act;
    iv. amendment to an applicable planning scheme under EP Act.

• The Minister must make his decisions within 10 business days after receiving the project proposal. The determination must be published in the Government Gazette.

If an impact management plan assessment (IMP) is required:

• The Planning Minister must prepare ‘scoping directions’ that specify the kinds of impacts and other matters that must be considered and addressed in an impact management plan for the declared project. They must be given to the proponent and published in Govt Gazette. (s 22) NOTE the Act provides no guidance as to what should be included in the scoping directions.
• The Minister may direct the project proponent to consult with any person in the preparation of the impact management plan. (s 25)
• The project proponent must prepare a impact management plan for the project that:

a) complies with the scoping directions for that plan;
b) contains an assessment of the impacts of the declared project;
c) sets out the options for the development of the declared project that have been considered, and the impacts for those options;
d) sets out the methods considered to avoid, minimise, manage or offset the impacts referred to in paragraph (b) or ©;
e) includes a description of the preferred option for the development of the declared project and the reasons for that preference;
f) sets out how any State environment protection policy or any waste management policy that applies in relation to the development and use of the declared project will be observed;
g) identifies all of the applicable approvals that will be required under all applicable laws in order for the declared project to be developed, including any requirements under those laws applying to the declared project when assessing the impacts of the declared project;
h) includes the information that would be required for the applicable law decisions to be made under all of the applicable laws that apply to the project including—

• a list of the mandatory applicable law criteria and discretionary applicable law criteria; and
• information as to how the proponent considers the criteria referred to in subparagraph (i) apply (s27).
  

• The project proponent must only have regard to any impact assessment guidelines when preparing the IMP. (s28) Once the impact management plan is completed, it must be given to the Minister. (s29)

If a comprehensive impact statement assessment (CIS) is required:

• The Planning Minister must prepare ‘scoping directions’ that set out the kinds of impacts and other matters that must be addressed in a CIS for the declared project. They must be given to the proponent and published in Govt Gazette. (s 30) NOTE the Act provides no guidance as to what should be included in the scoping directions.
• Within 15 days of making a CIS determination, the Planning Minister may release draft scoping directions for public comment for 15 business days (s 31). However, the Minister must not invite public comment unless the Minister considers that there are exceptional circumstances that make it necessary to seek those comments and submissions, or the project is exempt from requiring approval under the EPBC Act because of a bilateral agreement.
• When preparing the scoping directions, the Planning Minister must consider every comment or submission the Minister receives in response to an invitation under subsection (1)(b) within the period of time stated in that subsection.
• The Planning Minister must set up an assessment committee to assess CIS assessments (note that this is not required for IMPs) and give them terms of reference for the assessment (s35). Note that the terms of reference are very important in setting out what the committee can do an in particular what they can recommend (s 73)
• The proponent must prepare a CIS that includes all the things listed above for an IMP, plus identification of any planning scheme amendments that will be necessary (s 39)
• The proponent must only have regard to the impact assessment guidelines when preparing the CIS (s 40). The proponent must then submit the CIS to the planning Minister for review (s 41).

• The project proponent must publicly exhibit the CIS for between 20 to 30 business days (as determined by the Minister). (s 45) The proponent must give notice of the exhibition in newspapers, on their website, to affected landholders etc (s 47) and invite public comment during the exhibition period.
• The proponent must put the CIS on their website and provide broad access to the CIS to the public.
• Planning Minister must notify all other relevant decision-makers of the public exhibition of the statement and invite their comment under section 65 or require their advice to an assessment committee under section 245(2) (s 50).
• Any person may make a submission to the assessment committee. The submission must (among other things) be in writing, state the grounds of the submission, be relevant to the declared project and be within the scope of the terms of reference of the assessment committee. (s 52)
• The assessment committee must consider every properly made submission and may consider late or improperly made submissions (s 54). It must provide the project proponent with a copy of every public submission (s 55). The assessment committee may meet with any person who has made a submission to clarify matter in the submissions (s 56).

• The assessment committee must conduct a preliminary hearing to allow people who have made submissions to clarify any issues that they have raised in their submissions about the declared project; or to raise any procedural or preliminary matters in relation to the formal public hearing that will be conducted. The committee can decide which people can attend.
• The preliminary hearing must be conducted within 20 business days after the end of the public exhibition period (s 57). At the end of the hearing, the assessment committee must provide the project proponent with a comprehensive impact statement issues report (s 59).

• The project proponent must revise the CIS so that the statement addresses the issues set out in the assessment committee’s report (s 61). The proponent must publish a notice advising that the CIS has been revised and notify submitters and other relevant people. Submissions are able to be made to the assessment committee by persons who may be adversely affected by the revised statement within 10 days (s 63). The legislation is drafted in such a way that it is assumed there will always be a need for revision of the CIS.

• The assessment committee must conduct a formal public hearing for the comprehensive impact statement within 20 days of it being revised (s 66 & 68)
• The assessment committee must publish a notice in the newspaper advising the time and place when the formal public hearing for the comprehensive impact statement will be conducted. The assessment committee must also advise the secretary and any land owners notified under s 47.
• The process and requirements for formal hearings are set out in the Act (Part 8 Div 2)

Supplementary assessment

• If the assessment committee comes across a prudent and feasible option during the course of the formal hearing or in the properly made submissions, it may recommend that the Planning Minister direct the project proponent to undertake a supplementary assessment (s 69)

• The assessment committee must provide a written report to the Planning Minister providing the Minister with a recommendation on whether the Minister should:

1. grants all or some of the applicable approvals that are necessary for the declared project or a part of the declared project to be developed (with or without conditions); or
2. refuses to grant all of the applicable approvals that are necessary for the declared 25 project or a part of the declared project to be developed (s 73)

• The committees report must be consistent with its terms of reference (s 73)
• The committee and Planning Minister do not have to release the recommendation until the Planning Minister publishes his approval decision (s83)

• If a work approval is required under the Environment Protection Act 1970 in order for the declared project or a part of the declared project to be developed then the EPA is entitled to provide the Minister with its input (s 74)

• On receiving an IMP or assessment committee recommendation for a CIS, the Planning Minister must make a decision (an approval decision) whether to grant all or some of the applicable approvals that are necessary, or refuse to grant all of the applicable approvals that are necessary (s 77)
• In making an approval decision, the Planning Minister must have regard to the assessment committee recommendation and the advice of the EPA under section 74 (if any) and the discretionary and mandatory applicable law criteria. Note the provision specifically allows the Minister to override any mandatory applicable law criteria. (s77)
• The Planning Minister may amend a planning scheme even if VCAT proceedings are on foot where a registered Aboriginal party has refused to approve a cultural heritage management plan under the Aboriginal Heritage Act (s78)
• The Minister must consult with every applicable law decision maker before making a decision on an IMP (s79)
• An approval decision must specify the applicable approvals granted or not granted plus any conditions and set out the reasons of the Planning Minister (s80)
• The Minister must make his decision within 40 days of receiving the impact assessment statement or assessment committee’s report (but not before receiving the EPA advice) (s81)
• The effect of the Minister’s decision is that the many different approvals from different bodies that would have been required for the project would be granted by the Minister without the project proponent being required to apply for each of those approvals separately (s84 & 85)
• The approved decisions may be varied by relevant decision makers in limited circumstances, usually only with the approval of the planning minister (s84)

• The Planning Minister must designate the ‘project area’ for a declared project (s95). Designating a project area gives project authorities powers in that project area that it would not otherwise have such as compulsory acquisition, the establishment of ‘restricted access areas’
• The designated project area may be varied.
• The Planning Minister may also amend the planning scheme

• The project authority is able to gain an interest in land in the project area either through agreement or compulsory acquisition (s112)
• The Project Minister may authorise the compulsory acquisition of native title rights. (s127)
• The Governor in Council (on the recommendation of the Project Minister) may require a public authority or Council to surrender or divest land to the project authority.

Management of land

• The project authority may authorise or carry out works on public land in the project area.
• The project authority may enter into licenses or leases in relation to land in the project area.

• The Planning Minister may establish 1 or more assessment committees to assess CISs or make recommendations to the Minister about CISs (s235)
• The functions of an assessment committee are:

1. to consider any matters that are referred to it by the Planning Minister relating to a declared project, in accordance with the terms of reference; and
2. if required by the Planning Minister under Part 3, to undertake consultation on those matters; and
3. to conduct preliminary hearings or formal public hearings; and
4. to report and make recommendations to the Planning Minister in relation to:
   • whether or not to grant any applicable approval that is required for a declared project to be developed; and
   • the conditions (if any) of such approval.

• In carrying out its functions an assessment committee may inquire into and inform itself in relation to the matter in any manner it sees fit.
• In hearing submissions, an assessment committee:

1. must act according to equity and good conscience without regard to technicalities or legal forms; and
2. is bound by the rules of natural justice; and
3. is not required to conduct a hearing under Part 3 in a formal manner; and
4. is not bound by the rules or practice as to evidence but may inform itself on any matter:
   • in any way it thinks fit; and
   • without notice to any person who has made a submission. *

An assessment committee may require:

1. a person to produce any documents relating to any matter being considered by the assessment committee under this Act which it reasonably requires;
2. an applicable law decision maker to provide the assessment committee with advice on a matter or issue the committee considers relevant for the purpose of making an 5 assessment committee recommendation.

• An assessment committee may prohibit or regulate cross-examination in any hearing under Part 3 in accordance with any direction given by the Planning Minister.
• An assessment committee may hear evidence and submissions from any person who has made a submission in relation to the relevant comprehensive impact statement under Part 3.
• Submissions and evidence may be given to the committee orally or in writing or partly orally and partly in writing.

• The Act specifically excludes all judicial review and merits review for all decisions in Parts 1-4 except the Minister’s s77 approval decision. No decision can be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal, including any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or injunction on any ground, including an absence of jurisdiction, excess of jurisdiction or any other ground of review (s263)
• Judicial review of s77 approval decisions must be commenced within 21 days.
• There is no review of the Minister’s failure to make a decision under s77.
• There is no judicial review or merits review of the parts of the Minister’s s77 approval decision that are actually decisions under other laws.

For more information you may like to read the presentation by EDO Law Reform and Policy Director Nicola Rivers and EDO Solicitor Leilani Kuhn on 29 September 2009; EDO seminar (pdf)

• View the whole Act online via Victorian Legislation and Parliamentary Documents (pdf)

• Allens Arthur Robinson - "Focus: Victorian transport projects facilitation legislation 23 September 2009"