The Barwon Heads Bridge project involves the proposed re-building of the heritage listed wooden bridge at Barwon Heads. There were a variety of approvals required for this project under a number of different pieces of legislation. An amendment to the City of Greater Geelong Planning Scheme under the Planning and Environment Act 1987 was also required for the development to proceed.

An advisory committee was appointed to advise the Minister for Planning in relation to the project, and they provided their recommendations in January 2007, which were primarily for a single bridge solution. Early in 2009, the Minister subsequently exempted himself from the notice and consultation requirements under s20(4) of the Act and amended the City of Greater Geelong Planning Scheme to facilitate a double bridge development (a reproduction heritage bridge with a separate cycling and pedestrian bridge running along-side, down stream).

This action and the overall issues of how to restore or re-built the Barwon Heads Bridge has been very contentious in the Barwon Heads and Ocean Grove community. - further details in this report in the Age.

Section 38 of the Act requires all planning scheme amendments to be put before Parliament, and for either House to pass a motion which disallows the amendment within 10 sitting days. This occurred in the case of the Barwon Heads Bridge project, with amendment C118 being revoked in the Upper House. The Minister for Planning immediately directed the Governor-in-Council to publish an Order exempting the project from the operation of the Act, pursuant to Section 16 of the Act.

Section 16 of the Act reads:

A planning scheme is binding on every Minister, government department, public authority and municipal council except to the extent that the Governor in Council, on the recommendation of the Minister, directs by Order published in the Government Gazette

It is unclear from parliamentary records why this section was incorporated in to the Act in the first instance and how it was intended to be used. On explanation is that it was intended to allow the activities of certain departments to be exempt from planning schemes on the basis that their activities were better regulated elsewhere.

The Minister for the former Conservation, Forests and Lands Department explained the exemption in the following way:

The basis for the exemption was that my department is clearly bound by other Acts of Parliament such as those on national parks, reference areas, forests and wildlife, to manage land in certain ways. It is not always appropriate - in many cases it is certainly not appropriate - to have that particular Act of Parliament breached in any way by another planning process … In all other areas, I am able to submit to exactly the same planning requirements as required of anyone else. In most cases the department will have no trouble doing that

Victorian Parliamentary Debates, Legislative Council, 20 April 1988, p743

Exemptions were gazetted for certain Ministers in 1989 and have been in place ever since. In recent times, section 16 has been used to create exemptions for specific projects. One example is the North South Pipeline Project. Rather than simply amending planning schemes along the route to facilitate construction of the pipleline, section 16 was used to exempt the pipeline route from the Planning Scheme in its entirety.

The Barwon Heads bridge(s) exemption is an example of a similar ad hoc or project specific use of section 16. The difference in this case is that as described above the Minister (or more accurately the Governor in Council) exercised this power in response to Parliamentary disallowance of a planning scheme amendment. The chain of events highlights the tension that exists between on the one hand Parliamentary oversight of the Planning Scheme amendment process and on the other the broad ranging executive powers given to the government of the day under section 16.

The situation is further complicated by the undoubtedly political nature of the disallowance of the planning scheme amendment by the Legislative Council in this case. The fact that a disallowance motion was passed is exceptional. Apart from the disallowance of native vegetation clearing controls by the Legislative Council when these controls were first introduced in the early 90s, the both major parties have been reluctant to use these disallowance powers. For reasons no doubt partly explained by political expediency and perhaps also by genuine concerns about the process leading up to the planning scheme amendment to facillitate the contruction of the dual bridges at Barwon Heads, the Liberal and National Party supported a Greens motion for disallowance.

Even if Section 16 intended to allow the Executive to totally subvert the planning process and in particular to effectively override the power of Parliament to disallow planning scheme amendments? Even if this was the original intent, is it good law and policy to allow such far reaching discretion on the part of the government of the day to suspend or remove the operation of the Act?

Like call in and other powers under the Act, there is a strong argument for strictly confining the ability of the Minister for Planning and the government of the day to undermine the consistent application of the Act by creating exemptions under section 16. Indeed it is questionable whether such a power to make exemptions is even necessary - there is plenty of scope to make site or project specific amendments to Planning Schemes without having to resort to such powers. The critical difference between Planning Scheme amendments and section 16 is the lack of Parliamentary oversight of the use of section 16.

The Planning and Environment Act 1987 is currently under review (see Modernising Victoria's Planning Act. In our submission to the review, EDO Victoria has called for limitations on the use of discretions such as that contained in section 16 on the basis that they undermine the transparency and accountability of planning decision making.

This article was written by Brendan Sydes and Elizabeth McKinnon, solicitors at the Environment Defenders Office. The EDO advised a coalition of community groups involved in the dispute about the Barwon Heads Bridge