Who is this guidance for?
This guidance is intended for use by councils when preparing an instrument of delegation and delegation guidelines in their role as a responsible authority under the Planning and Environment Act 1987 (the Act).
What is its purpose?
The purpose of this guidance is to set out best practice principles to assist councils to set up decision-making processes that:
- increase certainty through consistent approaches to decision making across councils
- retain community representation through councillors in the planning process
- reduce delays in the planning process through delegation arrangements that facilitate efficient and timely decision making
- recognise the key role of councillors in determining the strategic direction of the municipality.
What does it contain?
This guidance sets out key delegation principles which provide a proportional approach to delegations in planning decision making. This suggests that councillors should remain engaged in applications of significance or broad community interest, while council officers should have delegation to determine all other applications for planning permits as a default position for planning decisions. It also enables councillors to focus on strategic planning policy decisions and direction for the municipality.
What does the Act allow?
The Act outlines the powers, duties, and functions of a council (acting as a responsible authority) in relation to applications for planning permits. The Act allows for a Council to delegate some of these powers, duties and functions to:
- a committee of the Council
- a council officer
- the Victorian Planning Authority.
What led to development of this guidance?
Each year, approximately 50,000 applications are received by councils in Victoria. The power to delegate enables councils to efficiently process applications for planning permits. A council’s delegation is formalised through an ‘instrument of delegation’ that sets out which powers, duties and functions are delegated and to whom. Some councils also prepare guidelines that support an instrument of delegation and outline processes for using the delegation.
Generally, councils adopt broad delegation, allowing council officers (‘delegate’) to determine most applications for planning permits. This allows for efficient use of resources to assess and determine applications. In this guidance a delegate is a council officer who is delegated a power, duty or function in an instrument of delegation.
Better Regulation Victoria undertook a review of Victoria’s planning system in 2019. The review identified that there is variance between councils about which applications should be decided by the Council and which should be decided by a council officer.
The development of this guidance included data from 8 councils and input from technical working groups which included representatives from the Municipal Association of Victoria, Victorian Planning and Environmental Law Association and the Planning Institute of Australia.
This guidance sets out principles for delegating powers, discretions, or functions under the Act to an officer of a council to improve consistency in delegations across councils.
The following principles have been designed to help a council to prepare an instrument of delegation and any associated guidelines.
Principle 1 – Delegation by exception
An instrument of delegation should adopt a ‘delegation by exception approach’. This means that all powers, duties and functions should be delegated to council officers, and the exceptions to this should be clearly stated.
An instrument of delegation should clearly set out the titles of council officers to whom the powers, duties and functions are to be delegated.
Using Principle 1
As each council has its own corporate structure, council plan and budget, planning departments will vary in their resourcing and the roles and responsibilities of officers within these departments. The delegation should be commensurate with the seniority of positions, reflected generally in the job description for that position. As a general guide, senior positions will have more delegation than less senior positions.
Two or more senior positions (including at manager level) should have delegated authority to determine all permit applications.
Examples of how this might be captured in a schedule to an Instrument of Delegation are shown in the table below. For example, in the table, the power to decide to grant a permit under s.61(1)(a) has been delegated to a planner, senior planner and planning manager.
Planning and Environment Act 1987
|Column 1||Column 2||Column 3||Column 4|
Description of power, duty or function delegated
|s.61(1)(a)||Power to decide to grant a permit||Planning manager |
|The power is subject to provisions 1, 2 and 3 of the delegation guidelines as adopted by the Council.|
Principle 2 – Use delegation guidelines
An instrument of delegation may be supported by delegation guidelines that set out protocols and thresholds for when delegated powers, duties and functions should not be exercised by council officers.
The delegation guidelines should be given effect through the schedule to the instrument of delegation.
Using Principle 2
Delegation guidelines may set out principles and can include a level of detail that may not be appropriate to be included in an instrument of delegation.
Delegation guidelines will differ between councils. They may set out delegation thresholds for different classes of permit applications or areas within a municipality, such as activity centres or strategic development areas. They should also include protocols for assessing and deciding permit applications. For example:
- thresholds for when a permit application will be considered by a planning delegates assessment panel (PDAP)
- the composition of a PDAP
- the circumstances in which consultation will occur between council officers (or a PDAP) and councillors, which could be based on the class of application, complexity or location
- the circumstances in which engagement will occur between council officers (or a PDAP) and permit applicants and objectors, which could be based on the class of application, complexity or location.
Councils should review delegation guidelines every 12 to 24 months, to ensure that they remain current and effective.
A planning delegates assessment panel (PDAP) is a panel of two or more delegates, at least one of which is a senior council officer. It may include non-planning officers such as a building surveyor, environmental health officer, or traffic engineer. The composition of a PDAP may be based on the type or complexity of a permit application.
- can be used to assess or decide all or part of a permit application
- allows for a range of technical views to be heard
- can bring senior officer experience into decision making on complex permit applications
- can reduce the number of matters that are decided by the Council
- demonstrate to councillors that complex applications are being appropriately considered under delegation with senior officers involved.
A council officer typically prepares a planning report and recommendation for consideration by the PDAP. This same officer would attend the PDAP meeting to answer any questions the PDAP may have.
The delegate that decides the permit application should not be the officer that prepared the planning report.
The planning report and council officer recommendation should be signed by the council officer who prepared the planning report and the delegate that decides the permit application.
This delegation must be exercised in accordance with the schedule to the instrument of delegation.
1. A delegate will not exercise delegated authority to decide an application under section 61(1) (a), (b) or (c) of the Planning and Environment Act 1987 if:
- one or more councillors have requested in writing that council officers do not exercise delegation; or
- a delegate considers the application to be of significance or broad community interest and warrants determination by the Council.
2. A delegate will not exercise delegated authority to decide a planning application under section 61(1) (a), (b) or (c) of the Planning and Environment Act 1987 and will refer a planning application to a planning delegates assessment panel (PDAP) with at least two delegates and other council officers for determination if:
- a delegate considers the application to be of significance or broad community interest and warrants determination by a PDAP; or
- a delegate otherwise considers the application warrants determination by the PDAP.
3. A delegate who considers an application warrants determination by a PDAP should consult with the relevant ward councillor or other councillors before the PDAP determines an application if:
- the delegate considers the application to be of significance or broad community interest but does not warrant determination by the Council;
- the application relates to a previous decision made by the Council; or
- the delegate otherwise considers it appropriate to do so.
Principle 3 – Use the significance and broad community interest tests
The basis for a permit application to be decided by the Council or a committee of the Council, should be where the application is of ‘significance’, or of ‘broad community interest’.
Using Principle 3
Council should include criteria in the delegation guidelines about what constitutes a permit application of ‘significance’ or ‘broad community interest’ to guide council officers in exercising delegation. Examples may include permit applications that:
- relate to council-owned land
- have acute impacts on adjoining properties
- have major economic development, employment, or infrastructure provision implications
- raise significant issues in relation to the implementation of local, regional or state planning policy.
Principle 4 – Call ups should not be common practice
A planning application should not be called up by councillors as common practice.
A call up is where one or more councillors request in writing that a delegate not exercise delegation. A permit application should generally not be called up by a single councillor.
Principle 5 – Call ups should be clearly documented
If a permit application is called up, this should be clearly documented including how the permit application meets the significance and broad community interest tests in Principle 3.
Using Principle 5
If a matter has been called up, it should be documented in the council meeting agenda and minutes, including details of:
- the reasons for the call up
- why the delegation should not be exercised.
Principle 6 – Decide to call up permit applications early
Make it clear to council officers and the permit applicant if there is an intention to call up an application as soon as is practicable. This should occur at the earliest time after the permit application is made, and if notice of the application is given under section 52 of the Act, or the application is required to be referred under section 55, no later than 7 days after the day on which the responsible authority may decide the application under section 59.
Principle 7 – Provide reasons for Council decisions
Where a Council decision differs from the council officer recommendation, clear reasons for the decision should be included in the council meeting minutes.
Principle 8 – Provide delegation to council officers at VCAT
To facilitate the Victorian Civil and Administrative Tribunal (VCAT) review process, council officers should be delegated the power to, or instruct a representative to:
- negotiate and settle with all parties when attending a compulsory conference
- form a position on any amended plans or proposal filed with VCAT
- prepare, file and serve amended grounds, having formed a position on any amended plans or proposal filed for a review under sections 77, 79, or 82.
This should apply irrespective of whether the decision was made by the Council or a delegate.
Principle 9 – Make delegations publicly available
Instruments of delegation and delegation guidelines should be made publicly available. Councils should publish these on their website.
Page last updated: 25/05/22