22 September 2026
5 min read
#Planning, Environment & Sustainability, #Victorian Government, #Local Government, #Government
Published by:
There has been significant focus on the ‘big picture’ amendments to planning in Victoria. The changes passed under the Planning Amendment (Better Decisions Made Faster) Act 2026 (Amendment Act), which commences no later than 29 October 2027, include three planning permit application categories, compressed decision-making timeframes for type 1 and 2 planning applications, confined third-party notice and review rights, and enhanced enforcement and penalty provisions, among other changes.
A less-discussed aspect of the Amendment Act, however, has the potential to upend, or partially upend, the longstanding ‘National Trust’ principle. The principle has traditionally limited councils, the tribunal and courts to considering matters relevant to the purpose of the particular planning control under which a permission is sought. The new provision allows local government to specify, through planning scheme amendments, which considerations and policy clauses are relevant to particular planning permit applications.
Although the National Trust principle has been part of Victorian planning law for decades, it remains widely misunderstood. To understand the significance of the Amendment Act’s changes, we revisit the principle and look at how it operates in practice.
The National Trust case, decided in 1975, stands for the proposition that “a discretion cannot be exercised for a purpose other than that for which it is granted”. The case concerned heritage conservation. The Court held that policy in the Melbourne Metropolitan Planning Scheme that gave a decision maker discretion to control building height could not be considered or applied for the purpose of conserving a historic building by restricting building height. Building height was therefore held to not be relevant to heritage conservation.
Before the National Trust case, the High Court in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 observed that the purpose of implementing planning policy must be drawn from the enabling enactment and the relevant planning control that confers the discretion. The scope of a decision maker’s discretion is therefore determined by statutory interpretation. The decision maker must first identify the purpose of the control under which the decision is made and then determine which planning policies are relevant to that decision.
The principle was restated more recently in Brunswick Investment Pty Ltd v Moreland CC [2021] VCAT 1191. Quigley J held that the Victorian Civil and Administrative Tribunal (VCAT) could not consider sustainable transport policy to refuse a permit or impose a condition requiring a reduction of car parking, when no planning permit was required to provide parking above the statutory rate. The discretion was exercised only under the Industrial 3 Zone. Applying the National Trust principle, sustainable transport policy was not relevant to the exercise of discretion under that zone, as “a decision maker may only exercise a discretion for the purpose for which it is conferred”.
Quigley J also held that the requirement for a permit does not open up the broad range of policy considerations or other matters that are not directed to the purpose for which the discretion is being exercised. The decision maker must only consider state and local policies that are relevant to the discretion it has to determine. Policy also cannot expand the purpose for which the discretion is to be exercised beyond the scope of the control itself.
Misunderstanding these principles can result in grounds of refusal being struck out by VCAT, undermining a council’s decision-making.
The operation of the National Trust principle can be demonstrated through various cases.
In Booth v Strathbogie SC [2023] VCAT 1191, the proposal was for a gin distillery, sales and a dwelling in the Farming Zone. The land was within a designated bushfire prone area, but was not subject to the Bushfire Management Overlay.
VCAT held that the bushfire policy clauses of the planning scheme were not relevant to the exercise of discretion under the Farming Zone. Bushfire policy is only triggered where there is an exercise of discretion under the Bushfire Management Overlay.
In other examples, the Supreme Court and VCAT have reaffirmed the National Trust principle by finding that:
However, the Amendment Act has introduced section 84B(4) which provides that:
“… If any relevant planning scheme specifies the clauses of the planning scheme to be considered for applications of a particular class to which the application belongs, the Tribunal must take into account those clauses”.
This appears to be a codified approach to relevance, which differs from the purposive approach.
It appears Parliament intends to create a hybrid approach to relevance. This approach may be described as the purposive approach, under which the decision maker must only consider the policies that are relevant to the exercise of the discretion, determined by relevance to the purpose for which the discretion is exercised, supplemented by a codified approach in which any policies prescribed to be relevant under the planning scheme must also be considered.
VCAT and courts will face the difficult task of weighing matters that are relevant to the purpose of the exercise of discretion against matters that are prescribed to be relevant.
For local councils, a review of decisions where policy considerations relied upon by the statutory planning team were later held to be irrelevant would be a good starting point. If councils identify gaps between the purposes of say, a particular zone, and the policy considerations that ought to be relevant to a decision made under that zone, then a planning scheme amendment to have a schedule to the zone specify clauses of relevant policy in certain circumstances should be considered.
If you have any questions about the planning reforms or need assistance or advice with assessing a permit application or the operation of your planning scheme, please get in touch with us.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
Published by:
