Determination of a waterway under the planning scheme

This bulletin brings attention to the VCAT decision Development Victoria v Knox CC [2023] VCAT 1094 (22 September 2023). The decision provides a summary of the legislative framework for the determination of a ‘waterway’ under a planning scheme.

This matter involved three separate applications brought under the Planning and Environment Act 1987 (Vic) (‘PE Act’) for review of decisions made under the Knox Planning Scheme (‘Scheme’) in respect of a proposal to develop the site for residential purposes and construct new wetlands in the location of an existing waterbody. 

It was considered necessary to determine if the waterbody is a ‘waterway’ under the Water Act 1989 (Vic) (‘Water Act’) because the application of policy dealing with waterways is different if the waterbody is a ‘waterway’ under the Scheme compared with the application of policy if the waterbody is not a ‘waterway’. 

VCAT’s decision found that, if a waterbody that is a ‘waterway’ under the Water Act, it is also a ‘waterway’ under the Scheme because:

  • Clause 73 of the Scheme provides that a term used in the Scheme has its ordinary meaning unless that term is defined in the Scheme or in the PE Act or the Interpretation of Legislation Act 1984 (Vic) (‘IOLA’), in which case the term has the meaning given to it in those Acts.
  • The PE Act does not include a definition of ‘waterway’, but section 38 of the IOLA provides that, in all Acts and subordinate instruments, unless the contrary opinion appears, ‘waterway’ means a waterway as defined in section 3(1) of the Water Act.
  • The Scheme does not indicate that it is not intended that ‘waterway’ have the meaning given under the Water Act, therefore there is no ‘contrary opinion’.

VCAT’s decision also considered the application of the Waterway Identification Guidelines 2022, published by Department of Environment Land Water and Planning as a document under section 60(1A)(g) of the PE Act, specifically:

  • the guidance on the interpretation of each paragraph of the definition of ‘waterway’ in the Water Act; and
  • the decision pathway and flow chart that can be used to assess whether a waterway exists at a site.