St Vincent’s Hospital recently lodged plans to demolish the building the corner of Victoria Parade and Nicholson Street, a building that overlooks Carlton Gardens. The hospital plans to replace it with a new 11-storey tower with glass façade with parts of the original façade at Daly Wing and Brenan Hall retained. The proposal already raising concerns that it would impact the World Heritage value of the Royal Exhibition Building moments after lodging the plans to City of Yarra Council. According to a statement released by St Vincent’s, the $206 million project, funded by state and federal governments, private philanthropy and project partners, would house a research and training hub, a ground-floor cafe and boast additional rooftop and basement floors. The new building is set to be called the Aikenhead Centre for Medical Discovery and aims to work towards “innovative healthcare solutions for complex chronic diseases”

The application was lodged with the City of Yarra on 21 Dec 2020, and is expected to be brought to a council meeting in Jan 2021. The proposed building falls within the World Heritage Environs Area, a heritage buffer zone for the Royal Exhibition Building and its surrounding Carlton Gardens that extends about block beyond the park’s perimeter.

The Royal Exhibition Building (REB) and Carlton Gardens were inscribed on the UNESCO World Heritage List on 1 July 2004. It was the first built heritage site in Australia to be declared World Heritage because they are the only remaining example of a Palace of Industry from a nineteenth-century world fair on its original site. The site is even more significant because it’s still being used for exhibitions. The heritage buffer zone was introduced by the state government under the requirement of UNESCO to prevent overdevelopment and protect views of the site.

The proposal is already facing opposition from the heritage community. Friends of the Royal Exhibition Building commented the new building design “seems intent on dominating and distracting”. The World Heritage status of the Royal Exhibition Building is up for review this year and The Royal Historical Society of Victoria is “strenuously opposed” to the redevelopment over fears it could impact the review.

A heritage impact statement released by St Vincent’s Hospital said the view of the dome of the Royal Exhibition Building from Victoria Parade would not be impacted by the development, because the view is already blocked by the Aikenhead wing. The new development would be 14.85 metres taller than the current building, but would not cast extra shadow on Carlton Gardens, according to a town planning report lodged by St Vincent’s. The proposal is currently being assessed by the City of Yarra assisted by The National Trust as a referral party. Click Here for the full article from The Age

The proposed redevelopment of Aikenhead wing is not the only controversial the hospital proposed. A separate development at the hospital is yet to begin after it was approved with strict heritage conditions following an appeal in the Victorian Civil and Administrative Tribunal in 2018. St Vincent’s Private Hospital has another 11-storey expansion approved further down Victoria Parade.

The proposal was criticised unusually strong by the Royal Historical Society of Victoria commenting it is “cavalier” and likely to “destroy” the precinct’s low-rise heritage.

“The RHSV is deeply concerned at the impact St Vincent’s proposal would have on the precinct and alarmed at the hospital’s cavalier attitude to the significant heritage value of the area in which it is located,” heritage committee chair, Emeritus Professor Charles Sowerwine, said back in 2018.

Click Here for the full article about the development in Fitzroy.

To boost the recovery of Victoria’s economy after a year of recession brought by the coronavirus (COVID-19), the Victorian Government has identified Victoria’s building and construction sector as a key mechanism to revitalise Victoria’s economy. Back in April 2020, the Victorian Government launched a pilot program, Building Victoria’s Recovery Taskforce Priority Project Fast-Track pilot program. The purpose of the programme was to fast track projects through the town planning process so they could commence on site. The recovery taskforce was setup to identifying projects across the state that are:

• shovel-ready building and construction projects of Victorian State and Regional significance and,
• planning and investment opportunities.
• projects that will provide immediate benefits to Victoria’s economy
• keeping Victorians in work and priority social and economic infrastructure on track for completion.

If the taskforce determined that the project met the criteria then the minister for planning would exercise his power under the Planning and Environment Act 1987 to ‘call the application in’ and his office would essentially replace council as the deciding authority on the application. The Taskforce received 295 applications for assessment of projects to be considered for fast-tracking. The service has proven popular with developers, project proponents and local governments. Applications submitted from across Victoria represent a diversity of projects, including:

• commercial and mixed-use
• hotels
• residential dwellings
• apartments
• social and affordable housing and build – to – rent
• retirement living and aged care
• retail and industrial land.

Following the success of the pilot program, the Minister for Planning, Richard Wynne, has established a twelve-month Development Facilitation Program within the Department of Environment, Land, Water and Planning to speed up the assessment and determination of identified priority projects that:

• Deliver investment into the Victorian economy,
• Keep people in jobs, and
• Provide a substantial public benefit.

Progress to date

Since the introduction of the pilot program and the Development Facilitation Program (DFP), the Planning Minister, has already fast-tracked and approved $7.5 billion worth of projects since March 2020, including one of the largest solar farms in Australia located in regional Wangaratta and a Collingwood commercial development, for the course of generating jobs and help stimulate Victoria’s economic recovery despite both projects been opposed by locals and the local councils.

The commercial development in Collingwood is a 58-metre-tall commercial building in Wellington Street and was opposed by the City of Yarra because of its “excessive” height and scale. At a March planning meeting, the Yarra councillors decided to oppose the 5-green star development because it was not in keeping with the area’s heritage, had “unacceptable” waste management processes, and its failure to achieve “acceptable levels of environmental sustainable design”.

The development than applied for the pilot program and was approved by the Minister who describes the development as having an “acceptable urban design outcome that responds to the emerging character of the area”. The spokeswoman for the Minister’s office further stated 500-600 construction jobs would be needed to build the 15-storey building, which will generate capital expenditure of $214 million and will include landscaping and a new urban plaza on Wellington Street.

As part of the program, the Minister also approved a 13-storey office building with ground-floor retail, near Burnley rail station. The Minister’s office said, this development will generate capital expenditure of $323 million and support 530 construction jobs.

Another project to be fast tracked is a 72-megawatt solar farm on Wangaratta-Kilfeera Road in Laceby, outside Wangaratta. The development was originally designed as a 60-megawatt solar farm with a $93 million price tag, and was opposed by locals who raised concerns about the loss of agricultural land, the risks of fire, and the visual impacts of the solar farm. The Wangaratta Council voted to refuse the planning permit in February but ultimately it was approved by the Minister for Planning eight months later through the Development Facilitation Program.                                     

The solar farm will generate enough power for about 27,000 Victorian households, and is forecast to reduce greenhouse gas emissions by 120,000 tonnes a year which meets all the criteria of the program.

The Development Facilitation Program also helped boost the development of social housing across the state, including a social housing apartment complex in Reservior, consisting 53 two bedroom and three bedroom apartments. The apartment complex is close to public transport and shops, with an $18 million capital expenditure price tag.

As part of the requirements of the Development Facilitation Program, these fast tracked projects are required to commence within 6 – 12 months of approval.

Although the program fast-tracked a number of major projects across the state, almost half the applications were unsuccessful. They did not meet the criteria for a fast track as they were not considered to:

• raise issues of fairness or the public interest, issues of urgency and the public interest would result in immediate action.
• be of State or Regional significance.
• raise a major issue of policy and determination may have a large effect on the achievement or development of planning objectives.
• deliver public value (e.g. public or social housing or environmental sustainability.)
• have been unreasonably delayed.
• provide economic benefits including jobs, capital value, innovation
• Prove project feasibility. Including proof of funding, demand is evident, supply factors mitigated and shovel ready

Project selection

A dedicated facilitation team has been established within DELWP to oversee the program to ensure it is robust and transparent with assistance from Invest Victoria. The team will facilitate projects for accelerated assessment and determination, which includes:

• planning permits; and
• planning scheme amendments.

A project must meet the eligibility criteria below to be recommended for an accelerated assessment and determination. A recommended project does not mean an approved project and the usual planning rules and policies continues to apply.

Project Selection Criteria

Specific criteria have been established by the Department of Environment, Land, Water and Planning to prioritise the assessment and determination of priority projects. The three essential criteria for accelerated assessment and determination include:

Economic:

• The project is of state or regional significance and will have a significant short to medium term economic impact.

Timing:

• The project is “shovel ready” and has investment certainty.
• The technical and compliance matters are resolved or have a clear resolution pathway.
• The views of relevant stakeholders are known.
• The project is dependent on a decision timeframe.
• The project has been unreasonably delayed or impeded.

Policy Alignment and Public benefit:

• The project aligns with government policy and priorities; and
• The project will deliver or is a stimulus to deliver significant public benefit.

The full criteria can be downloaded here.

Given projects that can take part in the program must meet all the criteria of the program, the Development Facilitation Program is heavily weighted to major projects. Even if a project is deemed eligible for the program, it does not necessarily mean a planning permit is guaranteed to be issued by the Minister of Planning.It is recommended that developers continue to do a standard planning application through the local councils and VCAT as the program only assesses if the proposed projects are worthy for the Minister to step in and exercise his power to approve the project.

If you have any questions about the program or have a project that is ready to go and can help the recovery of Victoria’s economy, feel free to get in touch with the team at CS Town Planning Services and we will assist you to take part in the program.

Frequently Ask Questions about the program

How long do I have to make a submission to the Development Facilitation Program?

The program will operate until 31 December 2021.

How long will it take before I know if my project is being referred to the Minister for accelerated assessment and decision?

An initial assessment against the program’s eligibility criteria will typically occur within 14 business days following submission, provided all required information has been provided.

If I apply to the DFP, does this stop a current request before Council or the Victorian Civil and Administrative Tribunal (VCAT)?

No. it is recommended to continue with the usual statutory application process as the Development Facilitation Team are only making recommendations for prioritisation and not decision.

If a project is recommended for prioritisation, is that a guarantee that the Minister will prioritise it?

No. These are recommendations which are non-binding and still provides the Minister with the opportunity to determine the matter as he sees fit.

Am I required to provide financial information for the DFP?

If your project is deemed to have met the eligibility criteria, financial information will be requested to verify project’s feasibility.

If my project is referred and the Minister decides not to intervene, what happens next?

You will be notified in writing of the decision and your project will be required to continue down the normal statutory application process.

If my project is referred and the Minister decides not to intervene, can I challenge this decision?

No, as the DFP is not a formal statutory process. The program has been offered in good faith to assist industry recover from the coronavirus (COVID-19) pandemic.

Do I need to submit a full planning application with technical reports and supporting information?

Yes. The application should include all information that is/would be included in a planning permit application or planning scheme amendment request. Unless all required documentation is submitted, the application will not be assessed.

The Labour government has promised to deliver a historic $5.3 billion Big Housing Build plan to construct more than 12,000 new homes throughout metro and regional Victoria as part of the 2020/2021 state budget. On December 1^st 2020 the planning minister Richard Wynne introduced a sweeping change to planning schemes in the entire state to fast track planning approvals for the housing to be delivered. The package announced in the budget promises to boost the state’s social housing supply by 10 per cent in four years, including replacing 1,100 old public housing units. The program will deliver secure, modern, and affordable homes throughout Victoria – with 25 per cent of funding to be allocated to regional Victoria. The new homes will meet 7-star energy efficiency standards, making them more comfortable during summer and winter, and saving tenants on their power bills.

To ensure the timely delivery of housing, amendment VC187 has been approved on the 1^stDecember 2020, to introduce a new particular provision at clause 53.20 to all planning schemes throughout Victoria to streamline the planning permit process for housing projects by or on behalf of the Director of Housing. The amendment considers the net community benefit and aims to ensure that planning applications assessed under the new provisions will pose no negative amenity impacts on neighbours. The new clause applies to applications on residentially zoned land only.

The new particular provision does not exempt development from the requirements of other planning controls such as overlays. These will continue to apply and a proposal must comply with the requirements of any overlay and the new clause 53.20 to receive a permit. The amendment ensures a permit application for a project on behalf of the Director of Housing considers matters such as neighbourhood character, amenity impacts, vehicle access, heritage, built form and environmental values.

The new particular provision specifically exempts planning applications made by or on behalf of the Director of Housing from the following provisions:

• The Municipal Planning Strategy or Municipal Strategic Statement and the Planning Policy Framework.
• An application requirement or decision guideline of a zone.
• A requirement to meet clauses 54, 55 and 58 of a zone.
• A schedule to a zone except for a specified building height requirement.
• Clauses 52.06 and 65.

The clause also exempts these applications from the notice requirements of section 52(1) (a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(2) of the Act. This means the planning applications will not be subject to public advertising and neighbouring properties will not be able to object to the applications made by the Director of Housing in their neighbourhood. The particular provision also removes any appeal rights of neighbours to appeal decisions by council to VCAT.

While the clause exempts the applications made by the Director of Housing from multiple traditional clauses and guidelines such as ResCode, the clause 53.20 itself consist of multiple application requirements and development standards which apply to all applications made by the Director of Housing across all municipalities. The most notable development standards are noted below:

Other than the above, the clause includes other standards that are similar to the ResCode, such as Private Open Space, Access, Walls on Boundaries, Overlooking and Overshadowing requirements.

The clause also includes requirements for the design of new driveways and vehicular access and car parking arrangements. These requirements are consistent with Clause 52.06 of the planning scheme are largely a transfer of pre-existing requirements and no new measures are introduced.

The particular provision also applies standards for new apartment design in relation to energy rating requirements and also dedicated deep soil areas for canopy tree planting in relation to numbers of trees to be planted on site as part of apartment developments. The requirements are set out in the table below:

The full clause can now be found in all planning schemes of Victoria. Throughout 2020 the planning team at CS have been working with Simmonds Homes in obtaining planning permits for these projects throughout the state on behalf of the Director of Housing. We welcome the introduction on the new clause and believe it will fast track the delivery of these projects throughout the state and we congratulate the Victorian Department of Health and Human Services on the approval of this amendment and wish them every success in providing the housing. There has been a negative reaction to the change by a number of the Victorian Councils who fear that it paves the way for social housing projects with no consultation with existing residents. The liberal members of parliament and CEO’s from Boroondara and Stonnington have expressed concerns and criticised the Labour government for the change in a recent article published in the Age newspaper.  The mayor of Bayside Council has expressed concerns that the proposal will allow for high rise public housing towers in suburbs like Bayside but added that he supports the development of low rise public housing that combines both public and private ownership.

When talking about permit applications, many understand the difference between a planning permit and a building permit. Building permits relate to the method of construction of a building or development where planning permits is a legal document that allows a certain use and / or development on land. Most people are aware they need a planning permit to build or develop but few are aware of the need to get a planning permit to use a building for a specific use if is required within the zone, even if they don’t plan to build or develop. In this article, we will explain what is required in order to obtain a planning permit to use a building for a specific use if it is required within the zone.

In each of the planning zones, all uses are broken down into 3 sections:

Section 1 use – Permit not required

Section 2 use – Permit Required

Section 3 use – Prohibited

Each section lists out all the uses that fall under that specific section with the conditions applied to each specific use. It is important to check these table of uses for each property because a use can be a section 1 use in one particular zone and a section 3 use in another zone; but also each council can have different conditions applied to the same use.

Using a ‘Dwelling’ as an example, it is a Section 1 use under the General Residential Zone within City of Stonnington Planning Scheme but it is a Section 2 use under Industrial Zone 3 within the same planning scheme. This means the use of a building in the general residential zone for a dwelling is a ‘as of right’ use and you do not need council approval to use a building as a dwelling. However in the industrial 3 zone the use of a building for a dwelling requires council approval.

The use of a building as a dwelling is not prohibited in Industrial Zone 3 because it is listed as “Any other use not in Section 1 or 3” so a permit is required.

The categories are set this way because councils don’t want industrial land use to be incrementally eroded or creating a situation that will lead to conflicts between owners while keeping the options open and providing them with the flexibility to allow other uses in the future. If the council do decide to approve a permit for the use of a dwelling within an industrial zone, it is likely conditions such as sound proofing measures and soil test requirements are included in the permit.

When applying for a Change of Use planning permit for medical centres, gymnasiums, childcare centres and other commercial use or industrial use, a number of documents and information are required, a list of commonly required information is:

• Description of the business
• Hours of operation
• Number of staff
• Car parking assessment
• Acoustics report

With the help of a professional town planner, most Change of Use permit applications will be approved if it is identified as a Section 2 use within the zone and almost all permits will have conditions attached.

Example 1 – A gymnasium is proposed next to General Residential Zone land.

A gym is likely to be classified as a Section 2 use in most zones with car parking conditions applied. In this example, the gym is also located closely to residential zone. When council is assessing the application, supply of on-site parking and noise level will be the main factors to be considered. With an appropriately prepared traffic management plan and acoustic report, the application is likely to be approved by council with conditions such as an operating time between 6am – 9pm and not more than a certain number of customers at any one time.

Example 2 – A restaurant (other than take away food premises) is proposed within an industrial zone

A restaurant is likely to be classified as a Section 2 use within an industrial zone, unlike a take away food premises, it is expected to customers will be on-site for a long period of time. If the car parking supply on-site is low and is not proposed to be increased as part of the application, the proposed Change of Use permit maybe approved by the council but due to the low car parking supply there may be stringent conditions such as the number of staff or customers permitted on site at any one time being capped.

A common pitfall of many business owners is to sign a lease on a building and not realise their business is a section 2 use and they need a council issued planning permit to use that building for their business. Even if their fitout of the building is exempt from a planning permit it is very likely they will need a planning permit for the use.

Change of Use permits are often combined with Buildings and Works permits. This means you apply to council for a dual approval as part of one planning application. When your permit is issued the title of what the permit allows will include use and buildings and works.  If you require assistance with permit applications, please feel free to contact our team and see how we can help you obtain a permit for your business smoothly.

On 21 October 2020, the Victorian Government made an announcement which will benefit the hospitality sector after being hit by COVID-19 and ensuring the sector can make a smooth transition to outdoor dining by streamlining planning approvals.

Minister for Planning, Richard Wynne, announced yesterday that existing pubs, restaurants, cafes and other food and drink venues can use existing outdoor spaces, as well as nearby parks and public land to accommodate and serve patrons without the need for a planning permit.

The exemptions being made under planning amendment VC139 will allow venues to capitalise on open spaces including streets, footpaths and carparks to add to venue capacity while restrictions reduce the number of patrons allowed for indoor dining. Businesses covered by the exemptions include restaurants, cafes, bars, hotels, function and reception centres and wineries.

What the amendment does?

The amendment amends clause 52.18 (State of emergency exemption) of Victoria Planning Provisions and all planning schemes to support Victoria’s social and economic recovery from the coronavirus (COVID-19) pandemic through temporary planning scheme and permit condition exemptions that enable outdoor dining and facilitate the reopening and safe operation of restaurants and other food and drink businesses.

The exemptions will operate when a state of emergency declaration under the Public Health and Wellbeing Act 2008 in relation to coronavirus is in force and for 12 months after.

The new planning exemptions will support the hospitality industry by enabling businesses to better plan and use their own land and expand onto adjoining land to accommodate more patrons while the number of patrons is determined by social distancing guidelines.

The new provisions also provide exemptions from the need to obtain planning permits for construction of temporary buildings, the provision of car parking, and the sale and consumption of liquor – subject to conditions.

The amendment includes conditions that limit the hours during which outdoor dining in, or close to, residential zones can occur and require the use of land under the exemptions to not unreasonably affect the amenity of the neighbourhood through noise and other emissions.

Conditions also apply for construction of temporary buildings, limiting the exemptions to temporary and moveable buildings which must be removed from the land before the end of the exemption period and including conditions that limit the height of buildings and require buildings to be set back from adjacent land in a residential zone ensuring the normal planning scheme requirements continue to apply to existing buildings in the Heritage Overlay.

The exemptions apply to permits issued before the approval date of the amendment only, giving businesses more flexibility about how they use their own land in order to comply with public health guidelines. The exemptions will apply while Victoria remains under a State of Emergency, and for 12 months after the State of Emergency has been lifted. Liquor licence, public health matters and public land manager requirements may still need to be met along with council administered local laws.

The full amendment can be view here

The Planning and Environment Division of VCAT is responsible for reviewing some of the decisions made by local councils on applications for the use and development of land, including decisions on planning permit applications under the Planning and Environment Act 1987. During the review process, it is quite often the permit applicants want to change what they have applied for, such as the use and development or the plans submitted with their permit application.

The Victorian Civil & Administrative Tribunal has recently released Practice Note (PNPE9) – Amendment of Planning Permit Applications and Plans with the aim of providing clear guidance on what are the steps required for all parties involved when the permit applicant wants to change their permit application AFTER an application for review has already been lodged at the Tribunal.

The practice note states that if a permit applicant wants to change their permit application after an application for review has been lodged at the Tribunal, then they can only do so if they follow the steps described in this practice note, VCAT will then decide whether or not to allow the changes sought by the permit applicant, usually at the start of the hearing.

The practice note sets out:

• What permit applicants must do when they want to amend their permit application after an application for review has been lodged with the Tribunal;
• What applicants must do if an application is sought to be amended after an application under section 87A of the Planning and Environment Act 1987 has been lodged with the Tribunal;
• What other people must do if they want to become involved in the proceeding as a result of a request to amend the permit application or application; and
• what the Tribunal can do in response to a request to amend a permit application or application.

When does this Practice note apply?

This practice note applies when a permit applicant or applicant wants to amend the permit application or application in the following proceedings under the Planning and Environment Act 1987:

• Section 77 – refusal to grant a planning permit.
• Section 79 – failure of responsible authority to make a decision on a planning permit application within statutory timeframes.
• Section 80 – conditions in a permit.
• Section 82 – decision to grant a permit.
• Section 87A – application to amend a permit that was issued at the direction of the Tribunal.

This practice note does not apply in the following instances:

• Proceedings under other legislation such as environment protection legislation;
• Administrative or corrective amendments to applications, such as amending the name of a permit applicant;
• Circulating draft plans for discussion at a compulsory conference;
• Where the Tribunal has made orders in the particular proceeding which vary or override this practice note; and
• Where notice of the permit application is required but has not yet been given.

What must permit applicants do to amend their permit application?

The practice note lists out the steps as follow:

Just like all other applications with VCAT, documents and notices must be given to all parties involved, such as:

• Responsible authority (Local Council)
• Referral authorities (Such as VicRoads and water companies)
• Other parties to the Tribunal proceeding
• People who have already filed a statement of grounds with the Tribunal, but indicated they do not intend to participate in the hearing.
• People who objected to the permit application, but have not filed a statement of grounds with the Tribunal.
• Persons the responsible authority required to be notified of original permit application.

What does the Tribunal do when it receives a request to amend the permit application?

The Tribunal will normally consider a request to amend a permit application including proposed amendments to plans at the commencement of the hearing. However, an application may be considered earlier than this, for example at a practice day hearing.

In deciding whether to amend a permit application including any plans, the Tribunal may consider the following matters, as relevant:

• the extent and impact of the changes;
• whether all parties and potentially affected persons including referral authorities have been given sufficient time to consider the proposed amendment before a hearing;
• whether the time limits in this practice note have been complied with and any prejudice to a party or potentially affected person arising from any non-compliance;
• whether the amendment improves the proposal or responds to issues that have been raised in the course of the decision making process;
• whether the amendment materially increases the scale or intensity of a proposal or introduces significant changes or new aspects that have not been considered by the responsible authority at the first instance;
• in the case of proceedings under S.80 of the Planning and Environment Act 1987, whether the proposed amendment relates to the condition(s) under review;
• whether the amendment involves the consideration of additional planning controls or policies that were not previously relevant; and
• whether any other circumstances would support the amendment.

VCAT will then decides rather to allow or to refuse the amendment request.

Are you thinking of making an application to VCAT?

The team at CS Town Planning specialise in VCAT representations. For an overview of the formal process of lodging a VCAT appeal or how we can assist you in obtaining the best planning outcome, please visit our website or contact our team of specialists now to discuss your needs.

Today the Minister for Planning introduced a new particular provision, Clause 51.06 Secondary Dwellings, to the Planning Schemes of the Greater Bendigo, Kingston, Moreland and Murrindindi by exercising the Minister’s power of intervention. The Amendment is in response to Victorian Government’s Smart Planning program and Plan Melbourne 2017-2050.

Unlike the standard procedure where an amendment of planning scheme will go through Exhibition stage and Panel Hearing stage. The new clause was introduced directly by exempting the Amendment VC186 from the notice requirements meaning owners and occupiers of land, public authorities and councils that may be materially affected by the amendment did not receive formal notice of the proposed Amendment and were not be able to make submissions in relation to the Amendment and have them referred to a Panel.

It is understood that although The Minister exercised the power of intervention, The Department of Environment, Land, Water and Planning consulted with the City of Greater Bendigo, City of Kingston, City of Moreland, Shire of Murrindindi, the Smart Planning Advisory Group, Smart Planning Technical Reference Groups and a State Government Working Group in relation to this amendment. It is also concluded that Exhibition of the amendment is unlikely to change the outcome of the amendment and immediate implementation ensures that increased effectiveness and efficiency in the operation of the planning system is introduced promptly. 

Why is the Amendment required?

The amendment is in response to the 2017 Smart Planning discussion paper, Reforming the Victoria Planning Provisions, which proposed the introduction of new code-based assessment provisions for simple proposals in order to support small business, industry and homeowners. The reform also aims to simplify and modernise Victoria’s planning policy and rules to make planning more efficient, accessible and transparent.

The amendment aims to reduce the regulatory and administrative burden for both applicants and council planning departments, by streamlining the approvals process through the application of code requirements and use of VicSmart. A simplified process will also support the construction and manufacturing industry with positive economic benefits to employment.

The amendment is also in response to Plan Melbourne 2017-2050 which seeks to provide Melbourne with alternative forms of housing, such as secondary dwellings, that can offer opportunity for small-scale development in established areas.

The code aims to facilitate the construction of small dwellings to provide housing options for an ageing population, multigenerational families and lower income households.

How is the Amendment implemented?

The code for Secondary Dwellings will allow the development of a secondary dwelling that meets a range of development standards to be considered through the VicSmart assessment pathway. A pathway that will see decision made within 10 days.

The amendment introduces a code for Secondary Dwellings to facilitate the development of one additional small dwelling on the same lot as an existing dwelling in appropriate residential zones:

• Mixed Use Zone of the Greater Bendigo, Kingston, Moreland and Murrindindi Planning Schemes.
• Township Zone of the Greater Bendigo and Murrindindi Planning Schemes.
• Residential Growth Zone of the Greater Bendigo, Kingston and Moreland Planning Schemes.
• General Residential Zone of the Greater Bendigo, Kingston, Moreland and Murrindindi Planning Schemes.
• Neighbourhood Residential Zone of the Kingston and Moreland Planning Schemes. 

What is the purpose of this Amendment?

Unlike the Moreland City Council’s Amendment C190 which seeks to allow specifically designed single and dual occupancy residential applications to be processed via the VicSmart fast track process, this amendment introduced by the Minister is much more targeted and strict in terms of what can or cannot be done.

To read more about Moreland City Council’s Amendment C190, Click Here

The purpose of this amendment is to encourage the development of one additional small dwelling on the same lot as an existing dwelling in specified residential areas. The amendment is only introduced to the City of Greater Bendigo, City of Kingston, City of Moreland and Shire of Murrindindi at the moment through the Secondary Dwellings Pilot Program.

A permit can only be granted under this clause if the below are met:

• Must be located on the same lot as an existing dwelling.
• Must be the only dwelling on the lot approved under this clause.
• Must not exceed a gross floor area of 60 square metres.
• Must not exceed a building height of 5 metres.
• Must not contain more than one storey at any point. A basement is not a storey for the purposes of calculating the number of storeys under this clause.
• Where provided, any garden area requirement in the zone must be met.
• Must not be located on a lot that contains a dependent person’s unit.
• There must be no more than two dwellings on the lot as a result of the development.
• The number of car parking spaces on the land associated with the existing dwelling must not be reduced below the applicable requirement as a result of the development.

Other than the above restrictions, the new clause introduced by the amendment also places clear restrictions around subdivision of a lot and a permit will not be granted to subdivide into a new lot that land that contains only a dwelling that has been constructed under a permit granted under this clause. The below condition will be included in all the permits granted under this new clause:

“Before the development starts, the owner must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987 to provide for the following:

The dwelling constructed under this permit must remain on the same lot as the existing dwelling.

Subdivision of the land that would result in the dwelling constructed under this permit no longer remaining on the same lot as an existing dwelling is prohibited.

The ending of the agreement if the dwelling is removed from the land or a permit is granted for the construction of the dwelling under another provision of the planning scheme.

The land owner must pay the reasonable costs of the preparation, execution and registration of the Section 173 Agreement.”

With these restrictions placed around the clause, the Minister aims to encourage developments of smaller dwellings within established areas for the purpose of providing housing options for an ageing population, multigenerational families and lower income households. Unlike developments approved via the normal route, the new dwellings created will not be able to be transacted because there will be no new title of land created. However, the opportunity is that the new dwelling created under this clause will be able to be legally rented out on the open market and create additional income for the land owner.

Other Requirements of the Clause

Although if an application is made under the new second dwelling clause, the provisions of ResCode (Clause 55) do not apply unless specified otherwise and is exempt from the car parking requirements at Clause 52.06-1, there are multiple requirements the new dwellings must be met in addition to the conditions mentioned above in order to apply via VicSmart:

• The dwelling is not located on a lot boundary or closer to a street (other than a rear lane) than the existing dwelling.
• The numerical requirements in the following standards of ResCode (Clause 55):
  • B8 Site coverage.
  • B9 Permeability and stormwater management.
  • B17 Side and rear setbacks.
  • B19 Daylight to existing windows.
  • B20 North-facing windows.
  • B21 Overshadowing open space.
  • B22 Overlooking.
  • B27 Daylight to new windows.
  • B29 Solar access to open space.

What does the new clause mean for land owners?

The amendment made by the Minister has a clear goal, and that is to create new housing options for an ageing population, multigenerational families and lower income household while limiting the growth in housing prices. If you are thinking of unlocking the potential of your property via subdivision and development, this may not be the best option for you. However, if your goal is to create additional rental income and cashflow, this amendment will allow you to do so in a much simpler and time efficient method with high certainty of approval if the new dwelling is designed according to the requirements.

An easement is a defined right of way over all or a designated section of your site that gives third parties legal rights to access the land within the easement. Easements are created on sites for a variety of reasons and purposes but the most common modern use is by infrastructure providers to create rights of access to services such as electricity lines, gas lines and water and sewer mains. The establishment of an easement on a site within a residential subdivision provides infrastructure suppliers the legal right to access and dig up the assets to conduct repairs, upgrades or maintenance. An easement also serves as notice to the landowner or prospective purchaser that there are access rights on their land and, very often underground assets that need to be considered before building.    The presence of an easement provides those suppliers the ability to withhold consent for the construction of any buildings or works within the easement that the provider concludes will impair the underground asset or restrict access to the asset. Easements can occur anywhere within a site. The infrastructure and the suppliers that control it are listed in the table below, depending where in metropolitan Melbourne you are located:

Drinking water & Sewer	Yarra ValleyWater South East Water City West Water
Flooding and Stormwater	Melbourne Water Your local Council
Electricity	Ausnet Powercor United Energy Citipower Jemena

If you are building within or over an easement that is in the favour of one of the above-mentioned authorities you are required to apply to them for approval prior to commencing construction. It is important to note that consent for a build over an easement is a separate approval to a planning permit application and approval of your planning application does not mean your build over easement application will be approved. The most common type of easement affecting suburban properties is an easement of sewer and drainage shown in the image below. In this example the easement runs parallel to both the rear and side boundaries.

Within metropolitan Melbourne the rules largely prohibit the construction of any permanent or habitable structures over a sewer and water mains or within a 600mm horizontal distance of a mains connection. Eaves are typically allowed to encroach an easement by a maximum of 600mm. The local council also discourage the construction of any permanent or habitable structures over a stormwater pipe. The below diagram is from Bayside City council and outlines what they will and will not permit over an easement protecting a stormwater pipe.

The construction of permanent structures over stormwater pipes is allowed by some metropolitan councils where the dimeter of the underground stormwater pipe is equal to or less than 375mm. The City of Monash will allow the construction of a garage over a stormwater pipe that is less than 375mm diameter. This does not mean that you do not need to apply to council for consent to build over the easement, nor does it mean that council will definitely support your application but it does define some of the parameters council rely on when assessing applications.

Why can’t you build permanent or habitable structures over an easement?

The infrastructure providers want to make sure they can get access to the underground assets for repair or upgrade and don’t want to be in a position where they have to demolish a home to get access. This includes access for excavators or other heavy duty equipment. The infrastructure providers will consider and allow lightweight structures such as car ports, fences and garden sheds within easements because these types of structures can be removed easily and quickly if required without major disruption to the landowner.

Can you plant trees in easements?

You do not need approval from the infrastructure providers to plant trees within the easement. However all the providers discourage the planting of large trees within easements because over time roots will disrupt underground pipes and lead to damage or restricted water flow. In an extreme example an infrastructure provider can remove or require you to remove trees within an easement.

Can you remove an easement from your site?

 You can remove an easement if you have the agreement of the infrastructure provider that has benefit of the easement or if it is a historical easement that is superfluous. An example of these types of easements can be carriageway easements that were created along the rear of inner urban properties to allow for horse and cart deliveries and pickups in the 19^thcentury. Such easements are no longer used and landowners will typically fence off this section as part of their yard. The formal removal of these easements can be completed through a simple planning application and updated title plan being created by a registered land surveyor.

This article outlines the online checks about your property you can complete in order to confirm if it is large enough to be subdivided.

1. Check the zoning and planning overlay controls

Visit the Victorian government data information website and type the property address into the search bar. Click on the planning PDF icon pictured below.

This report will provide you a map of your property and show you the zone and overlay controls affecting the land. Typically your property will be in either the Residential growth zone, residential growth zone or neighbourhood residential zone. The residential growth zone is planned to accommodate the majority of growth in housing and density. The general residential zone is planned to accommodate moderate increases in density and changes to the neighbourhood character. The Neighbourhood Residential zone is expected to see very moderate increases in density or developments that depart from the established neighbourhood character.

At the top of the map there is a website link to a schedule. This is highlighted below in yellow and if you click this link it will outline if any additional building regulations beyond the standard rescode regulations apply to your site.

By clicking on the link it will open a table similar to the screenshot below. If there are no additional restrictions on your property beyond rescode then ‘none specified’ will appear in the right hand column per the image below.

If there are additional requirements for new buildings on your property beyond rescode they will appear in this column. An example below shows that for new buildings on this site the owner required a 7.6metre front setback for a new building, private open space for each dwelling of 75 square metres and also has a restriction on the front fence height allowable on their site.

It is important to check these schedule requirements for your site when researching subdivision.

2. Check where the sewer and underground assets are located on your site

There are existing sewer, water and electricity connections on your land that maybe not be visible above ground. The location of these items is available from a service known as ‘Dial before you dig’.   This is a free government service to use but will require you to create an account before you can get the information related to your site. Once you create your account and login click the ‘new enquiry’ icon pictured below.

Complete the ‘enquiry details’ table below per the image and click ‘next’.

Type your street name into the empty field below and click search.

Click on the draw tool highlighted below in yellow and draw around your property boundary. Your outline does not need to exactly match your boundary for the findings to be accurate.

Click on the green submit button on the right hand side of the screen.

In the next screen you will see a table like the below image that outlines the authorities that have been notified of your request. Each of these authorities will send you a map and letter that discloses the location of any underground assets within or close to your site.

This information is very helpful to show you how the existing house on the land connects to sewer, water and electricity. It is also very helpful to identify where any existing underground pipes are that will need to be relocated and recounted during construction. The critical information within the maps is the location of the existing stormwater pipes and sewer pipe within the property. These pipes are the property of council and the sewer provider and these authorities have very strict rules about how close you can build to these pipes and what, if anything they will allow to be built over the pipes. Very often these pipes are within a designated ‘easement’ on the land such as pictured below but they are not always.

The dial before you dig information also contains information that includes the size of the pipe and how far away from the nearest boundary it is. This information isn’t available in a section 32 or from looking at a property title and the plan of subdivision of the lot.    For assistance in understanding any of the information about your property within these maps please contact our office and we would be happy to help. ​

3. Check the property title for covenants or restrictions

Very often property titles will include a restriction to prohibit the future subdivision of a lot. Where such a restriction exists it is easy to identify on certificate of title that comes along with a section 32.

The image below identifies where on the certificate a restriction appear.

If there is a covenant or restriction registered on the certificate of title it is important you read the restriction in full and if required contact an expert to assist in its interpretation. Any mortgages on the property will also appear in this section of title certificate however these will have no bearing on whether or not the property can be subdivided. If there is a restriction or a covenant registered on the property that prohibits subdivision on your land then it will be necessary to vary this restriction as part of the application for a planning permit to council. This adds complexity to your application as it allows any of the designated beneficiaries of the restriction the ability to prevent a subdivision being approved. If you have any restrictions registered on your title please provide a copy to our office to review prior to commencing a subdivision project.

Moreland City Council is currently conducting public exhibition for Amendment C190 which seeks to allow specifically designed single and dual occupancy residential applications to be processed via the VicSmart fast track process. The aim of the amendment is to improve the quality of two dwelling on a lot developments, by establishing a more straight forward planning assessment process for proposals which deliver good quality outcomes.

The key features of VicSmart include a 10-day permit process and applications are exempt from notice and objector appeals of Council’s decision at the Victorian Civil and Administrative Tribunal (VCAT). VicSmart was originally introduced for minor planning applications, such as construction of a front fence or swimming pool. Providing the option for ‘two dwelling on a lot developments’ and ‘a new dwelling on a lot with one existing dwelling’ applications to run via VicSmart process; with no community involvement or VCAT appeal rights and a decision from Council within 10 days, will be a very attractive prospect for many developers and investors alike but also will likely cause disputes between neighbours.

What the amendment does

The amendment introduces an additional class of application into the VicSmart provisions to construct a dwelling if there is one dwelling existing on the lot or to construct two dwellings on a lot in the Neighbourhood Residential Zone and General Residential Zone.

The provision includes requirements that the application must be compliant with Rescode standards of the planning scheme and meet other specified criteria. Two dwelling on a lot proposals which do not meet the provision’s requirements will not be eligible for the VicSmart process. The specified criteria are:

Maximum building height 

The standard maximum building height requirements of the zone must be met. Within the Neighbourhood Residential Zone, the building height must not exceed 9 metres; and must contain no more than 2 storeys at any point. Within the General Residential Zone, the building height must not exceed 11 metres; and must contain no more than 3 storeys at any point.

Minimum garden area 

The standard mandatory minimum garden area requirement of the zone must be met.

Landscaping 

The landscaping requirements within the Neighbourhood and General Residential Zones must be met. These requirements relate to canopy tree planting.

Site layout and building massing 

All numerical standards relating to street setback, site coverage, permeability and width of accessways and car spaces must be met. These requirements ensure that development respects character of the neighbourhood and makes efficient use of the site.

Amenity impacts 

All numerical standards relating to side and rear setbacks, walls on boundaries, daylight to existing windows, solar access to existing north-facing habitable room windows, overshadowing of open space and overlooking must be met. These requirements ensure that the impacts of development on adjoining land owners are not unreasonable.

On-site amenity and facilities 

All numerical standards relating to internal views, daylight to new windows, private open space, solar access to open space, storage and front fences must be met. These requirements ensure that high quality living environments are created for those who will live in the dwellings.

Car parking 

Numerical standards relating to the number of car parking spaces must be met. In addition, requirements have been included to reduce the dominance of crossovers and car parking from the street. These requirements are consistent with Council’s case study analysis and relevant VCAT decisions and are particularly applicable to side by side dual occupancies. These requirements ensure the retention of street trees, adequate space for front garden landscaping and retention of on street car parking spaces.

Liveable (accessible) housing 

All new dwellings must achieve Silver Level of performance under the Liveable Housing Australia, Liveable Housing Design Guidelines. This requirement is consistent with objectives to increase the supply of housing that is visit able and adaptable to sectors of the community with altered mobility. The specification of Silver standard performance gives greater clarity of accessibility requirements to deliver outcomes that improve upon those currently being delivered by the planning scheme provisions.

Environmental sustainability 

All new dwellings must achieve a minimum Built Environment Sustainability Scorecard (BESS) score of 50%, including achieving the mandatory minimum score paths for water, energy, storm water and indoor environmental quality. This requirement will ensure that the outcomes will be of high quality and that the requirements of the Environmentally Sustainable Development local policy will be met in every application.

Why is Moreland Council proposing this?

Moreland receives more than twice the metropolitan average number of medium density planning permit applications and 40% of these applications are for two dwellings on a lot. It is a development type where compliance with ResCode standards is very high.

According to Moreland Council’s analysis, 1 in 2, two dwelling on a lot applications attracts objections, but only 1 in 10 two dwelling on a lot applications is changed as a result of giving notice. Any changes made are almost always very minor in nature and typically involve a ruler length in difference in some aspect of the building envelope. This is a very low return on the investment of time and energy put into objections and VCAT appeals by neighbours. Moreland Council believes the amendment will provide better outcomes, for both those who live in this housing, and the broader Moreland community, whilst at the same time making more effective use of resources.

What about VCAT Appeals?

VCAT is concluding that Council’s assessment of two dwelling on a lot applications against the requirements of the planning scheme is robust and reasonable. Third party rights of review are adding to the time taken to obtain a decision but not altering the outcome in any meaningful way.

To qualify to be processed within the streamlined process, all requirements must be complied with. By requiring development to adhere to all standards, it will be of high quality. If any of the requirements are sought to be varied, the application will be processed within the standard planning application process with public notice and VCAT review rights applicable.

Benefits of the more straight forward assessment process

Moreland Council suggests two dwelling on a lot development that complies with all numerical standards of the planning scheme achieves high quality outcomes for both those who live in this housing, and the broader Moreland community. The benefits of the straight forward assessment process are:

• Better quality housing for the Moreland community
• Improved customer service and certainty for landowners, developers and the community
• ResCode standards become mandatory rather than discretionary for those opting for this application pathway
• Better ESD outcomes due to the inclusion of ESD as a requirement in criteria
• Better housing accessibility due to a requirement for certification from Liveable Housing Australia.

By requiring full compliance with requirements to qualify for this application stream, Council can secure these outcomes for the community without the time and expense for all parties associated with seeking improved compliance via objections or expensive VCAT reviews.

Where to inspect Amendment C190 documents

The amendment can also be inspected on the Department of Environment, Land, Water and Planning website.

Have your say

Amendment C190 is now on public exhibition and you are welcome to make a written submission to Council to express your views. Submissions must be received by Friday 17 July 2020.

If you would like to make a submission to council, our expert town planners can assist you to make a formal written submission. Feel free to contact our team to discuss.