• EXPERTS IN
  • STATUTORY TOWN PLANNING
  • PLANNING PERMITS
  • VCAT

This week, VCAT released an order from a Practice Day Hearing in the case of Salehi v Maroondah CC [2025] VCAT 502 relating to planning applications reviewed under Clause 55. When Clause 55 was enabled, there were transitional provisions that related to application submission and amendment dates. On the Department of Transportation and Planning website, direction was provided for applications submitted prior to 6 March 2025.

Applications lodged before 6 March 2025 will continue to be assessed by the council using clause 55, as it existed before 6 March 2025.

People who objected and applicants who applied under these rules will continue to have the council assess the application using these rules, including rights to object and appeal to the proposed development. VCAT will also be required to assess the proposed development under the old rules.

If the original permit application was lodged before VC267 came into operation, any application for an amendment of a permit under section 72 of the Act, must be assessed under the clause 55 provisions as they existed before 6 March 2025.

The application submitted to Maroondah City Council was for construction of 3 double storey dwellings and removal of vegetation’. The application was submitted on 2 May 2024 and amended 19 July 2024. Council issues notice of refusal on 19 September 2024 and the applicant submitted an application for review to VCAT on 15 November 2024.

With the final hearing date set for 19 June 2025, the applicant was of the opinion that if the plans were amended prior to the hearing, VCAT would assess the application under the current Clause 55. The current Clause 55 provided a more favourable standard that provided a reduced street setback.

The VCAT order concluded that as the application, amendment and Council’s decision dates were all prior to the 6 March 2025, VCAT would assess the application under the previous version of Clause 55, irrespective of amendments being made to the plans after 6 March 2025 and before the hearing date.

#townplanning #planningpermit #developmentapproval #vcatappeal

Not only has Clause 55 sought to make it easier to build townhouses, it has raised the bar on improving one of the three Rs of what has traditionally been a local government responsibility, rubbish.

Standard B5-5 Waste and Recycling is buried under all other standards in Section 55.05 Sustainability. This is a new ESD standard that redefines the missing middle between the kitchen bin and garbage truck.

The standards require adequately sized storage areas for waste and recycling bins and clear pathways for ease of access to move bins within the site. For a townhouse development, the standards require that the development includes an individual bin storage area for each dwelling, or a shared bin storage area for use by each dwelling. An apartment development is to include a shared bin storage area for use by each dwelling.

For each type of development there are tables that provide minimum dimensions for bin storage areas subject to the number of units. There are also requirements for the position of and access to a bin storage area within the development, ventilation and bin washing provisions. These requirements vary depending on whether an outdoor or enclosed bin storage area is provided.

Recognising the variations in waste management complexity between a townhouse development and an apartment development the Townhouse and Low-Rise Code Guidelines recommends that a waste management plan is prepared to demonstrate compliance with the standard in addition to the location and dimension of waste storage facilities on plans.has continued to advise clients on the application of standards but is not aware of any decisions that have been made on applications that have been submitted under Clause 55.  

#planningpermit #townplanning #planningapproval #developmentapproval

With Clause 55 implemented for 6 weeks, CS Town Planning has spoken to architects and developers who are revisiting proposed developments that previously did not receive approval. These projects have been found to either meet the new Clause 55 standards as is or require minor revisions to meet the standards. In one instance, a development was refused by Council and approved at VCAT with the removal of one townhouse to lower the site density. The original design has been found to meet the standards and will be resubmitted with approval expected.

When assessing a development for resubmission there are 13 standards that should be carefully considered to avoid the potential for third party appeal to VCAT. The applicable standards are:

These standards consist of existing and revised standards, that will have content that is familiar, and new standards. The new standards are:

B2-6 Access – New requirement to protect existing street trees by requiring the location of a vehicle crossover or accessway to not encroach the tree protection zone of any tree in a road by more than 10%.

B2-7 Tree Canopy – New tree canopy cover requirement of 10% site area up to 1000m2 and 20% of site area more than 1000m2.

B5-2 Overshadowing domestic solar energy systems – New ESD standard to protect existing rooftop solar from overshadowing.

If the above standards are not met, the applicant can demonstrate how the objective is met and Council can, if in agreement, issue a planning permit on this basis. However, this does provide the option for objectors to appeal the decision to VCAT.

As it is early days, CS Town Planning has continued to advise clients on the application of standards but is not aware of any decisions that have been made on applications that have been submitted under Clause 55.  

#planningpermit #townplanning #planningapproval #developmentapproval

The deemed to comply standards under Clause 55 that commenced on 31 March 2025 were revised to make the approval of the development of two or more dwellings on a lot and residential buildings up to and including three storeys more efficient and predictable.

In some standards, minor revisions have been made that may be overlooked but that have a role in aiding the ability to meet the standards. This is the case in standards B4-4 Overlooking and B4-5 Internal Views.

The objective of the previous standard B22 and current standard B4-4 Overlooking is to limit views into existing secluded private open space and habitable room windows. To achieve this, in the previous standard B22 views were to be obstructed from a habitable room window, balcony, terrace, deck or patio.

In the new standard B4-4, a podium is included in the list of where views are to be obstructed from and a bedroom is specifically excluded from the definition of a habitable room as it applies to this standard.  Generally, the design of building typologies covered by clause 55 would consist of bedrooms on the first floor at the side and rear of buildings that would overlook into existing secluded private open space and habitable room windows.

The objective of the previous standard B23 and current standard B4-5 is to limit views into the secluded private open space and habitable room windows of dwellings and residential buildings within a development. Similarly, a bedroom is excluded from the definition of a habitable room as it applies to this standard.

In both instances, it is likely that a bedroom would be a highly representative typology of habitable room that would require screening to prevent overlooking and is no longer required.

#planningpermit #townplanning #planningapproval #developmentapproval

Referral authorities have an important role in providing recommendations and conditions when reviewing planning applications. When a Council requests comments, a referral authority is required to respond in writing indicating that either there is no objection to issue a permit, no objection subject to conditions or an objection under specific grounds.

When a response by a referral authority is provided, it is done so under the lens of the professional knowledge, experience and area of specialization of the referral authority. It is also very likely that whoever prepared and reviewed the response is not privy to the history, detail and circumstances of an application at a site-specific level.

This is where the understanding and role of a planner at Council is called upon to determine which conditions recommended by a referral authority are appropriate to include in a permit by distinguishing between conditions that are:

Section 55 of the Planning and Environment Act provides the mechanism for planning applications to be sent to referral authorities and for referral authorities to categorised in a planning schemes as determining or recommending. Section 66 in all planning schemes lists the type of application to be sent to a referral authority and whether comments/conditions from that referral authority are determining or recommending.  

Conditions that are required to be included in a planning permit are those from a determining referral authority. Conditions provided by a recommending referral authority create a grey area. Conditions from a recommending referral authority can often be general and could apply to any proposal. These conditions may not have a direct relationship to the outcome of the proposed development and at times can make it difficult for the applicant to satisfy a condition.

Under the Victoria Building Act 1993, building surveyors have the ability to identify performance solutions that meet the intent to the Building Act. If a condition is included in a planning permit that crosses into the realm of the Building Act, the condition in the planning permit must be applied.  The building surveyor loses the flexibility to consider and provide a better solution at the detailed design stage.

Providing a set of clear concise conditions in a planning permit make implementation mor efficient for both Council and the applicant. At the planning application stage, which is an early stage of a development, it is important to obtain comments from referral authorities, and to consider and apply them in the context of achieving a beneficial development outcome.

#planningpermit #townplanning #planningapproval #developmentapproval

In February 2025, the gazettal of Amendment VC257 introduced Clause 32.10 Housing Choice and Transport Zone (HCTZ) and Clause 43.06 Built Form Overlay (BFO), both of which support development of increased housing in activity centres and areas well serviced by public transit that can accommodate higher density. The HCTZ establishes boundaries within which development can occur and the BFO establishes design and built form requirements for these locations.

In April, the gazettal of Amendment GC252 brought in changes to planning schemes to implement the HCTZ and BFO in specific municipalities. The amendment applies to the following planning schemes: Bayside, Boroondara, Darebin, Frankston, Glen Eira, Hume, Kingston, Maroondah, Monash, Moonee Valley, Stonnington and Whittlesea. Within the designated HCTZs in these municipalities, it is estimated that 60,000 new homes will be accommodated.

To facilitate development the Housing Choice and Transport Zone and supporting policies are designed to provide a streamlined planning applications process which includes the removal of notice and review requirements for a majority of planning applications. The application of policy applies to a traditional planning concept with higher density in the core of an activity centre reducing in height and density as the distance from the core increases. Maximum building heights range from 20,12 and 3 storeys which reflects the diversity in size and function of activity centres. The surrounding catchment is represented by a ten-minute walk within with building heights and densities decrease.

In Amendment GC252 the Built Form Overlay does not apply to Ringwood and Frankston activity centres, as existing schedules/planning controls will continue to apply. Within some centres land will be rezoned to Commercial 1 Zone (C1Z) and Residential Growth Zone (RGZ) to facilitate development under the amendment.

CS Town Planning will continue to monitor amendments to planning policy and advice clients accordingly.

#townplanning #planningpermit #planningapproval #developmentapproval

With the revision of Clause 55 in place it’s an opportunity for developers and investors to adjust plans that may not have been supported by Council or that were in the design pipeline before the revisions came into effect. Clients of CS Town Planning that were at various stages from early design conception to application submission are now in a position where applications for the development of two or more dwellings on a lot and residential buildings up to and including three storeys, are being assessed under the revised standards.

For most, the objective is to gain benefit from the investment that has already been made by revising plans to comply with the Clause 55 standards, which will make the approval process more efficient and predictable. It will also reduce the approval timeframe which currently sits at an average of 153 calendar days (5 months) in Victoria.

When reassessing a development, the critical provisions to consider are those that could either remove the option for third party appeal or leave the door open. These provisions are:

In the above provisions, if the standards are met Council will issue a permit and third party appeal to VCAT is not available. If the standards are not met there is the ability to demonstrate that the objective of the provision has been met. If Council agrees and is prepared to issue a permit on this basis, third party appeal rights are available.

The sleepers are, if there are particular provisions or overlays that apply to the property outside of Clause 55, third party appeal rights are available.

For those that have had applications denied or were in the pre-application/application process when revisions to Clause 55 came into effect, there is benefit in revising plans if minor revisions can be made that comply with the standards.

CS Town Planning is continually monitoring revisions to planning policy and advising clients on how to obtain planning permission.g policy amendments and advise clients accordingly.

#tonwplanning #planningpermit #vcatappeal #planningappeal

The State government has implemented Amendment VC280, the Great Design Fast Track into all planning schemes in Victoria.

The amendment provides an option of expedited review for high-quality townhouses and apartment developments where the Minister for Planning is the responsible authority.

The amendment introduces a particular provisions Clause 53.25 into all planning schemes. Application made under this clause will be subject to the requirements to provide notice but will be exempt from third party review (the ability to appeal to VCAT).

Proposed developments must meet the requirements of build quality, design, and sustainability.  The responsible authority may waive or vary any of the following:

To be eligible, a proposed development must obtain written advice from the Office of the Victorian Government Architect and written advice from the Chief Executive Officer or delegate, Invest Victoria demonstrating the likely feasibility of the proposed development, both to the satisfaction of the Minister for Planning.

CS Town Planning will continue to monitor planning policy amendments and advise clients accordingly.

#tonwplanning #planningpermit

A Parliamentary inquiry has been announced that will look into the recent amendments to the Victoria Planning Provisions over the past few months. A Legislative Council Select Committee will conduct hearings to consider the impact of the following provisions:

Input will be sought from planning professionals with a final report due by 13 May 2025.

CS Town Planning will continue to monitor planning policy and advise clients accordingly.

#tonwplanning #planningpermit

Clause 55 includes a new provision, 55.02-7 Tree Canopy.  This provision under the category of Neighbourhood Character includes the objectives of:

There are 2 requirements for tree canopy coverage based on the size of a site, minimum 10% for sites 1000 m2 or under and 20% for sites over 1,000 m2. Trees that make up the canopy cover can be a combination of existing and new trees, with standards for trees that are to be retained and a table used to calculate the characteristics of trees that would constitute the minimum coverage.

It appears that the standards in this provision would not be difficult to meet. The Townhouse and Low-Rise Guidelines prepared by the State government show 4 trees on a on an 850 m2 site and 5 trees on a 1500 m2 site. As the size of the site increase, so to does the size of the canopy. This is also a minimum standard and although an approved development may meet the minimum requirements, future owners have the ability to plant more trees and contribute to the canopy coverage.

But when you dig deeper there is more to it. The challenge is that a prescriptive standard is being applied to trees, and trees grow at different rates under different conditions and may not meet the desired standard. Possibly a foreshadowing of the potential challenges to come, this provision strays from the approach of a black and white prescriptive standard as, any tree required to be planted under this standard must be of species to the satisfaction of the responsible authority, having regard to the location and relevant geographic factors.

There are other options that can be implemented to achieve the objectives of reducing visual impact of buildings on the streetscape, being climate responsive, supporting biodiversity, well being and amenity and reducing urban heat which generally comes under the category of landscaping. Trees are not the only solution and may not suit all properties and all conditions.

CS Town Planning will continue to review and assess how development proposals test the application of Clause 55 standards and advise clients accordingly. 

#tonwplanning #planningpermit