You have just found a property and it is going up for auction on the weekend. You have been looking for a long time and this one ticks all of the boxes. Maybe you want to subdivide and build two or three townhouses, do a knock down and rebuild, or just do a renovation with an extension and a new garage.
Being informed of the planning regulations before purchasing a property is important in order to understand the type of development permitted and the approval timeline. This will avoid a situation where a property is purchased only to find out that you can’t do what you were expecting within the timeframe you were expecting.
Let’s talk about what needs to be considered.
Understand the Market
Real estate agents are a great resource. They know the market in their area, what people are looking for, what is selling and at what price. If you know what type of property you are looking for, they can help you find it.
Planning Policy
Overall, planning policy is supportive of increasing the housing supply. In principle, the development options mentioned above should be permitted, however each property is different. This seems like an obvious statement but it is an important concept to understand because when planning regulations are implemented, the design outcome will vary across properties and the circumstance could arise that dramatically impacts the expected development outcome.
Zoning
Zoning will influence the extent to which increased residential density will be supported. Typical residential land use zones include General Residential, Neighbourhood Residential and Residential Growth Zone. Each of these zones will have specific requirements and may have local variations that have been applied.
Overlays
Overlays are applied over top of a land use zone for the purpose of protecting heritage buildings, preserving local character, addressing flood and bushfire risks and creating buffer areas between incompatible or sensitive uses.
Planning Regulations
The subdivision and development of a property must consider factors such as building design footprint and setbacks, site coverage, amount of paved and permeable area, building height, fences and walls along boundaries, landscaping, overlooking and overshadowing.
Each of these elements will create variations in the building design and site layout depending on the property size, shape and the context of surrounding properties.
Driveway Crossovers and Nature Strips
If a new driveway crossover is required, consider the category of road it is entering onto. If the driveway is crossing through a nature strip, consider trees and the location of connections to infrastructure. All of these may require comments from referral authorities, which are the government departments and companies responsible for infrastructure.
Easements
Easements provide legal rights for the use of land for a specific purpose. A regulatory easement can be held by a Council (such as a laneway) or service authority (electricity, water, ICT infrastructure). A private easement allows property owners to access land such as a shared driveway. Easements could be operational, put in place for future use or the result of a legacy use that is no longer operational (such as a remnant of non-functioning laneway).
Covenants
A covenant could be applied to a property to restrict the type of development (only single story detached houses allowed), maintain consistent design standards ( the building must be constructed using a specific material ie. brick) or to prevent subdivision of the property. Conditions of a covenant can be amended but it can be very challenging.
It is important to understand the planning requirements and process before purchasing a property. CS Town Planning offers a professional service that will conduct a town planning due diligence review of a proposal on a site to determine whether planning approval is required. Alternatively, free resources are available online and at your local council that will assist in making an informed investment decision.
This VCAT decision represents an interesting decision on the consideration of policy in the form of an overlay, but it also represents the conundrum of deciding when or if amended plans should be submitted.
The decision involves the case of Scoventure Pty Ltd v Yarra CC (Red Dot) [2024] VCAT 1207 (19 December 2024). It considers a proposal for use and development of an eight- storey office building on an industrially zoned parcel of land in Abbotsford in the City of Yarra.
The significance of this case is in determining if policy, in the form of an overlay, applies to a property outside of the overlay. The short answer is yes, even though a proposed development is outside of a defined overlay area, the policies in the overlay should be considered. However, the extent to which policies are considered depend on the specific context of the site and proposed development.
Equally interesting was the position of Council. In March 2022, a proposed development on the same property was the subject of VCAT hearing Shouman Pty Ltd v Yarra CC (Red Dot) [2022] VCAT 313 (25 March 2022). This decision considered a proposal for an eight- storey office development, which was refused by Council. Prior to the hearing, the applicant submitted amended plans that resulted “in some increased setbacks and a slight reduction in the overall height of the building to a maximum height of approximately 29.9m.”
Based on the amended plans and other conditions to be included in a permit, Council’s position was that it no longer opposes the grant of a planning permit. It submits that the re-organisation of the building’s massing and other modifications have addressed earlier concerns related to the proposal’s visual impacts, equitable development opportunities and parking and traffic. VCAT supported Council’s original decision and no permit was granted.
In the VCAT hearing 2 years later, a planning permit was submitted for an 8-storey office building (with slightly reduced setbacks and height compared to the 2022 proposal). A decision was not made within the statutory timeframe, and the applicant lodged this application with the Tribunal for a review of the Council’s failure to grant a permit. Again, the applicant submitted amended plans prior to the VCAT hearing and Council’s position remained unchanged, which was that a planning permit was not supported based on the following reasons:
- The proposal would result in excessive visual intrusion when viewed from the Yarra River corridor
- The proposed height, scale and mass of the proposed building will create an unacceptable visual impact to the low-rise residential area to the north of Marine Parade
In this instance, although it is recognised that there were changes to policies in the Planning Scheme that were considered, VCAT set aside Council’s decision and granted a permit.
In hindsight, how could this have been different. When the application was submitted that lead to the VCAT hearing in 2022, if the applicant submitted an updated plan to Council at an earlier date, it appears the Council would have issued a planning permit and a hearing avoided.
When the application was submitted that lead to the VCAT hearing in 2024, the 2022 case provided a recorded decision of Council being favourable for a proposal with slightly greater bulk and height, yet the application was not supported by Council.
In a move to speed up the development of social and affordable housing, Amendment VC273 has been brought in which changes clause 52.02 of all planning schemes.
Prior to the amendment, clause 52.02 provided exemptions that were applied to the use or development of land that is:
- Funded wholly or partly, by the Victorian or Commonwealth Government; and
- Carried out by or on behalf of the Chief Executive Officer, Homes Victoria.
This meant that any project that received funding from the Victorian or Commonwealth governments had to be directed through Victoria’s Big Housing Build program to receive the exemption afforded through clause 52.02.
Amendment VC273 changes the heading of clause 52.02 from VICTORIA’S BIG HOUSING BUILD to GOVERNMENT FUNDED HOUSING DEVELOMENT and removes the reference to Victoria’s Big Housing Build program which is replaced by the Victorian or Commonwealth Government. The result of this is it increases the diversity of projects that will obtain the exemptions provided these projects are funded by the Victorian or Commonwealth governments and continue to be Carried out by or on behalf of the Chief Executive Officer, Homes Victoria.
Conditions that the clause does not apply to is maintained such as:
- The subdivision of land.
- The use or development of land in an industrial zone, rural zone or Port Zone.
- The use or development of land in a Bushfire Management Overlay.
Victoria’s Big Housing Build was announced in November 2020. Other planning clauses that relate listed under streamlined planning linked to Victoria’s Big Housing Build and on behalf of Homes Victoria include:
Clause 53.20 – Housing by or on behalf of Homes Victoria facilitates the development of social and affordable housing in a residential zone by or on behalf of Homes Victoria.
Clause 53.23 – significant residential development with affordable housing facilitates the development of social and affordable housing.
These clauses remain in place and have not been affected by Amendment VC273.
After an emergency from a natural event such as a bushfire, flood or windstorm, Clause 52.10 in Planning Schemes provided an exemption that allowed rebuilds for the continued use of land within a 5 year period. After the horrendous bushfires in 2019-2020 communities are still rebuilding and their planning exemptions were starting to expire from 31 December 2024.
In order to relieve pressure communities are facing from increased expense and timelines for rebuilding, not to mention the social and community stress, a simple yet significant amendment has been made to extend rebuild times for landowners to 7 years.
The purpose of clause 52.10 is to facilitate reconstruction of buildings and the re-establishment of businesses and services after an emergency. Beyond the extended timeline, the benefit that this amendment provides is it reduces resource and administrative costs of responsible authorities by exempting certain types of use and development from requirements of the planning scheme and the third party notice and review requirements of the Act.
The amendment also supports the following Planning Policy Framework objectives and strategies:
- Clause 11 (Settlement) – The amendment supports existing settlement patterns and takes advantage of available investment in infrastructure and services.
- Clause 13 (Environmental Risk and Amenity) – The re-establishment of dwellings, businesses and services are not exempt from the usual planning scheme requirements relating to climate change, environmental risk and amenity.
- Clause 17 (Economic Development) – The amendment contributes to the local economy by supporting the reestablishment of businesses and services.
This amendment will also support community building efforts resulting from future natural events that are becoming more frequent.
The Small Lot Housing Code that facilitates the development of houses on lots less than 300 square metres, has been revised (Small Lot Housing Code 2) to include updated standards Type A and B designs outcomes and introduce a new topology, Type C. The revisions:
- Deliver an update to the Small Lot Housing Code (SLHC) to introduce a new ‘Type C’ lot that will facilitate the delivery of dwellings on lots between 75 and 150sqm.
- Update the Type A and Type B standards that were identified in the Stage 1 review and to improve to design outcomes where possible to align with Type C standards.
- Prepare draft planning scheme amendment GC206 to introduce the updated SLHC.
- Update the Practice Note to reflect the changes to the SLHC.
- Provide improved guidance for the preferred location of SLHC product.
The Small Lot Housing Code can be applied in most residential and mixed-use Precinct Structure Plans in the Urban Growth Zone (UGZ) in Melbourne’s greenfield and regional growth areas provided that it is incorporated into the planning scheme and where the lot is identified to be assessed against the Small Lot Housing Code via a restriction on title.
A planning permit is not required to construct or extend one dwelling on a lot with an area less than 300 square metres where an exemption is provided for in the relevant planning scheme and where a site is identified as a lot to be assessed against and complies with the Small Lot Housing Code.
If the Small Lot Housing Code is included in a planning scheme it is not a mandatory requirement. A home builder or developer can choose to utilise the Small Lot Housing Code or submit a planning application through the standard process.
Under the Economic Growth Statement, the Victoria State Government will be removing Clause 52.27 Licensed Premises from all Planning Schemes as of 1 July 2025. This section applied to premises that were licensed or to be licensed under the Liquor Control Reform Act 1998. The purpose of this section was to ensure that licensed premises are situated in appropriate locations and the impact of the licensed premises on the amenity of the surrounding area is considered.
Currently, businesses need to apply both for a liquor licence from the Victorian Liquor Commission and a planning permit from their local council. As of 1 July 2025, businesses that want to serve liquor will only be required to apply to the Victorian Liquor Commission.
Removing this section from all planning schemes will eliminating the requirement for a business to apply for a planning permit to sell or consume liquor.
Planning applications will continue to be submitted for zoning and planning requirements to maintain amenity checks through the assessment of provisions relating to types of businesses to be located in an area, operating hours, signage, parking and other relevant provisions the relate to amenity in the surrounding area.
The state government has also indicated that a planning permit will not be required for outdoor dining on public land. The application process for outdoor dining is a responsibility of local Councils. At this point, there is no specific information available on when and how this will be implemented.
Although, in principal, a business is allowed to be located in an activity centre, shopping strip, industrial area, office building and mixed-use area, when a lease for is signed and time is ticking to prepare for opening day, one may quickly discover that you don’t know what you don’t know.
In most instances even though a lease has been signed, you will probably need a planning permit. Business Victoria provides direction which includes choosing a location and considering land use zoning and the planning process. The time frame for preparing and submitting a planning application and waiting for approval could have an impact on the planned opening date, particularly if you are not familiar with the process.
CS Town Planning has a variety of clients who are small business owners ranging from those who are experienced and build in plenty of lead time to obtain a permit, to those who are unaware, did not realise they needed a planning permit and are anxious to have everything in place for opening day. CS Town Planning works on behalf of our clients to navigate the planning process and secure planning applications.
Common elements that require a planning permit include parking requirements (which could vary by type of business), signage and renovating a shopfront. Expansion of a building/floor area and locating a business in a specific land use zone may also require a permit.
There may be other factors that need to be addressed in a planning applications such as land use overlays that cover a geographical area and are not directly related to the specific type of business. A common overlay is a Heritage Overlay, any buildings within these areas need to address specific design requirements that reflect and preserve the historical significance of an area. A requirement for all applications submitted is the inclusion of a site plan and building elevations. These plans will provide a conceptual representation to support the elements included in the planning application. When submitting a planning application on behalf of a small business owner, CS Town Planning ensures that a comprehensive package is submitted. A Council has a timeframe of 60 days to approve an application, which can be extended if information is missing, or inadequate information is provided.
CS Town Planning advocates on behalf of our clients to have conditions removed from planning permits that are considered to be overly onerous. These conditions can come as a surprise to an applicant as they can be applied by a Council without the prior knowledge of or discussion with the applicant.
A recent ruling by VCAT in Tsourounakis v Cardinia SC on 20 November 2024 has served as a reminder that the consequences of removing or altering a condition from a planning permit needs to be carefully considered. In this case, a planning permit was granted for an education centre which included a condition of capping the number of students below the threshold that would trigger a requirement to apply parking provisions under Section 52.06 Parking Overlay of the Cardinia Planning Scheme.
In summary (T)he applicant sought to vary that condition to increase the number of students, the result of which would introduce a permit trigger under clause 52.06 and considerations under the Parking Overlay which were not included in the description of what the permit allows and were not considered by the responsible authority in deciding to grant a permit.
As a result, it was determined that an appeal of the planning condition under Section 80 of the Planning and Environment Act was inappropriate. Removing the condition of capping the number of students would introduce a scenario of increasing the number of parking spaces, which was not considered by the responsible authority when reviewing the application and granting the permit.
When working with our clients, CS Town Planning recommends that if considering an appeal to remove or alter a condition of a planning permit, there should be an assessment of the cost of implementing a condition against the time/cost of appealing a condition and the potential for a successful appeal.
The Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024 was introduced into Parliament on the 27 November, 2024. While the focus of Bill 2024 in the media has been on rental and real estate agent reform, the Bill also proposes some significant reforms to the planning scheme amendment process, metropolitan planning levy, planning panels and VCAT.
A summary of planning related reforms in the Bill, as provided by the UDIA, are presented below. CS Town Planning will be monitoring these reforms as they are implemented and advise clients accordingly.
Planning permit applications
- Allow Responsible Authority to review application when lodged and if incomplete, give RA power to void application if information not received in prescribed time
- New Ministerial Guideline around when a permit might cause material detriment; these guidelines would be considered by the RA when giving notice of an application
- Extend default planning permit expiry period (section 68)
- Remove the mandatory requirement for permit applications called in by the Minister to go to a planning panel
Metropolitan Planning Levy
- Enable the exemption of payment of the Metropolitan Planning Levy (MPL) in certain circumstances, including where an MPL Payment has already been made for substantially the same application
- Enable certain classes of applications and certain circumstances to be prescribed as not being leviable planning permit applications
Planning scheme amendments
- Formalise the process for proponent-led amendments to the planning scheme
- Require councils to advise a proponent and Minister of its decision in relation to the request
- Minister can decide to continue a PSA if abandoned by the planning authority
- New low-impact PSA pathway for less complex amendments, where planning authority can consider submissions without referring to a panel (how to designate ‘low-impact’ to be set out in regulations)
Planning Panels
- Planning Authorities can deem a submission frivolous, vexatious or wholly irrelevant
- Submissions that are the same or substantially the same can be treated as one
- Panels can hold an expert witness conference to consider issues/prepare a joint expert report
- Panels can consider matters on written materials if there is not a major issue of policy
Compensation claims
- Requiring interest to be paid on compensation awarded by VCAT or the Supreme Court.
- Allow Governor in Council to set the rate of interest on the recommendation of the Minister (in consultation with A-G, Treasurer and Minister for Major Transport Project).
- Introduce new forms and requirements for supporting evidence in compensation claims.
Amendments in relation to certain proceedings at VCAT
- Allow VCAT to join multiple objectors as a single grouped party if the statement of grounds raises similar issues
- VCAT can also appoint one or more of those objectors as a representative of the group
- VCAT can conduct hearings on the documents, confine issues, impose reasonable time limits on making submissions, dismiss matters or parts of matters that are lacking in substantive or merit.
- Allow VCAT to serve an order a party and require that party to serve the order to another party.
- VCAT to give reasons in summary format if they affirm or varies the decision.
In January 2024, Planning Scheme Amendment VC250 was introduced which created a provision at Clause 53.03 in all Planning Schemes prohibiting new gas connections. This provision applies to all new residential dwellings, apartments and subdivisions that require a planning permit. Clause 50.03 also requires mandatory clauses in a planning permit to ensure that no gas connections can be constructed after the development is completed.
This applies to all planning permit applications lodged after 1 January 2024. One year on from the implementation of Clause 53.03, CS Town Planning has seen this direction reinforced by VCAT. The following is the standard new condition applying to new permits for residential development:
Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
Knowledge of what Clause 53,03 does and does not apply to is particularly relevant for those are considering a knock down and rebuild of an existing residential dwelling. If an existing residential dwelling is serviced by gas, once demolished the gas connection cannot be reinstated.
There are other circumstances where a gas connection can be maintained such as alteration or extension of an existing residential dwelling or the subdivision of land or a building to create lots containing an existing dwelling of an existing. If you want to maintain a gas connection, it is best to get advice prior to redevelopment or renovation of a residential dwelling.