We recently wrote about two VCAT decisions that discussed the VicSmart provisions. As regular readers will be aware the VicSmart provisions have been significantly widened this year to incorporate a larger number of application types.
In Wittenbach v Cardinia SC [2017] VCAT 793, one of the issues the Tribunal was required to consider was; if an application meets the requirements specified in the VicSmart provisions is it automatically a VicSmart Application. In consideration of this question the Tribunal noted:
28 I do not find there is any intention in the VicSmart provisions to make them the exclusive means of consideration of classes of applications that can be a VicSmart application. Rather, I consider that the VicSmart provisions provide an opportunity for a permit applicant to pursue the VicSmart fast track permit application process for assessing VicSmart applications as provided for by clauses 90-95 of the planning scheme if a permit applicant chooses to do so. If a VicSmart application is made, then the provisions of clauses 90-95 apply. But unless a specific VicSmart application is made, I do not consider that those provisions automatically apply to any other permit application notwithstanding it may be eligible for a VicSmart application to be made and so considered, but where such an application has not been made.
In this passage, the Tribunal makes it clear that the onus of confirming an application meets the requirements of VicSmart and making a VicSmart application is on the permit applicant. Applications not lodged as VicSmart applications can and will be considered as normal applications, even if they fall within the classes of applications specified within VicSmart.
Permit applicants should familiarise themselves with the classes of VicSmart applications and ensure they utilise the fast-track VicSmart application system whenever appropriate.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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In recent issues we have discussed the extension of the VicSmart system, set out in Clauses 90-95 of the Victorian Planning Provisions (VPP). VicSmart provides a shorter planning permit process for simple and straightforward applications. Two recent VCAT decisions have dealt with the VicSmart provisions and will be of interest to regular permit applicants:
Changing to VicSmart from non-VicSmart?
Wittenbach v Cardinia SC [2017] VCAT 793 was an appeal by an objector against Council’s decision to grant a permit to develop a shed and a pergola in the Green Wedge Zone. Between the Tribunal hearing on 20 March 2017 and the Tribunal making a decision, the planning scheme changed, including the introduction of additional development classes to the State VicSmart provisions. The permit applicant sought to have the appeal struck out on the basis that the changes to the planning scheme resulted in the matter qualifying as a VicSmart application.
The permit applicant notified the Tribunal of the change and noted that VicSmart applications are exempt from third party notice and appeal rights. The matter was put to a practice day hearing where the Tribunal considered:
Whether the VicSmart provisions now apply to the permit application?
Whether the proceeding should be dismissed because the objectors no longer have any right of review?
The Tribunal commented that the VicSmart provisions did not introduce new planning controls to the planning scheme, but rather changed the process requirements relating to the making of an application, decision guidelines and third party notice and review (appeal) rights. The Tribunal noted in this decision that
“…there is no justification for reading the provisions as applying retrospectively to any existing applications, which were made prior to their application. Such applications would not have been applications that were specifically made pursuant to the VicSmart provisions with the necessary information specified in the provisions accompanying the application.
And
…I consider that the VicSmart provisions provide an opportunity for a permit applicant to pursue the VicSmart fast track permit application process….if a permit applicant chooses to do so. …But unless a specific VicSmart application is made, I do not consider that those provisions automatically apply to any other permit application notwithstanding it may be eligible for a VicSmart application to be made and so considered…
In light of these findings, the Tribunal considered that the application in Wittenbach v Cardinia SC was not automatically a VicSmart application, it had not been applied for with the necessary information requirements for a VicSmart application (it was not eligible at the time) and was therefore not exempt from third party notice and appeal rights.
The Tribunal also referred to Section 28(2) of the Interpretation of Legislation Act 1984 which protects the objector’s appeal rights, where a subordinate instrument or a provision of a subordinate instrument (such as a planning scheme) is amended, the amendment shall not (unless expressly stated to the contrary) affect any right, privilege, obligation or liability accrued or incurred under that subordinate instrument. At the time that the appeal was lodged with the Tribunal, a right of review had accrued to the appellant and had been exercised.
The findings from the practice day hearing were that the objector appellant maintained a right to have the matter heard on appeal and that the application was not a VicSmart application.
Quick, poor, irrelevant and unreasonable decision making
In Portland Historic Building Restoration Committee Inc v Glenelg SC [2017] VCAT 519 an appeal was made pursuant to Section 149a of the Planning and Environment Act 1987 (a general appeal for a declaration) against Council’s decision to grant a planning permit to demolish a bluestone wall included in a Heritage Overlay. On receipt of the planning permit through the VicSmart process, the wall was demolished. The appellant sought a declaration that the proposal to demolish the wall was not exempt from notice (advertising) and appeal under VicSmart provisions or the Heritage Overlay.
The appellant submitted that the way in which Council officers dealt with the permit application was inadequate having regard to the provisions of the planning scheme and the heritage significance of the wall.
Clause 91 of all Planning Schemes limits and specifies the matters which Councils can consider in VicSmart applications, and exempts other matters which non-VicSmart applications remain subject to.
In this case the Tribunal reached the conclusion that the Council was unreasonable when it decided to grant a permit for the demolition of the stone wall, being a decision so unreasonable that no reasonable responsible authority acting reasonably could ever have come to it.
In summary, the Tribunal found that:
At Clause 92.04 of all Planning Schemes, to demolish or remove a fence is a class of VicSmart application unless the fence is identified in the schedule to the Heritage Overlay;
Because the specific Heritage Overlay control did not identify the stone wall, it is exempt from third party notice and appeal rights;
On consideration of legislative and dictionary definitions, a “wall” is considered a “fence” for the purpose of the exemption from third party notice and appeal rights under the Heritage Overlay;
While VicSmart provisions are intended to speed up the planning process, the same standards of decision making are required as for non-VicSmart applications. The matters required to be considered under the relevant decision guidelines of the VicSmart provisions were not properly considered and irrelevant matters were considered, in this case:
The safety concerns about the wall.
The Council officer’s assessment of the heritage significance of the wall was misguided and failed to give proper weight to evidence and to the opinion of the Council’s heritage adviser (who had recommended the wall be retained, stabilised and conserved as there was there was no adequate engineering advice to support demolition of the wall)
There was a manifest objective on the part of the owner to get rid of the wall for reasons that were not relevant to consider under a VicSmart assessment.
Council had not properly considered whether it was possible to avoid or manage the adverse impact on the heritage significance of the wall; a relevant decision guideline in the VicSmart provisions; and
To the extent that safety or cost matters were considered, they were irrelevant considerations. The Tribunal stated … the only factors upon which weight can be placed in the decision-making process for demolition or removal of a fence under the Heritage Overlay pursuant to Clause 92.04 are heritage considerations.
In summary the Tribunal found that the Council as responsible authority had failed to properly discharge its duties and that the Council’s decision to grant a permit to demolish the stone wall was a decision that was beyond its power.
The Tribunal also suggested that all Councils review their Heritage Overlays to ensure that important heritage items, which can be characterised as fences or outbuildings, are listed as not exempt from notice and appeal, otherwise they are able to be considered as VicSmart applications.
In this instance, the wall had already been demolished prior to the matter getting to VCAT. So the Tribunal’s finding were more a reprimand to Council than anything else.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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Regular permit applicants will be familiar with VicSmart, Clauses 90-95 of the Victorian Planning Provisions (VPP), introduced in 2014. VicSmart provides a shorter planning permit process for simple and straightforward applications. Key characteristics of the VicSmart system include:
A 10 statutory-day timeframe in which Council should determine applications;
Exemption from 3rd party notification & review rights;
Assessment against a narrow and specific set of decision guidelines;
Applicants are expected to obtain any relevant referral advice before lodging;
Removal of elected members of Council from the decision process.
The type (or classes) of applications that can be processed under VicSmart are listed in Clause 92 of the VPP, with specific details such as application-information requirements and specific decision guidelines contained in Clause 93.
A recent (March 2017) state-wide planning scheme amendment (VC135) has expanded the reach of VicSmart by incorporating additional classes of applications and lowering the bar for some existing application types. Below is a summary of the more notable changes, as well as areas that have not changed, within VicSmart as a result of the latest amendment.
Application Triggering Provision
New Class of Application added to VicSmart
Changes to Existing Classes of Applications
Residential Zones
Nil
Nil
Industrial Zones
Nil
The value of works for applications to construct a building or construct or carry out works has been increased from $50K to $1M, allowing for more applications to be captured by the VicSmart system.
Commercial Zones
Nil
The value of works for applications to construct a building or construct or carry out works has been increased from $50K to $500K, allowing for more applications to be captured by the VicSmart system.
Rural Zones
Numerous new application types included within RLZ, GWZ, RCZ, FZ, RAZ (See page 4of16 Clause 92 VVP)
Not applicable. Zones newly included in VicSmart provisions.
Special Use Zone
Numerous new application types included (See page 5 of 15 Clause 92 VVP)
Not applicable. Zone newly included in VicSmart provisions.
Comprehensive Development Zone
Numerous new application types included (See page 5 of 15 Clause 92 VVP)
Not applicable. Zone newly included in VicSmart provisions.
Capital City Zone
Nil
The value of works for applications to construct a building or construct or carry out works on land used for specific purposes has been increased from $50K to $500K, allowing for more applications to be captured by the VicSmart system.
Docklands Zone
Nil
The value of works for applications to construct a building or construct or carry out works on land used for specific purposes has been increased from $50K to $500K, allowing for more applications to be captured by the VicSmart system.
Priority Development Zone
Numerous new application types included (See page 8 of 15 Clause 92 VVP)
Not applicable. Zone newly included in VicSmart provisions.
Activity Centre Zone
Numerous new application types included (See page 9 of 15 Clause 92 VVP)
Not applicable. Zone newly included in VicSmart provisions.
Environmental Significance Overlay
Numerous new application types included (See page 9 of 15 Clause 92 VVP)
Not applicable. Overlay newly included in VicSmart provisions.
Vegetation Protection Overlay
Nil
Nil
Significant Landscape Overlay
Certain type of buildings and works associated with a dwelling including construction of a carport, garage, shed, watertank and more
Nil
Heritage Overlay
Nil
Nil
Design & Development Overlay
Numerous new application types included (See page 12 of 15 Clause 92 VVP)
Nil
Neighbourhood Character Overlay
Numerous new application types included (See page 12 of 15 Clause 92 VVP)
Nil
Erosion Management Overlay
Numerous new application types included (See page 13 of 15 Clause 92 VVP)
Not applicable. Overlay newly included in VicSmart provisions.
Salinity Management
Overlay
Numerous new application types included (See page 13 of 15 Clause 92 VVP)
Not applicable. Overlay newly included in VicSmart provisions.
Special Building Overlay
Nil
Nil
Parking Overlay
Nil
Nil
Advertising Signs
(Cl 52.05)
Nil
Signs displayed within an increased number of zones have been included in VicSmart
Car Parking
(Cl 52.06)
Nil
The requirements for an application to reduce carparking has increased from 5 spaces to 10 spaces, allowing for more applications to be captured by the VicSmart system.
Loading & Unloading of Vehicles
(Cl 52.07)
Nil
Nil
As outlined above, this most recent set of changes significantly increases the number of application types/classes that fall within the VicSmart system. Clause 1 is hopeful that more and more application types will be included within VicSmart over time.
Permit applicant’s should make themselves familiar with the criteria for applications within VicSmart and consider utilising this faster system whenever possible.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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In the first VicSmart application to be determined by VCAT, Johnson v Banyule CC [2015] VCAT 444, the Tribunal has provided a timely reminder to Councils & permit applicants that only the limited number of matters set out for each application type are relevant for consideration.
In summarising the above case the Tribunal noted:
This is the first VicSmart application determined by the Tribunal. The application was to construct a fence within 10 m of a front boundary and a permit was required under a Design and Development Overlay.
Clause 91 of the scheme provides that a responsible authority must only consider the decision guidelines for the relevant class of VicSmart application and is exempt from considering the policy framework (and other matters) in deciding a VicSmart application.
The responsible authority did not comply with clause 91 because it took into account the policy framework. Accordingly, the need to integrate policies and balance conflicting objectives under clause 10.04 does not apply. The Applicant relied on various grounds that also did not comply with clause 91. The Tribunal held that the relevant considerations in this proceeding were confined to the design objectives and decision guidelines under the schedule to the overlay.
The decision is marked as a red dot decision because it is a reminder that a responsible authority and an applicant for review must not take into account or rely on grounds that go beyond the matters for consideration for a VicSmart application in clause 91.
In this instance the Tribunal actually found in favour of Council and no permit was issued. But the principle associated with simpler and faster consideration of VicSmart applications is the real winner.
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The State Government has made significant changes to the residential development requirements within Victoria’s Planning Provisions. Planning Scheme Amendment VC243 was gazetted on 22 September 2023 and was made as part of the Victorian State Government’s response to support housing delivery. In summary, the changes:
Remove the planning permit trigger for the construction or extension of one dwelling on a lot over 300m2
Introduce VicSmart permits for single dwellings on lots less than 300m2, if selected (ResCode) Standards are met
Clarify and codify the decision criteria for a number of Clause 54/55 (ResCode) Standards
Implement the Future Homes project across Victoria, including the introduction of exemplar designs for apartment buildings.
We look at each of these in turn, below:
Planning Permit Trigger on lots over 300 square metres
This change applies to the Township Zone, General Residential Zone and Neighbourhood Residential Zone. The zone provisions provide that a planning permit is required to construct or extend one dwelling, or construct or extend a fence within 3 metres of a street, on a lot of less than 300m2 in area.
Previously the 300m2 threshold could be varied by the schedule to the zone, up to 500m2, and a number of Councils had increased the threshold to 500m2. The opportunity for any planning scheme to vary the 300m2 threshold has now been removed and 300sqm is the maximum lot size on which a planning permit can be triggered to construct or extend one dwelling, or construct or extend a fence within 3 metres of a street, in these zones.
The changes do not provide Transitional Provisions, which means they apply immediately and to any existing applications.
Practitioners should be aware of the following:
Any current planning permit applications lodged with Council for the construction or extension of one dwelling on a lot between 300-500m2, where the only planning permit trigger was under the zone, are likely to be returned by Council – no permit is now required
If other planning permit triggers exist, the application will continue to be processed by Council – however no ResCode (Cl54/55) assessment will be undertaken
Any application that is impacted by the above changes should be carefully considered to determine whether or not a Report and Consent is triggered – given no ResCode assessment will be undertaken by Council as part of the ‘planning’ assessment
Any VCAT proceedings associated with application that are impacted by the change should be carefully considered to determine how the change impacts those proceedings.
VicSmart Permits for single dwelling developments on lots less than 300m2
VC243 introduces a VicSmart option, within the Mixed Use, Township, General Residential, Residential Growth and Neighbourhood Residential Zones, for the construction and extension of one dwelling on a lot (less than 300sqm), if the following Clause 54 Standards are met:
A3 Street setback
A10 Side and rear setbacks
A11 Walls on boundaries.
A12 Daylight to existing windows.
A13 North-facing windows.
A14 Overshadowing open space.
A15 Overlooking.
Practitioners should be aware that:
Only applications lodged as VicSmart applications, will enjoy the benefits of the VicSmart process
VicSmart applications are exempt from other requirements in the planning scheme, are not subject to notification and appeal rights and provide a streamlined option for applicants.
Other Clause 54 Standards (beyond those listed above) and Objectives still form part of the application’s assessment in the normal way.
The codification of Standards, discussed below, will be of assistance to applicants wishing to use this VicSmart process.
Regular readers of our Planning TidBits will be aware of the frustration caused by VCAT and Councils adopting various interpretations of Clause 54 and Clause 55 provisions in answering the fundamental question of: If the Standard is met does that mean that the Objective is met?
Amendment VC243 removes any ambiguity relating to this issue for many Clause 54 and 55 Standards.
Clause 54 now includes the following clarification:
If a development meets standard A3, A4, A5, A6, A10, A11, A12, A13, A14, A15, A16, A17 or A20, it is deemed to meet the objective for that standard.
Where standard A3, A4, A5, A6, A10, A11, A12, A13, A14, A15, A16, A17 or A20 is met the decision guidelines for that standard do not apply to the application.
Whilst Clause 55 now includes the following, similar, clarification:
If a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.
Where standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 is met the decision guidelines for that standard do not apply to the application.
In addition to the above changes, small (but notable) changes have been made to Standards associated with Front Fences and Building Height as follows:
Amendment VC243 removes the requirement for Standards B7 & A4 (Building Height) that:
Changes of building height between existing buildings and new buildings should be graduated.
VC243 also deletes the following requirement from Standards A20 and B32 (Front Fences):
The design of front fences should complement the design of the dwelling or residential building and any front fences on adjoining properties.
Practitioners should be aware that:
The codification of Standards A3, A4, A5, A6, A10, A11, A12, A13, A14, A15, A16, A17 or A20 and B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 means that if the Standard is met the Objective of that Clause is met – end of discussion.
The small changes to Standards B7, A4, A20 and B32 (above) will assist in providing greater flexibility in front fence and height transition issues.
The provisions of Cl 53.24 “…prevail over any inconsistent provision in this planning scheme”
The provisions only apply to an apartment development in the General Residential Zone that meets the criteria specified in the provision
Pre-application referrals will be required for suitable projects
An eligible application is exempt from numerous planning scheme requirements including Clause 55 and 58, any decision guidelines within the GRZ and objectors appeals to VCAT
Clause 53.04 includes its own Development Standards that must be met under the following headings:
Car Parking
Bicycle parking
Communal open space
ESD
Accessibility
Building entry and circulation
Storage
Functional layout
Room depth
Windows
Natural Ventilation
Deep soil canopy cover
Implement the Future Homes project across Victoria
Amendment VC243 also introduces a new Clause 53.24 (Future Homes) to all Victorian Planning Schemes. The provision introduces the concept of ‘exemplar designs’ for streamlining apartment development approvals.
Practitioners should familiarise themselves with these new provisions and note:
Clause 53.04 is considered a bold step in the right direction to facilitate increased housing in appropriately located areas. However, the extent of flexibility in the ‘Exemplary Designs’ and the extent of changes that can be made to them is yet to be understood and will take some months to be tested at Council and VCAT level.
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A recent Red Dot decision by the Victorian Civil and Administrative Tribunal (the Tribunal) in Mornington Peninsula SC v Premier Homes Pty Ltd [2021] VCAT 9, considered whether six dwellings constructed as ‘dependent person’s units’ (“DPUs” – otherwise known as “granny flats”) met the planning scheme definitions of a ‘dependent person’s unit’ and a ‘movable building’. Such buildings which meet the Planning Scheme definitions are exempt from the requirement for a planning permit for buildings and works, under the zone provisions.
Council made a request to the Tribunal under Section 149(1)(a) of the Planning and Environment Act 1987 (the Act). Such an application seeks a determination relating to the interpretation of the planning scheme in relation to land or a particular use or development of the land.
This particular application was made in relation to six properties at various locations in the Mornington Shire, all constructed by one building company for the purposes of DPUs. Council’s position was that these dwellings did not meet the definition of “dependent person’s unit” or “movable buildings” and that over time, the type of dwelling that was being constructed under the guise of a DPU was getting larger and beyond the intent of planning provisions, to become second dwellings.
The Tribunal noted in their decision that:
A ‘dependent person’ is not limited to the elderly or people with disability. However, in practice, a DPU provides a diverse and affordable housing option for these two groups in particular. In accordance with the government’s planning policy framework, a DPU commonly does not require a planning permit for either use or development. Under clause 62.02 of Victorian planning schemes, a DPU is exempt from the need for a planning permit for buildings and works unless specifically required by another provision of the scheme. This can be contrasted with a second dwelling on a lot that is not a DPU, where a planning permit will often be required, or where specific design and/or siting requirements apply.
The definition of “Dependent Person’s Unit” in the planning provisions is:
A movable building on the same lot Accommodation as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing dwelling.
The definition of “Movable Building” in the planning provisions is:
A structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion.
The Council sought declarations from the Tribunal that the six subject buildings were:
not, for the purposes of the Scheme, movable;
not, for the purposes of the Scheme, dependent person’s units; and
not exempt, pursuant to clause 62.02 of the Scheme, from the need for a planning permit for buildings and works.
Council submitted that the buildings were not “movable” due to the level of deconstruction and reconstruction involved, whereby each building had to be almost completely dismantled before being moved, and therefore not “designed to be moved”. The Tribunal found that:
the proceeding should not be determined on prescriptive criteria drawn from previous VCAT decisions, where no rigid test exists in the planning scheme;
The phrase “designed to be moved” does not prescribe how, or in what state the building is to be moved from place to place;
There are no strict criteria as to the minimum number of parts or the process or time the moving of the building may take;
There is clearly an emphasis on design in the definition of “movable building”. Relevant to the outcome of any case may therefore be:
evidence about the design process and intent,
the nature of the component parts
the level of wastage or reuse
construction techniques
the level of retrofitting
the ease or timing of deconstruction, transportation and reconstruction
whether the design includes the objective that the building be moved at some point
how it is constructed to enable disassembly and reconstruction or whether it is constructed in an ordinary way
The DPU must be designed so that it can be moved more than once – that is, capable of being relocated within its lifespan on at least three separate sites, with at least two possible processes of disassembly, transportation and reassembly.
DPUs require a registered Building Surveyor to approve the building permit, which in practice means demonstrating that the building meets the exemption tests for a DPU in the Planning Scheme. By expert evidence, in this case, the Tribunal found that the preparation and approval of building plans for DPUs was very general and did not include design features which demonstrated whether the building was “movable” (and therefore exempt from a Planning Permit).
The Tribunal also provided commentary on the existing regulatory framework in the Planning Scheme which made it difficult to “draw the line” when making a determination as to whether a building had been designed to make it a “moveable building”, either looking at separate components individually or the design as a whole, noting:
….the fundamental basis upon which the planning permit exemption arises for a DPU is not transparently assessed through the building permit process nor made clear in the issue of the building permit itself.
The Tribunal found that, given it was Council’s application for declarations, that Council bore the persuasive burden of satisfying us that the buildings have not been ‘designed to be moved from place to place on more than one occasion’. The Tribunal found that submissions had not provided conclusive evidence that the six subject buildings had not been designed so as to be moveable, and that the lack of fixed criteria in the planning scheme made this determination difficult.
During the hearing, the Tribunal considered lists of individual items which parties believed were important in designing a building that could be considered as “designed to be moved”. Some items were not considered determinative, such as sheet roofing secured by screws, because that was in very common usage in colorbond roofing fixing in non-DPU buildings. The Tribunal noted that three elements identified during the proceeding were more important, at least in the facts of that case, in differentiating dwellings which may not have been designed to be move. They were:
the manner of the construction of the wall segments.
the manner of the wiring –to ensure that all electrical cables come to the top plate to facilitate the segmentation of the walls.
the way in which all the plumbing goes through the floor and not the walls.
The Tribunal considered that these three items supported the view that Council had not made out its case, however, they were still not conclusive of the contrary view. The Tribunal noted that the process of determining whether a planning permit was triggered or not should be simple and that the current definition for “Movable Building” had an emphasis on whether the building was designed to be moved, rather than whether it is actually constructed in that way, or whether the building is actually moved (or required to be moved) once it ceases to be occupied by a dependent person, or at all.
The Tribunal did not make alternative declarations and dismissed the case, the order including a direction that the decision be sent to the Minister for Planning, to consider whether any regulatory reform or clarification was warranted. Given that the State Planning Department is currently trialling a program of code-compliant second dwellings through the VicSmart process, we may see further changes to the DPU provisions to improve the uncertainty identified in the above case.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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In a recent article we reported on Moreland City Council’s Planning Scheme Amendment C190, which proposes a new class of local VicSmart application that would allow planning permit applications for two dwellings on a lot within the General Residential and Neighbourhood Residential Zones. If successful the Amendment would allow such applications to be processed under the VicSmart provisions, without the need for public notification and third party appeal rights, if strict criteria are met.
The State Government is now taking this concept one step further and is trialling a Secondary Dwelling Code to facilitate small-scale ‘granny-flat or garden studio’ style accommodation on the same lot as an existing dwelling in a residential area.The pilot program is being trialled in the municipalities of Murrindindi, Moreland, Greater Bendigo and Kingston.
The program creates a “Code Assessment” for small secondary dwellings, that met the following criteria:
Located within one of the following zones:
Township Zone;
Mixed Use Zone;
Residential Growth Zone;
General Residential Zone and
Neighbourhood Residential Zone.
Meets the garden area requirements of the zone, where applicable.
Meets a range of siting and design requirements including not exceeding a gross floor area of 60 square metres and not exceeding 5 metres in height. Specified Clause 55 requirements must also be met, including those relating to overlooking, side and rear setbacks and solar access to open space.
A secondary dwelling will not require a car space.
A subdivision must not create a new lot which only contains a secondary dwelling.
The secondary dwelling’s location must be on the same property as an existing dwelling and be the only secondary dwelling on the property. If a Dependant Persons Unit is already located on a property you can’t have a secondary dwelling.
The secondary dwelling must have a kitchen sink, food preparation facilities, a bath or shower and a toilet and washbasin.
However, if a property has an Overlay which introduces an additional permit trigger (such as a Heritage Overlay), then the standard permit assessment pathway (non-VicSmart) will apply. Unlike a Dependant Persons Unit, there are no requirements around who may live in the secondary dwelling, and unlike a Dependant Persons Unit a secondary dwelling is a permanent dwelling.
The pilot program will run from August 2020 to March 2021 at which stage the data from the pilot program will be analysed to inform the consideration of introducing the code into all Victorian planning schemes for use.
If you have applications that you think might qualify for the pilot program we would be very keen to speak with you and we look forward to reporting on the outcomes of the program in the new year.
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Email: enquiries@clause1.com.au
Web: www.clause1.com.au
Moreland City Council has announced a potentially revolutionary planning scheme amendment that could significantly reduce the time and cost associated with permit applications for dual-occupancy developments, throughout the majority of the municipality.
So, what does Amendment c190 include?
The amendment proposes a new class of local VicSmart application that would allow planning permit applications for two dwellings on a lot within the General Residential and Neighbourhood Residential Zones, be processed under the VicSmart provisions, if strict criteria are met.
Regular applicants will be aware that VicSmart applications:
Provide for a 10 day statutory timeframe in which a decision should be made;
Are exempt from third-party notification and review rights to VCAT
And remove the elected Councillors from the process. For more details on the VicSmart process click here: https://clause1.com.au/?s=VicSmart
The potential benefits of C190 are obvious, and could save applicants more than six months, remove the riskof frivolous objector appeals and remove unnecessary political interference by Councillors, for compliant projects.
Amendment C190, as exhibited, provides that an application within a GRZ or NRZ to Construct a dwelling if there is one dwelling existing on the lot or construct two dwellings on a lot, could be assessed as a VicSmart application, if the proposal meets:
The minimum garden area requirement
The minimum height requirement
The requirements of the following Clause 55 Standards
B6 Street setback
B8 Site coverage
B9 Permeability
B14 Access
B17 Side and rear setbacks
B18 Walls on boundaries
B19 Daylight to existing windows
B20 North-facing windows
B21 Overshadowing open space
B22 Overlooking
B23 Internal views
B27 Daylight to new windows
B28 Private open space
B29 Solar access to open space
B30 Storage
B32 Front fences
The number or carparking spaces required by Clause 52.06
Additional requirements relating to the siting of new crossovers and garages
A minimum BESS score of 50%
A ‘silver’ rating under the Liveable Housing Australia Design Guidelines
Moreland is the first municipality to attempt to utilise the VicSmart provisions in such a significant manner.
Moreland, alone, receives approximately 150 applications for dual occupancies per year. Across the whole of Victoria that number is estimated to swell to more than 5000 applications. These applications can take more than 180 gross days to determine and tie up an estimated $2.5billion in potential development activity… And those numbers do not include the additional time some of these applications spend at appeal.
Clause 1 Planning, joins the majority of the industry in congratulating Moreland on this initiative. We wish them every strength in their endeavour and are hopeful that other municipalities will follow their lead.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd
Phone: 03 9370 9599
Email: enquiries@clause1.com.au
Web: www.clause1.com.au
One of the most common complaints from regular permit applicants is the length of time the planning process takes. In Victoria, Councils have a statutory requirement to determine a planning permit application within 60 days, subject to certain milestones which start and stop the clock (readers can visit the Clause 1 website for an in-depth article regarding calculating Council’s 60 Day statutory timeframe). Despite the 60 day statutory timeframe, it is not uncommon for applications to take more that 6months to move through the Council process.
As a Victorian planning permit applicant, you have the right under Section 79 of the Planning and Environment Act (the Act) to lodge an appeal with VCAT if Council fails to determine your application within the 60 day statutory timeframe. Applicants contemplating appeals under Section 79 should also be aware that Section 115CA of the VCAT Act obligates Council to reimburse the applicant the whole of any fees paid by the applicant in the proceeding, unless Council can convince the Tribunal it would be unreasonable to do so.
However, Section 79 appeal can add significant cost and time-delays to the finalisation of a matter.
It is interesting to compare Victoria’s system with the statutory timeframes for planning permit processing, in other Australian states:
New South Wales – Has a “Complying development” fast track approval process combining planning and construction approval for straightforward development, issued in as little as 20 days.
Other development assessments which are not regionally or state significant and are not fast track applications should be determined within:
40 business days for standard applications,
60 business days for more complex application or where other parties are involved and
90 business days for State significant development.
If the relevant authority does not determine the application within this time it is deemed to have been refused.
Other states and territories have varying timeframes based on the type of application lodged. A number of states have a “deemed to be refused” or “deemed to be approved” provision which applies when a decision is not made in the specified timeframes, with these automatic outcomes subject to appeal.
The planning decision time frames of other states are summarized below
South Australia – has a 5-business day “deemed to satisfy” pathway if a proposal meets specified criteria, 20 business days for a Commission or Panel decision, and up to 60 business days where an agency referral and/or public notification is needed. Subdivisions also generally have a 60 business day timeframe, after a 5- business day verification period.
Queensland – has distinctions between “Code” assessment and “Impact” assessment applications and has provisions for the application to be deemed to be approved if not otherwise determined within the specified time frames.
Time frames are 10 business days for the assessment authority to confirm the application is received concurrently with 10 business days for the assessment authority to request further information, up to 35 business days to refer and receive assessment from a referral authority, then up to 35 business days for a decision to be made (less up to 10 business days for any time taken to make an Information Request).
Western Australia - 60 calendar days to determine applications where no consultation is required and 90 calendar days if any consultation/referral is required. If local government has not made a decision within these timeframes the application is deemed to be refused, although a decision can be made after this time frame.
Northern Territory – is covered by the Northern Territory Planning Scheme except for areas covered by the Jabiru Town Plan. The Planning Scheme is administered by the Department of Infrastructure, Planning and Logistics. Applications are made on-line. Applicants have a right to appeal if a decision is not made by the Department within 12 weeks (84 days) of making the application.
Tasmania - A decision must be made on a “permitted application” within 28 days of the application being received, this timeframe can be extended within that 28 days by a written agreement. A decision must be made on a “discretionary application” within 42 days of the application being received, which includes a 14 day public notification period. If an application has all the necessary information and a decision is not made in the timeframes, then the application is considered to be approved, although in those cases the applicant needs to appeal to the Appeal Tribunal for an order determining the conditions (if any) of the permit approval.
ACT - The statutory timeframes are 20 working days from date of lodgement for “code track” applications and 30 working days from date of lodgement for “merit” and “impact tracks” if no representations are received, and 45 working days from date of lodgement when representations are received.
Readers should keep in mind, that the above timeframes are also subject to the complexities of state and territory specific regulations, adding even more diversity between jurisdictions.
If Victoria was able to pick some of the best bits from other states and territories, to assist permit applicants, here’s a bit of a wish-list of what we could learn:
Addition of ‘deemed to be approved’ provisions for applications that meet specific criteria
More ‘streams/types’ of applications (similar to our VicSmart system) that provide for shorter timeframes and/or more confined considerations
Reconsideration of the ‘clock-stoppers’ that currently unreasonably elongate decision timeframes
Increased delegation from Councillors and/or more frequent Council meetings to determine applications
More significant consequences for authorities that take too long to determine applications
‘Deemed to be approved’ provisions for applications that extend beyond the statutory timeframe
Ahhh, it’s nice to dream…
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd
Phone: 03 9370 9599
Email: enquiries@clause1.com.au
Web: www.clause1.com.au
As most readers will be aware, when Council requests further information in relation to your planning permit application, they will specify a lapse date by which time the information must be provided. If the information is not provided then the application will lapse. Council can only specify a lapse date if they make a request within 5 business days after receiving a VicSmart application or 28 days after receiving any other application. Applicants are able to request an extension to the time frame in writing. Recent cases before the Victorian Civil and Administrative Tribunal (the Tribunal) have considered when applications lapse, the provision of information by applicants and requests for extensions of time.
In Direct Planning v Moreland CC [2018] VCAT 1770 a planning permit applicant appealed Council’s decision to refuse to extend the lapse date on a request for further information (RFI).
Pursuant to Regulation 34(2) of the Planning and Environment Regulations 2015 (the Regulations) an appeal against Council’s refusal to extend the lapse date of a RFI must be made before the last of:
the lapse date specified in the RFI
the new lapse date set out in any time extension
if the permit applicant has made an application to the Tribunal under section 78(b) of the Act in respect of a requirement for more information and the Tribunal has confirmed or changed the requirement, the new lapse date determined by the Tribunal under section 85(3) of the Act.
In the above case Council had set an RFI lapse date of 18 July 2018. Further information was hand delivered to the Council on 18 July 2018 including a letter with a paragraph seeking an extension, if required. That request is a common response provided with the return of the RFI as insurance, in case Council determines the information provided is not sufficient. However, because that request to extend the lapse date was made on the lapse date (18 July 2018) and not before the lapse date, it was not a valid request.
Council then advised that the information provided to Council was not to their satisfaction and because the request to extend the RFI lapse date was not provided before the lapse date, the application had lapsed.
The Tribunal agreed that the request to extend the lapse date was made too late. However, notwithstanding that Council thought the RFI response was deficient, the Tribunal found that because the applicant had provided further information on the lapse date, the application had not lapsed.
One conclusion which might be drawn from this Tribunal decision is that even if the RFI response is ‘not complete’, providing it is made on time, the application does not lapse.
This conclusion appears to be in contrast to how most Councils have been implementing Section 54B of the Act that states:
(1) An application for a permit lapses if the information required under section 54(1) within the prescribed time under that section … is not given by the final lapse date for the application. [our emphasis]
It has been generally accepted that Section 54B refers to ‘all’ of the information requested. However, the Tribunal’s decision (above) appears to suggest that not ‘all’ material must be provided in order to keep your application alive.
In light of the above, we would advise permit applicants to:
Continue to apply for an extensions of lapse dates before the specified lapse date;
Continue to include a cover-all request to extend the lapse date, should Council not be satisfied with the material supplied, as part of your RFI response before the lapse date;
Take note of the above case. It will be useful if Council seeks to lapse your application on the grounds that you provided insufficient or unsatisfactory information in your RFI response.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
Copyright
If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd
Phone: 03 9370 9599
Fax: 03 9370 9499
Email: enquiries@clause1.com.au
Web: www.clause1.com.au
