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.
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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Web: www.clause1.com.au
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.
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
Fax: 03 9370 9499
Email: enquiries@clause1.com.au
Web: www.clause1.com.au
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.
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
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.
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.
New Widespread Tree Removal Triggers Across Victoria
Planning Scheme Amendment VC289 came into force on 15 September 2025. The amendment creates a new Clause 52.37 (Canopy Trees) provision, which introduces a new planning permit trigger to remove, destroy or lop ‘canopy trees’ in most residential zones, right across Victoria.
There are a number of exemptions that apply. However, permit applicants should be aware of the significant impact this latest amendment may have on your applications.
Existing Applications
The transitional provisions, at Clause 52.37-9, confirm (among other things) that the new requirements do not apply to removal, destruction or lopping of a canopy tree associated with the construction of a building or the construction or carrying out works in accordance with a permit, if the application for that permit was made before 15 September 2025.
Our reading of this exemption is that your existing permit applications, lodged prior to 15 September 2025 are exempt. However, practitioners should be aware that any amendment to your application(s) under s.50, S50A or s.57A will reset the statutory-clock and enliven the new requirements of Clause 52.37.
New Applications
The new Clause 52.37 will apply to applications or amendments to applications lodged after 15 September 2025. When preparing new applications, practitioners should be aware:
Clause 52.37 defines a ‘canopy tree’ as being:
Greater than 5 meters in height and
Having a trunk circumference of greater than 0.5 meters and
Having a canopy diameter of at least 4 meters.
The provision makes an important distinction between ‘boundary canopy trees’ and regular ‘canopy trees’, with ‘boundary canopy trees’ being defined as:
A canopy tree (as defined above) within:
6 meters of the narrowest street frontage of the lot; or
5 meters of the rear boundary of the lot
A planning permit is required under clause 52.37-2 to remove, destroy or lop a canopy tree in the Mixed Use Zone, Township Zone, Residential Growth Zone, General Residential Zone, Neighbourhood Residential Zone, and Housing Choice and Transport Zone.
However, no permit is triggered if one of the following three permit-exemptions apply:
Ifthe table of exemptions contained at Clause 52.37-8 specifically states that a permit is not required.
This table includes scaled-down exemptions like those contained within Clause 52.17 (Native Vegetation) and is likely to be of limited assistance to most applications. It does, however, exempt pruning of up to 1/3 of the foliage of a canopy tree for maintenance only, provided it is not the trunk that is pruned and that the pruning does not reduce the tree height to less than 5 metres or the canopy diameter to less than 4 metres.
The removal, destruction or lopping of a canopy tree (other than a boundary canopy tree) identified for assessment in an application to which clause 54, 55, 57 or 58 applies and the tree is not removed, destroyed or lopped until the permit is issued.
Our reading of this second permit-exemption is that a regular canopy tree identified in a planning permit application that requires an assessment under Clause 54, 55, 57 or 58 is exempt from the new Clause 52.37 requirements.
However, ‘boundary canopy trees’ do not benefit from this exemption and will require an application and assessment under Clause 52.37, if your application includes their removal, destruction or lopping.
The removal, destruction or lopping of a canopy tree (other than a boundary canopy tree) if the site is developed with an existing dwelling.
This third exemption once again removes regular canopy trees from net of Clause 52.37. However, the removal or lopping of ‘boundary canopy trees’, on regular single-dwelling-sites will trigger an application and assessment under Clause 52.37.
Application Process
Clause 52.37-6 spells out the information that must accompany an application to destroy, remove or lop a canopy tree under the new provision including DBH, height, canopy spread, and species of tree(s) to be removed or lopped as well as details of any new/replacement trees. We expect these information requirements will regularly require the involvement of qualified arborists to identify tree species and provide assessments on health and stability, where such characteristics are to be used as a justification for any removal or lopping.
Clause 52.37-3 outlines ‘Canopy Tree Requirements’ and specifies that the number of trees on site should meet the minimum canopy tree requirements in the table below. The requirements can be met by a combination of both new and existing canopy trees:
Practitioners should also note that all other permit triggers, relating to vegetation removal or lopping, contained within provisions like the Significant Vegetation Overlay, Environment Significance Overlay and Clause 52.17 (Native Vegetation) continue to independently apply.
It is also noteworthy that any application under the new Clause 52.37:
Is exempt from 3rd party notification and review rights;
Is a class of VicSmart Application, subject to Clause 71.06 and
Limits the extent of Council’s (and VCAT’s) considerations, pursuant to Clause 52.37-4
Final Word
We perceive the largest burden the new requirements will pose for permit applicants is the new requirement to seek planning permission to remove ‘boundary canopy trees’, within 6m and 4.5m of the site frontage front and rear setbacks, respectively, as part of your multi-dwelling or single-dwelling-extension applications.
Like all new provisions, these will take some time for all stakeholders to get their heads around the changes. If you would like to discuss these new provisions in more detail please do not hesitate to contact our office.
The Victorian State Government has announced changes to all planning schemes that provide new fast track approval pathways for dual-occupancy developments and two lot subdivisions. The new provisions, as part of planning scheme amendment VC288, come into effect on 16th of October 2025.
Full details of the changes can be downloaded here.
The following provides practitioners with a summary of the changes most likely to be relevant to your dual-occ applications.
The changes will allow most 2 lot subdivisions and dual-occupancy developments to be assessed under the VicSmart pathway. Regular applicants will be aware that the VicSmart pathway provides for a ten-day statutory decision making time frame, removes requirements for public notification, removes third party appeal rights and significantly reduces the ambit of Council’s discretion when assessing applications.
Land Affected by the Changes
The changes affect the land within the following 6 residential zones across Victoria:
General Residential Zone
Neighbourhood Residential Zone
Residential Growth Zone
Housing Choice and Transport Zone
Mixed Use Zone
Township Zone
Application Criteria for Faster (VicSmart) Approvals
The following provides a summary of what will be required to qualify for the VicSmart pathway for any application associated with the construction/alteration of two dwellings on a lot and an application to subdivide land into two lots, in one of the above zones.
Construction of Two Dwellings on a Lot
An application associated with development of two dwellings on a lot will generally qualify as a VicSmart application if all of the following are met:
All permit triggers associated with the application fall within the VicSmart pathway
Nothing authorised by the grant of a permit would result in a breach of a restrictive covenant
Any relevant ‘Referral Authority’ has granted its blessing in the 3 months prior to the application being made
The following 13 Standards of Clause 55 are met:
Clause 55.02-1 Street setback
Clause 55.02-2 Building height
Clause 55.02-3 Side and rear setbacks
Clause 55.02-4 Walls on boundaries
Clause 55.02-5 Site coverage
Clause 55.02-6 Access
Clause 55.02-7 Tree canopy
Clause 55.02-8 Front fences
Clause 55.04-1 Daylight to existing windows
Clause 55.04-2 Existing north-facing windows
Clause 55.04-3 Overshadowing secluded open space
Clause 55.04-4 Overlooking
Clause 55.05-2 Overshadowing domestic solar
Subdivision
An application associated with the subdivision of land into two lots will generally qualify as a VicSmart application, in the above zones, under Amendment VC288, when all of the following are met:
A permit has been granted for the construction of two dwellings on the lot; or such a permit is issued concurrently with the subdivision approval; or each lot contains one existing dwelling; or the application creates vacant lots for residential development
If the land is 0.4 hectares or more, the land must not contain native vegetation
The land is not located in an Environmental Audit Overlay, Neighbourhood Character Overlay or an area that is a designated bushfire prone area as determined under section 192A of the Building Act 1993
All permit triggers associated with the application fall within the VicSmart pathway and other Clause 71.06 criteria are met
Nothing authorised by the grant of a permit would result in a breach of a restrictive covenant
Any relevant ‘Referral Authority’ has granted its blessing in the 3 months prior to the application being made
It is also noteworthy that the following overlays now include (or have expanded) VicSmart pathways for two lot subdivisions. This means an application under one of the above residential zones, when a permit is also triggered under the following overlays, may still qualify as a VicSmart application, for subdivision into two lots:
Clause 42.01 Environmental Significance Overlay
Clause 43.01 Heritage Overlay
Clause 43.02 Design and Development Overlay
Clause 43.06 Built Form Overlay
Clause 44.05 Special Building Overlay
How Applications will be Assessed by Council
The following provides a summary of what is generally relevant to Council’s assessment of your applications, under the new VicSmart pathway contained within the above residential zones, for dual-occupancy developments and two lot subdivisions:
Construction of Two Dwellings on a Lot
When assessing an application associated with the construction or alteration of two dwellings on a lot, under the VicSmart pathway contained in the zone, the responsible authority must only consider:
Mandatory height controls and Garden Area requirements, where contained in the zone (see Cl71.06-2)
All Standards of the new codified Clause 55 and associated Objectives, where relevant (see Cl71.06-2)
The public open space requirements in clause 53.01 or clause 43.06-8 or a schedule to those clauses.
Subdivision
When assessing an application associated with the subdivision of land into two lots, under the VicSmart pathway contained in the above residential zones, there are separate tests for applications that create vacant lots and applications that subdivided lots containing existing dwellings.
For subdivision applications that create at least one vacant lot, the Responsible Authority must only consider:
The objectives and standards in the following clauses:
Clause 56.04-2 Lot area and building envelopes objective
Clause 56.04-5 Common area objective
Clause 56.06-8 Lot access objective
Clause 56.07-4 Stormwater management objective
The public open space requirements in clause 53.01or clause 43.06-8 or any schedule to those clauses
The area and dimensions of each lot in the subdivision
The suitability of the land for subdivision
The provision of private open space, car parking and access for a lot containing an existing dwelling proposed to be retained
The location, dimensions and gradient of proposed vehicle access
The effect of development on the use or development of other land which has a common means of drainage
The provision of off-street parking
The provision and location of common property
The effect on the environment, human health and amenity of the area
The degree of flood or erosion associated with the location of the land and the use, development or management of the land so as to minimise any such hazard
In addition, we note that the number of Clause 56 tests relevant to any application to subdivide land into two lots (which creates a vacant lot) has been reduced by Amendment VC288, be it a VicSmart application or not (see Table at 32.08-3, for example).
For subdivision applications which create one lot per dwelling, for existing or approved dwellings (and do not create a vacant lot), the decision guidelines and assessment criteria of Clause 59.02 (Subdivision for Buildings & Car Parking Spaces) remain unchanged and will continue to apply.
Closing
As with all planning scheme changes – there is some devil in the detail. However, the new VicSmart pathway for dual-occupancies and two lot subdivisions has the ability to significantly reduce the time and cost associated with these types of planning approvals. Practitioners should look to utilise this new pathway whenever possible, noting that the new provisions come into effect on 16th October 2025.
Importantly, for the VicSmart provisions to apply permit applications must be lodged under the VicSmart pathway. Practitioners should be aware that it is up to the permit applicant to lodge their application(s) under the VicSmart pathway. If the application is not lodged under the VicSmart pathway, public notification, objector appeal rights, longer processing times and a wider ambit to Council’s decision (including wider neighbourhood character considerations) will remain relevant to your applications.
If you require additional information regarding your current or future projects please don’t hesitate to contact our office.
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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
Email: enquiries@clause1.com.au
Web: www.clause1.com.au
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New Widespread Tree Removal Triggers Across Victoria
Planning Scheme Amendment VC289 came into force on 15 September 2025. The amendment creates a new Clause 52.37 (Canopy Trees) provision, which introduces a new planning permit trigger to remove, destroy or lop ‘canopy trees’ in most residential zones, right across Victoria.
There are a number of exemptions that apply. However, permit applicants should be aware of the significant impact this latest amendment may have on your applications.
Existing Applications
The transitional provisions, at Clause 52.37-9, confirm (among other things) that the new requirements do not apply to removal, destruction or lopping of a canopy tree associated with the construction of a building or the construction or carrying out works in accordance with a permit, if the application for that permit was made before 15 September 2025.
Our reading of this exemption is that your existing permit applications, lodged prior to 15September 2025 are exempt. However, practitioners should be aware that any amendment to your application(s) under s.50, S50A or s.57A will reset the statutory-clock and enliven the new requirements of Clause 52.37.
New Applications
The new Clause 52.37 will apply to applications or amendments to applications lodged after 15 September 2025. When preparing new applications, practitioners should be aware:
Clause 52.37 defines a ‘canopy tree’ as being:
Greater than 5 meters in height and
Having a trunk circumference of greater than 0.5 meters and
Having a canopy diameter of at least 4 meters.
The provision makes an important distinction between ‘boundary canopy trees’ and regular ‘canopy trees’, with ‘boundary canopy trees’ being defined as:
A canopy tree (as defined above) within:
6 meters of the narrowest street frontage of the lot; or
4.5 meters of the rear boundary of the lot
A planning permit is required under clause 52.37-2 to remove, destroy or lop a canopy tree in the Mixed Use Zone, Township Zone, Residential Growth Zone, General Residential Zone, Neighbourhood Residential Zone, and Housing Choice and Transport Zone.
However, no permit is triggered if one of the following three permit-exemptions apply:
Ifthe table of exemptions contained at Clause 52.37-8 specifically states that a permit is not required.
This table includes scaled-down exemptions like those contained within Clause 52.17 (Native Vegetation) and is likely to be of limited assistance to most applications. It does, however, exempt pruning of up to 1/3 of the foliage of a canopy tree for maintenance only, provided it is not the trunk that is pruned and that the pruning does not reduce the tree height to less than 5 metres or the canopy diameter to less than 4 metres.
2. The removal, destruction or lopping of a canopy tree (other than a boundary canopy tree) identified for assessment in an application to which clause 54, 55, 57 or 58 applies and the tree is not removed, destroyed or lopped until the permit is issued.
Our reading of this second permit-exemption is that a regular canopy tree identified in a planning permit application that requires an assessment under Clause 54, 55, 57 or 58 is exempt from the new Clause 52.37 requirements.
However, ‘boundary canopy trees’ do not benefit from this exemption and will require an application and assessment under Clause 52.37, if your application includes their removal, destruction or lopping.
3. The removal, destruction or lopping of a canopy tree (other than a boundary canopy tree) if the site is developed with an existing dwelling.
This third exemption once again removes regular canopy trees from net of Clause 52.37. However, the removal or lopping of ‘boundary canopy trees’, on regular single-dwelling-sites will trigger an application and assessment under Clause 52.37.
Application Process
Clause 52.37-6 spells out the information that must accompany an application to destroy, remove or lop a canopy tree under the new provision including; DBH, height, canopy spread, and species of tree(s) to be removed or lopped as well as details of any new/replacement trees. We expect these information requirements will regularly require the involvement of qualified arborists to identify tree species and provide assessments on health and stability, where such characteristics are to be used as a justification for any removal or lopping.
Clause 52.37-3 outlines ‘Canopy Tree Requirements’ and specifies that the number of trees on site should meet the minimum canopy tree requirements in the table below. The requirements can be met by a combination of both new and existing canopy trees:
Practitioners should also note that all other permit triggers, relating to vegetation removal or lopping, contained within provisions like the Significant Vegetation Overlay, Environment Significance Overlay and Clause 52.17 (Native Vegetation) continue to independently apply.
It is also noteworthy that any application under the new Clause 52.37:
Is exempt from 3rd party notification and review rights;
Is a class of VicSmart Application, subject to Clause 71.06 and
Limits the extent of Council’s (and VCAT’s) considerations, pursuant to Clause 52.37-4
Final Word
We perceive the largest burden the new requirements will pose for permit applicants is the new requirement to seek planning permission to remove ‘boundary canopy trees’, within 6m and 4.5m of the site frontage front and rear setbacks, respectively, as part of your multi-dwelling or single-dwelling-extension applications.
Like all new provisions, these will take some time for all stakeholders to get their heads around the changes. If you would like to discuss these new provisions in more detail please do not hesitate to contact our office.
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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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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.
Subscribe to receive regular updates on planning issues relevant to Victorian planning permit applicants here.
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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.
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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.
Subscribe to receive regular updates on planning issues relevant to Victorian planning permit applicants here.
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.
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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 then the standard permit assessment pathway (non-VicSmart) is likely to apply. However, some exemptions exist within the Heritage Overlay. 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.
Subscribe to receive regular updates on planning issues relevant to Victorian planning permit applicants here.
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
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Web: www.clause1.com.au
