A Year In Review

The last 12 months has seen a number of significant changes in planning and a number of interesting VCAT decisions which inform our practice. We have put together a brief summary of the main items reported in Planning Tid Bits over 2014.

January – Clause 52.17 Native Vegetation provisions were reviewed in amendment VC105, affecting all planning schemes, placing greater emphasis on the contribution to the State’s biodiversity from native vegetation. The focus within the provisions changed from “net gain” to “no net loss”.

In Mason v Greater Geelong CC (Red Dot) [2013] VCAT 2057 the Tribunal found that regulatory standards need to be applied as the Tribunal finds them, and that VCAT is not the appropriate vehicle to seek to have widely held standards reviewed or varied.

New residential zones were implemented in Campaspe, Greater Bendigo, Swan Hill.

February – In Mornington Peninsula SC v Peninsula Garden Supplies & Earth Moving Pty Ltd [2013] VCAT 2116 the Tribunal commended the Council for employing an unmanned drone to undertake a survey of land that Council alleged was being used for the transfer and storage of recycling and refuse.

March – Water Sensitive Urban Design (WSUD) provisions in the planning schemes for Cities of Yarra, Stonnington, Melbourne, Moonee Valley and Port Phillip were approved. From 13 March 2014 these planning schemes require a “Water Sensitive Design Response” to be submitted with planning permit applications for a new building, extensions greater than 50m2 or subdivisions within a commercial zone.

April – State Planning Scheme amendment VC111 amends the planning schemes which have applied the Urban Growth zone, where no precinct structure plan applies. The changes generally reduce restrictions on extending dwellings and farm buildings, remove prohibition and limitations on numerous land uses, so that the Urban Growth zone provisions (where no structure plan applies) are more consistent with the reformed Farming Zone.

May – State Planning Scheme amendment VC106 changed all planning schemes to recognise Plan Melbourne and Victoria’s regional growth plans. The changes deleted reference to Melbourne 2030, the Activity Centres and Principal Public Transport Network Plan, 2010 and Ready for Tomorrow – a Blueprint for Regional and Rural Victoria.

We provided an update on the introduction of new residential zones and the Ministerial interventions used to “fast-track” the amendments to make the new zones operational.

June – We reported on the VCAT decision Box v Moreland CC [2014] VCAT 246 in which the Tribunal reinforced the principle that; conditions contained on a planning permit continue to have effect even if, after development and subdivision, a new proposal to extend a building does not trigger a permit. The Tribunal noted ….matters such as fences, landscaping and other elements of the development shown on the endorsed plans may not be changed without the consent of the responsible authority even though they may not otherwise require a permit under the planning scheme.

New residential zones implemented in Alpine, Bass Coast, Baw Baw, Bayside, Benalla, Boroondara, Casey, Central Goldfields, Colac Otway, Corangamite, East Gippsland, Gannawarra, Glenelg, Golden Plains, Hepburn, Hindmarsh, Hobsons Bay, Horsham, Hume, Indigo, Macedon Ranges, Manningham, Mansfield, Maroondah, Melbourne, Mildura, Mitchell, Moira, Monash, Mount Alexander, Moyne, Murrindindi, Northern Grampians, Pyrenees, Queenscliffe, South Gippsland, Southern Grampians, Strathbogie, Surf Coast, Towong, Wangaratta, Warrnambool, Wellington, Wodonga, Wyndham, Yarra Ranges, Yarriambiack.

July – We provided an update on the implementation of the new zones, and an amendment to the VCAT Act which allows the Tribunal to invite the original decision maker (usually Council) to reconsider their decision at any point during a proceeding. New VCAT fees were introduced on 1 July with fees increasing.

The General Residential Zone was implemented by State planning scheme amendment VC116 (the “neutral conversion” of previous Residential 1, 2 and 3 zones to the General Residential zone) in Ararat, Ballarat, Banyule, Brimbank, Cardinia, Darebin, Frankston, Greater Geelong, Greater Shepparton, Kingston, Knox, LaTrobe, Maribyrnong, Melton (plus municipal-specific amendment C157), Moonee Valley, Moorabool, Moreland, Mornington Peninsula, Nillumbik (plus municipal-specific amendment C87), Port Phillip, Southern Grampians, Stonnington, Whitehorse, Whittlesea, Yarra. The new zone was implemented for Councils who had not already made their new residential zones operational.

August  – We reported on VCAT decisions relating to the overshadowing of neighbours’ solar panels, the Tribunal finding in Buckerfield Architects v Stonnington CC [2014] VCAT 2014 that it will support (in appropriate circumstances) proposals that result in significant impacts to neighbouring solar panels on sites that have strong policy support for increased building heights (such as within activity centres).  

September – we reported on the VCAT case Samsons (Shoobra) Pty Ltd v Glen Eira CC [2014] VCAT P235 where the Tribunal found that an amendment made to a planning permit application after the implementation of the new residential zones, where the application was lodged before the new residential zones were operational, resets the start date of the application and therefore makes the transitional provisions void, and therefore can prohibit an application.

We also discussed briefing for Cultural Heritage Management Plans (CHMPs), as a result of Tribunal findings in Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot) [2014] VCAT 826. It is critical that your CHMP expressly articulates the flexability required to allow for expected (and unexpected) changes to the proposed activity/development, otherwise you may need to prepare a new CHMP if your proposal changes.

One of the more significant changes to the planning system, the introduction of VicSmart, was introduced by the State government to fast-track “smaller” types of applications, with a 10-business day processing time and no public notification. Councils have had to come up to speed quickly to accommodate VicSmart applications with their procedures.

In September the State Government also amended the Victorian Planning Provisions by introducing Clause 52.43 Live Music and Entertainment Noise. The thrust of this new provision is to place the responsibility of addressing noise issues on the “agent of change”, whether that is a new venue or new sensitive residential use within 50 metres of an existing venue.

October – Tribunal processes for informing applicants of the close of appeal periods for a Notice of Decision (NOD) now place the responsibility of checking timeframes on Council. The Tribunal has set up a webpage listing which applications have had appeals lodged. The Council will check this at day 23 (21 days plus 2 days for mail) and issue a permit if no appeals lodged.

In this issue we also provided our opinion on applying for an extension of time for a permit where new residential zones are operating, and how the new zone might affect the chances of an extension of time to commence or complete a use, development or subdivision, particularly where a site is now in the Neighbourhood Residential zone with mandatory height limits and dwelling numbers.

Alterations to new residential zones were implemented in Ararat, Ballarat, Boroondara, Brimbank, Cardinia, Darebin, Greater Shepparton, Kingston, LaTrobe, Moorabool, Mornington Peninsula, Southern Grampians, Whitehorse, Whittlesea.

November – The VCAT Amendment Act brought about an interesting change, where the application fee for a permit applicant’s appeal to VCAT for ‘failure to determine’ may now need to be paid by Council, at the direction of the Tribunal, unless the Council can satisfy the Tribunal that no such order should be made having regard to the factors set out in Section 115CA of the Victorian Civil and Administrative Tribunal Act 1998. It is a change in focus requiring Councils to become more accountable for their processing times.

Alterations to new residential zones were implemented in Brimbank.

December – May Santa will stuff your stocking with permits, amendments and extensions of time for Christmas.


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