Both State and Local planning policy can have significant influence on the outcome of a planning permit application, even in circumstances where the relevant planning permit triggers under the zones, overlays or Particular Provisions do not bring such issues to the attention of applicants. These hidden controls add frustrating elements of uncertainty into the planning system that often catch applicants and Councils unawares.
Last month we reported on Planning Scheme Amendment VC140 which introduced bushfire policy changes into the Victorian Planning Provisions. Among other things, VC140 introduced new information and design requirements which apply to planning permit applications, even if the subject site is not affected by a Bushfire Management Overlay.
The flood policy in the State Planning Policy Framework operates in a similar hidden fashion and can have a significant bearing on the outcome of planning permit applications, even on land not affected by flooding related overlays.
In both instances, permit applicants are required to be aware of the potential significant impact the VPPs can have on their applications, despite no relevant Overlay or other controls being present on the DELWP Property Planning Report.
A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) illustrates the perils of these hidden controls. In Monahan v Strathbogie SC [2018] VCAT 921 the permit applicant sought the subdivision of land into 5 lots, in the General Residential Zone (GRZ). No planning overlays affect the site. A basic Property Report and Planning Property Report raises no significant issues. The site is located within the established urban context of a small township, surrounded by dwellings and within 150m of the town centre.
As a result of public notification of the application, the local catchment management authority (CMA) lodged an objection to the application, on the basis that the land was part of a depression they had designated as a waterway under the Water Act 1989. The CMA submitted that in times of even moderate flood, the waterway would act as a regional flood conveyance channel and the development of the land would negatively impact on the wider drainage and water conveyance within the area.
The Council recommended refusal of the permit application on grounds relating to flooding and drainage.
Clause 13.02-1 of the State Planning Policy Framework, titled Floodplain Management includes the objective of:
To assist the protection of:
- Life, property and community infrastructure from flood hazard.
- The natural flood carrying capacity of rivers, streams and floodways.
- The flood storage function of floodplains and waterways.
- Floodplain areas of environmental significance or of importance to river health.
The policy includes strategies and policy guidelines to achieve these objectives, including (inter alia):
Avoid intensifying the impacts of flooding through inappropriately located uses and developments.
Clause 14.02-1 of the State Planning Policy Network, titled Catchment planning and management includes:
Objective
To assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the marine environment.
Strategies include (inter alia):
Retain natural drainage corridors with vegetated buffer zones at least 30m wide along each side of a waterway to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from adjacent land uses.
Undertake measures to minimise the quantity and retard the flow of stormwater runoff from developed areas.
Ensure planning is coordinated with the activities of catchment management authorities.
The policy guidelines require the consideration of (inter alia):
- Any relevant regional river health program, river and wetland restoration plans or waterway and wetland management works programs approved by a catchment management authority.
- Any regional catchment strategies approved under the Catchment and Land Protection Act 1994 and any associated implementation plan or strategy including any regional river health and wetland strategies.
We also note Clause 65 of the Planning Scheme, which includes general decision guidelines which include, for subdivision:
- The effect of development on the use or development of other land which has a common means of drainage.
In the Monahan case, the CMA had been finalising extensive flood modelling studies, at the same time as the subdivision proposal was being processed by Council. One intent of the modelling was to establish appropriate flood levels to translate into a Floodway Zone, Special Building Overlay or Land Subject to Inundation Overlay, which would then inform land owners and permit applicants of such issues.
In Mo
nahan, while the Tribunal found that planning policy provided support for an increase in housing density at the subject site and no overlay controls raised potential inundation issues, other policy weighed heavily against the proposal, noting:
The lack of such controls however does not overcome the fact that the policy context ….. clearly identifies the importance of dealing with flooding and drainage issues before land is developed. In the face of such policy it would be inappropriate to set aside the issues and facts that the subject land is subject to a significant flood risk and its development would impact on the local and wider flood drainage and conveyance capacity within Nagambie.
In summary, the Tribunal believed the application to be premature, and would be until a town-wide response was prepared, noting:
….what [the applicant’s] position fails to acknowledge is the critical role that the designated waterway that passes through his property may have in developing such a response. To allow development of this land given this situation could well prejudice the orderly development of a future town-wide response to these projected change in flood hazards.
Applicants should be aware that in the absence of planning controls or mapping alerting owners to the potential of flooding – State Policies and other more hidden provisions can form significant additional layers of complexity and uncertainty.
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