Short Changed. New Residential Zones – Transitional Provisions

BDAV Members will be aware that the recently introduced Neighbourhood Residential, General Residential and Residential Growth Zones have already been implemented by Glen Eira City Council and will soon go ‘live’ in other municipalities.

These new residential zones (introduced by Amendment VC100) are generally more restrictive than the existing Residential 1, 2 and 3 Zones.

So what are the transitional provisions and how will they affect projects currently on your drawing boards and projects lodged with Council but not yet determined at the time the new zones are introduced?

Projects on your Drawing board

For planning permit projects currently in the design development phase but not lodged at the time the new residential zones are introduced, there are currently no transitional provisions (even if those projects are substantially resolved).

It is Clause1’s view that if you have existing projects on the drawing board you should seek to lodge planning permit applications relating to those projects as soon as possible. Only once lodged is there any opportunity to utilise the existing (and potentially future) transitional provisions and avoid some of the more restrictive changes to the residential zones.

Applications lodged with Council

For planning permit applications already lodged with Council but not yet determined at the time the new residential zones are introduced there is good news and bad news.

The Good News

Amendment VC104 (August 2013) introduced the following limited State-wide transitional arrangements:

  • Applications lodged, but not yet decided, are not subject to the maximum number of dwellings and maximum height provisions contained within the Neighbourhood Residential Zone.
  • Previously approved development is not prohibited from being subdivided by the new Neighbourhood Residential Zone;
  • Clause 55 does not apply to an application to construct or extend a development of four or more storeys made before introduction of the new zones.

That’s the good news.

The Bad News

The above transitional arrangements are very limited. Regular readers will be aware of Clause1’s concerns relating to (what we called) significant changes to the stated ‘Purpose’ of the three new residential zones, most notably the significant increased protection of existing neighbourhood character.

Unfortunately, the limited transitional provisions contained in VC104 mean that even if your application was lodged with Council prior to the incorporation of the new zones (whilst the old Residential 1, 2 and 3 zones were in place) your application will now be assessed under the new zones (and their more protective Objectives).

This outcome is not what Clause:1 expected.

The State Government’s Advisory Note relating to the new residential zones, released in Aug 2013, states:

“Transitional: provisions have been introduced to ensure that existing permit applications for residential development and subdivision that have been lodged but not decided are not unfairly disadvantaged.” (Emphasis added)

Our office has discussed the issue of transitional provisions with a representative of Glen Eira City Council’s strategic planning department and they have confirmed that they too were expecting more substantial transitional provisions to be put in place. This is evidenced by their web site that currently states:

Applications lodged before Gazettal [Aug 23, 2013] will be assessed against the rules in force at the time of lodgement. (Emphasis added)

However, the capacity for applications lodged before the new zones were gazetted to be dealt with under the old residential zoning provisions has not been enacted. Glen Eira Council has indicated that they have no choice but to assess applications under the new residential zones regardless of when the application was lodged.

Clause1 remains hopeful that the ‘transitional provisions’ relating to the new residential zones will be beefed up to ensure applications lodged before the new zones come into play can be assessed under the old residential zones – but we are no holding our collective breaths.

Permit applicants need to be aware that to avoid the new restrictions in the Neighbourhood Residential Zone, (relating to building height, maximum number of dwellings) it is imperative that new planning permit applications are lodged to the relevant Council prior to that Council implementing the new zones within their respective planning scheme.

Knowing exactly when each Council will introduce the new residential zone into their planning scheme is anyone’s guess. The only certainty is that the changes will be incorporated by July 2014. We recommend that you contact (and stay in regularly communication) with the strategic planning department of Council for updates of their expected timeframes.