Zone Changes for Forever

Regular readers of BDAV News will be aware despite the fanfare surrounding the  introduction of the three new residential zones back in July 2014, many Councils are yet to make a full transition from interim ‘neutral conversion’ (General Residential Zone) to their preferred zones and schedules.

As a result, many applicants have found potential development sites are in limbo while the application of proposed zones is considered by the RZSAC or Council’s commence their second round of zone changes.

Two Councils whose proposed zoning provisions are being considered by RZSAC this month are the Cities of Brimbank and Whitehorse. Each Council has prepared its own software which allows developers to search by address to determine the proposed zoning and schedule controls to be applied to each residential site within the municipality. Clause: 1 applauds this degree of transparency and the ease of access in obtaining this information.

Industry professionals who have kept an eye on the zoning controls will not be surprised to hear that both municipalities would like to apply the Neighbourhood Residential Zone very broadly, and with many variations to Clause 55 contained in the corresponding schedules. Some of the more imaginative variations proposed to Rescode include;

  • Landscaping B13: A minimum of 2 medium sized trees of 6-12 metres     (at maturity) should be provided in the front setback. Development should provide for the replacement of any significant trees that have been removed in the 3 years prior to the application being made.
  • Site Coverage B8: Maximum 40%
  • Permeability B9: Minimum 40%
  • Side and rear setbacks B17: Minimum 5 m setback from the rear     boundary. No walls are to be constructed on boundaries.

Not all of these restrictions have been applied on all sites proposed to be included within the NRZ, however it is clear that the extent of a site’s developability will be significantly decreased as a result of the introduction of schedules proposing these kinds of restrictions. Although as with current Rescode standards, Councils do have the ability to vary numeric requirements, it is not anticipated that significant variations can be relied upon, even in areas where existing neighbourhood character differs from the newly imposed schedule requirements.

Don’t forget that these restrictions are in addition to the maximum mandatory 8 m height and maximum two dwelling restrictions already applied by the NRZ in many instances.

Building designers faced with attempting to design within these constraints should make it clear to their clients that these new restrictions may make certain types of developments unfeasible. Unfortunately, historic examples in the wider area of similar developments may not be enough to convince Councils of the merits of a particular proposal.

Designers should also be aware of the additional inherent restrictions placed on development by schedules to a zone. For example, the requirement to accommodate two 6 – 12 metre high trees in the front yard is likely to inform Council’s expectations for front setback requirements and the number of driveways permitted on a regular lot even though Standards relating to these matters have not been varied by the schedule.

Although submissions for both Brimbank and Whitehorse’s proposed zones have closed, designers should keep abreast of other changes in municipalities they work with, and ideally make a submission outlining what impact these changes will have on the ability to develop land.

Update on P&E Regulation Changes

In 2014 the Victorian Government commenced a review of the Planning and Environment Regulations.  The regulations are an important part of the planning regime in Victoria and govern a number of activities, processes and timeframes relating to the processing and determining of planning permit applications and appeals.

After reviewing initial submissions made by industry bodies and other interested parties the Department has release a discussion paper and draft changes for additional comment. Unfortunately the opportunity for further comment closed on 27th March.

The areas of most interest to regular permit applicants within the discussion paper and a summary of the draft changes are provided below:

Making an application

The report confirms that Councils are seeking to have more info ‘required’ as part of an application and are lobbying for the ability to refuse to accept an application if such information is not provided. The department appears to agree in principle that some additional information, such as a copy of restrictive covenants and plans, is potentially warranted – however it does not recommend changes to this affect.

Rather it notes a legislative change (not a change to the Regulations) would need to occur to allow this to happen. It also notes that if Council can refuse to accept a planning permit application then a right of appeal for applicants must also be established. No change is currently proposed to the regulations – however applicants are encouraged to ‘watch this space’. It is considered that Councils will continue to push for this change.

Requests for Further Information

The report discusses time frames in which Council can make a RFI (currently 28 days) and stop the statutory clock.  A number of Council’s and the MAV have sought to have this timeframe elongated. However, applicants have sought to have it reduced.

The department has agreed that a shorter time (21 days) is more appropriate for the majority of applications.

The draft changes to the Regulation differentiate between applications that require external referrals (such as VicRoads and Melb Water) and those that don’t. It is currently proposed to:

  • Decrease the prescribed time in which Council can make a RFI and stop the statutory clock from 28 to 21 days for applications that do not require external referrals;
  • Make no change to the 28 day requirement for more complex applications that do require external referrals.

This is undoubtedly a small win for permit applicants.

Referral process

The discussion paper reviews options to improve the efficiencies of the referral procedure. However, no changes to the currently regulations are proposed.

Applications for Review

The paper discusses timeframes relating to appeal rights, the statutory clock and other related procedural issues. Council submissions seek to enlongate the (60 day) failure to determine timeframe that triggers the permit applicant’s appeal rights. However, the department concludes that the existing 60 day timeframe is appropriate.

The department is also contemplating including a specific date on the Notice of Decision that will inform the objectors and permit applicant of the ‘exact date’ by which they must lodge any appeal to VCAT.  Currently the permit applicant has 60 days and objectors 21 days to lodge any appeal – however the actual calculation (by VCAT) of these days will normally be extended by 2-3 days for postage. It is considered that specifying and ‘exact date’ will provide more clarity for all parties.

Planning Scheme Amendments

This section of the paper recommends small changes be made to the regulations to allow Council’s to more easily rectify inconsequential errors, omissions and grammatical changes to their planning schemes.

Planning Documents

The paper discusses prescribed forms, privacy and electronic communication and concludes that:

  • An additional form relating to Sec 173 agreements should be included into the Regs.
  • An additional statement outlining how submitted material will be treated is to be included on a number of common documents to better inform participants of privacy issues.

Although the above draft outcomes will not revolutionise the planning process, it is encouraging to see that the Department has not succumb to pressure from Councils to elongate timeframes and further  increase the burden on permit applicants to provide unnecessary information.

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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