Recent reforms to Victoria’s Planning system Presented by David Vorchheimer 30 August 2013

 New Residential zones  Reformed Residential zones  New Commercial zones  Reformed Industrial zones  Changes to the Planning and Environment Act 1987 What we are covering

Planning Schemes:  set out objectives, policies and provisions in relation to the use, development and protection of land within an area.  have a single format across Victoria  are made up of:  State and local planning policies  Zone controls;  Overlay controls;  Particular provisions; and  General provisions. Background

 Zones set out the purpose and permit requirements for an area (e.g. residential, business, industrial)  Overlay controls deal with specific requirements across zones / areas (e.g. heritage, vegetation protection, significant landscapes, coastal protection) The changes only relate to zone controls. Background

 Announced on 11 July 2012  Changes are to affect all planning schemes across Victoria.  Proposed changes to residential, commercial and rural zones.  Residential zone changes announced on 5 March 2013;  Commercial and Industrial zones announced on 6 May 2013;  Rural zone changes were announced on 15 August 2013 and come into effect on 5 September 2013;  Implementation of the new Residential Zones commenced on 1 July 2013 and will be completed over a 12 month period, with DPCD providing assistance to Council's in the implementation; and  Implementation of the new Commercial and Industrial zones occurred on 15 July Potential adjustments to application of zones likely to occur over time. Zone reforms - Overview

Overview The changes encompass Deletion of 9 existing zones Creation of 5 new zones Amendment of 12 existing zones Residential 1 Zone Residential 2 Zone Residential 3 Zone Business 1 Zone Business 2 Zone Business 3 Zone Business 4 Zone Business 5 Zone Priority Development Zone Residential Growth Zone General Residential Zone Neighbourhood Residential Zone Commercial 1 Zone Commercial 2 Zone Low Density Residential Zone Mixed Use Zone Township Zone Rural Living Zone Green Wedge Zone Green Wedge A Zone Rural Conservation Zone Farming Zone Rural Activity Zone Industrial 1 Zone Industrial 2 Zone Industrial 3 Zone

Residential Zones

Aim of Residential zone reforms  better manage growth and protect and maintain liveability and neighbourhood character.  simplify requirements with greater certainty and clearer rules  allow a broader range of activities to be considered 2

 The existing residential zones (Residential 1, 2 and 3) have been replaced with new Residential Zones (Neighbourhood Residential Zone (NRZ), General Residential Zone (GRZ) and Residential Growth Zone (RGZ)).  The existing Low Density Residential, Mixed Use and Township zones have been amended.  The three new residential zones provide for varying levels and intensities of residential development. Residential zones

The Residential zone reforms 3

Key features  The purpose of each new zone clearly defines the zone.  Multiple schedules allowed in each zone.  A maximum building height of a dwelling or residential building can be specified via a schedule (except for the LDRZ).  The operation of the ResCode provisions is maintained (except in the LDRZ), with additional amenity provisions included in the RGZ and MUZ to land abutting other residential zones.  Nine residential siting and amenity standards can be varied via the schedule to the zone (except for the LDRZ).  A planning permit threshold of 300m 2 to construct or extend one dwelling on a lot or as increased via a schedule where allowed (except for the LDRZ).  Application requirements, decision guidelines and other requirements can be specified via a schedule (except for the LDRZ).  Third party notice, objection and review rights in all zones for section 2 uses and buildings and works applications associated with a section 2 use. 5

 Less restrictions on non-residential land uses in the RGZ and MUZ (for food and drink premises, medical centre, office, place of worship, and shop).  Uses either prohibited or additional conditions included against uses in the GRZ and NRZ for convenience restaurant, food and drink premises, medical centre, office, place of worship, retail premises (including shop) and take away food premises.  Bed and breakfast allows for 10 persons as of right in all zones.  In the LDRZ the default minimum lot size for subdivision of land connected to reticulated sewerage has been decreased to 0.2 hectares.  Existing schedules to the LDRZ will continue to operate.  Objectives can be specified in a schedule to the MUZ to facilitate the use, development and redevelopment of land.  Existing schedules to the MUZ and TZ will be translated to the new schedules. Key features 6

Residential Growth Zone  To provide housing at increased densities in buildings up to and including four storey buildings.  To encourage a diversity of housing types in locations offering good access to services and transport including activities areas.  To encourage a scale of development that provides a transition between areas of more intensive use and development and areas of restricted housing growth.  To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations. The zone includes a discretionary default height limit of 13.5 metres which can be increased or decreased via a schedule for a mandatory height limit. 7

General Residential Zone  To encourage development that respects the neighbourhood character of the area.  To implement neighbourhood character policy and adopted neighbourhood character guidelines.  To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.  To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations. The zone does not include a default height limit but can stipulate a mandatory height via schedule. 8

Neighbourhood Residential Zone  To recognise areas of predominantly single and double storey residential development.  To limit opportunities for increased residential development.  To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.  To implement neighbourhood character policy and adopted neighbourhood character guidelines.  To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations. The zone includes a default mandatory maximum height of 8 metres which via a schedule can include a higher or lower mandatory height limit. No more than 2 dwellings are allowed on a lot unless a schedule specifies a higher or lower maximum number of dwellings. 9

Implementation of new residential zones  Councils are now going through a process of considering where the new zones are to be applied, having regard to existing strategic work, such as local housing strategies.  Councils are at varying stages in this process:  Implemented (Glen Eira City Council – 23 August 2013);  Councils with adopted housing strategies;  Councils with housing strategies being developed; and  Council with no housing strategy underway or proposed. 11

 Cannot translate all existing residential zones to new residential zones  Planning scheme amendments will need to be initiated by Councils to effect change  The three new residential zones were implemented into the VPP through a state- wide amendment and Ministerial Direction changes by 1 July  On 1 July 2013, the amended Mixed Use Zone, Township Zone and Low Density Residential Zone were incorporated into the VPP and individual planning schemes through Amendment V8 with existing schedules updated/amended (MUZ and TZ schedules are amended, LDRZ schedule remains as existing).  As on 1 July 2013, Councils can now initiate amendments, utilising the package of new residential zones for their municipality. The existing R1Z, R2Z and R3Z can no longer be used for amendments. Implementation of new residential zones 12

Zone selection principles New Residential Zone PurposeLikely application RGZ Enables new housing growth and diversity in appropriate locations In appropriate locations near activity areas, train stations and other areas suitable for increased housing activity GRZ Respects and preserves neighbourhood character while allowing moderate housing growth and diversity In most residential areas where moderate growth and diversity of housing that it is consistent with existing neighbourhood character is to be provided NRZ Restricts housing growth in areas identified for urban preservation In areas where single dwellings prevail and change is not identified, such as areas of recognised neighbourhood character, environmental or landscape significance Possible principles in applying zones Some principles can be deduced from the purposes of the zones (and should be considered together)  Locations offering good access to services, transport and other infrastructure  Areas which provide a transition between areas of more intensive use and development and areas of restricted housing growth  Areas with a diversity of housing stock, diversity of larger lots sizes and a more varied and eclectic neighbourhood character  Areas where modest housing growth and housing diversity is encouraged  Areas with a neighbourhood character that is sought to be retained  Areas with Neighbourhood Character Overlays  Residential areas with Heritage Overlays (such as larger heritage precincts, rather than individually recognised heritage sites)  Areas of identified environmental or landscape significance.  Areas which may not have good supporting transport infrastructure or other infrastructure, facilities and services and not likely to be improved in the medium to longer term 13

Zone selection criteria Potential criteria Applicable to Neighbourhood Residential Zone (low levels of residential change ) General Residential Zone (minimal to moderate levels of residential change) Residential Growth Zone (high levels of residential change) Character 1Neighbourhood character (evidence through HO, NCO, DDO, significant intactness) Yes No 2Emerging or preferred neighbourhood character (evidence with DDO) No Yes 3Existing Landscape Character (evidence through SLO, ESO, Local Policy) Yes No 4Risk associated with known hazard (evidenced through BMO, LSIO or EMO for fire, flood and landslip) HighLow 5Level of development activity (existing and desired) LowLow/moderateHigh 6Brownfield/urban renewal site/areaNo Yes 14

Potential criteria Applicable to Neighbourhood Residential Zone (low levels of residential change ) General Residential Zone (minimal to moderate levels of residential change) Residential Growth Zone (high levels of residential change) Strategic 7Housing and Development StrategyYesNoYes 8Identified in Activities Area structure plan/policyNo Yes 9Commercial or industrial land for redevelopment not in Activities Area (strategic justification for rezoning required) NoYes 10Access to employment optionsNo Yes Zone selection criteria 15 Context 11Good access to local shoppingNo Yes 12Good access to local community servicesNo Yes 13Good access to transport choicesNo Yes

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 Housing Strategy  MSS review / update  local policies  Matrix  Identified character elements to preserve (HO, NCO etc.)  Significant landscape / environment elements  Poor access to transport, infrastructure, services  tricked up schedule to GRZ v NRZ  Schedules to GRZ – mandatory v discretionary elements Where zones will be applied

Changes to Clause 55 do not apply to:  an application to construct or extend a development of four or more storeys made before the approval date of the planning scheme amendment in relation to a particular planning scheme; and  an application under section 69 of the Act to extend a permit to construct or extend a development of four or more storeys granted on or before the approval date of Amendment VC100. The limitation on number of dwellings and Maximum building height provisions in the NRZ do not apply to applications made before the approval date of the planning scheme amendment in relation to a particular planning scheme. Transition

Commercial and Industrial Zones

Aim of Commercial / Industrial zone reforms  provide greater flexibility and growth opportunities for Victoria’s commercial and business centres, responding to changing retail, commercial and housing markets by allowing for a wider range of uses that will support more mixed use employment.  support business investment and industry by responding to new and emerging trends regarding the mix of industry, office and some forms of limited retail, and provide greater incentive for business investment. 2

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Under the reforms:  In metropolitan areas the C1Z and C2Z do not have schedules, and there is no ability to set out different performance criteria;  The C1Z allows for accommodation, retail premises and office uses as of right, with buildings and works, and subdivision exempt from notice and appeal. No building heights are included in the C1Z; and  The C2Z allows for industry, warehouse and restricted retail uses as of right, and does not include floor area restrictions for office. Commercial zone reform

 removes permit requirements for:  all Accommodation (other than a Corrective institution)  all retail uses (except for Adult sex bookshop)  Exhibition centre  remove the conditions for Education centre and Office  broadens the range of activities that land can be used for without the need for a planning permit and generally removes floor area restrictions.  building and works and subdivisions continue to require a permit.  all floor space caps for shop and office have been removed for Melbourne metropolitan Councils but rural Councils have had existing schedules to the Business 1 and 2 zones migrated to a new Commercial 1 Zone schedule Commercial 1 Zone 4

 removes permit requirement for use for a Cinema, Cinema-based entertainment facility, Food and drink premises, Office, Restricted retail premises and Trade supplies;  prohibits accommodation (other than caretakers house, motel and residential hotel;  allows use for a small-scale supermarket (<1800m 2 ) and associated shops (<500m 2 ) without a permit in the Melbourne metropolitan area. Larger supermarkets and stand alone shops require a permit in the Melbourne metropolitan area (prohibited in rural municipalities);  building and works and subdivisions will continue to require a permit;  removes floor area restrictions for office and retail uses to create new opportunities for office and retail growth; and  provide greater opportunity for office and employment uses including commercial businesses, restricted retail premises, trade supplies and some limited retailing activities. Commercial 2 Zone 5

 supermarket and shops permitted in C1Z without a permit;  small scale supermarket of up to 1800m 2 permitted in C2Z without a permit in all metropolitan planning schemes. Supermarkets greater than 1800m 2 in C2Z require a permit;  small scale supermarket of 1800m 2 in C2Z in rural areas require a permit; and  supermarkets and associated shops must adjoin or have access to a main road in the C2Z.  removes restrictions on floor space caps in most instances in commercial zones in metropolitan Melbourne and in rural Victoria for the C2Z;  allows floor space caps to be specified in rural and regional Victoria in the schedule to the C1Z;  all accommodation as of right (provided ground floor frontage does not exceed 2 metres) in C1Z; and  prohibits all accommodation (other than caretaker’s house, residential motel and hotel) in C2Z. Commercial zones 6

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Under the announced reforms:  Office floor area limits are removed in the Industrial 1 and 2 zones;  Office floor area caps can be specified in the Industrial 3 zone and small scale supermarkets (up to 1,800m 2 ) with supporting shops are allowable where adjoining or having access to a road in a Road Zone in Metropolitan Melbourne;  In regional areas floor space caps can be applied through schedules to the C1Z and C2Zs for shops and offices and a neutral translation of existing floor space caps occurred on 15 July 2013; and  In regional areas floor space caps are maintained in the Industrial Zones. Industrial zone reform

 the existing five Business Zones and associated schedules have been deleted from the VPP and individual planning schemes through Amendment VC100.  the new commercial zones have been inserted into the VPP and individual planning schemes through Amendment VC100 with new schedules from the Business 1 and 2 zones amalgamated and inserted into individual rural planning schemes. Consultation will occur with rural councils on the content of that schedule to resolve any inconsistencies  the amended Industrial 1, Industrial 2 and Industrial 3 Zones have been incorporated into the VPP and individual planning schemes through Amendment VC100 with existing or new schedules updated and inserted or amended into individual planning schemes. Implementation zone changes – 15 July

 No transition.  Has resulted in very large C1 areas where floor area caps have been removed.  Removed transitions.  Removal of floor area caps in overlays and other controls (in Metropolitan Melbourne) (31 December 2013).  Bleeding out of retail activity.  Inability to define activity areas.  Added pressure of VC88 (Restricted Retail Uses) Key issues – Commercial / Industrial Zones

Key changes to the Planning and Environment Act

On the 22 July 2013 the first stage of the Planning and Environment Amendment (General) Act 2013 (General Act) commenced. Changes include:  abolishing Development Assessment Committees and establishing Planning Application Committees;  setting out the duties of a referral authority;  making a referral authority, rather than the Responsible Authority, liable for compensation in certain circumstances;  including referral authorities in the list of bodies that must act expeditiously;  making various amendments to clarify the allocation of liability for compensation arising from the reservation of land for a public purpose; Stage 1 changes

 amendments to allow a Responsible Authority to amend a permit issued at the direction of the Victorian Civil and Administrative Tribunal (VCAT);  limiting the scope of VCAT to extend an expired permit;  allowing VCAT to limit its review of a matter to the specific issues in dispute between the parties; and  alterations to the time for permit holders to request an extension of time for an expired permit. Stage 1 changes

Amending Tribunal Issued Permits A permit holder can now apply to Council to amend a permit that has been issued at the direction of VCAT unless VCAT has specified that the permit may only be amended by VCAT. Where a permit has been issued before 22 July 2013, the permit may be amended either by the Responsible Authority or VCAT. Extending expired permits A permit holder can now request an extension of time:  before or within 6 months after the permit expiry date, where the use or development has not yet started; and  within 12 months after the permit expiry date, where the development has lawfully started before the permit expires. The new times apply to all extension of time requests, not just those made on or after 22 July 2013.

VCAT may limit review to issues in dispute  VCAT will now be able to confine a review to the particular matters in dispute if all the parties to the review agree. VCAT may interpret a section 173 agreement  VCAT now has jurisdiction to make a declaration relating to the interpretation of a section 173 agreement.

The remaining changes to the PE Act and the Subdivision Act under the General Act will commence in Stage 2 which will commence on 28 October Such changes include a clarification that Section 18 of the Subdivision Act 1988 does not apply if a requirement for Public Open Space is provided for in the Planning Scheme. Stage 2 changes

Questions, Comments, Observations? Further information -

© HWL Ebsworth Lawyers hwlebsworth.com.au MARK BARTLEY Partner P E DAVID VORCHHEIMER Partner P E INDRA SOYSA Senior Associate P E JAMES LOFTING Senior Associate P E

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