Planning Zone Alert

October 4, 2013 by MJ

Latest Update on Planning Zone ‘Reform’

VicSmart is a state government initiative to ‘cut red tape’ and ‘streamline the planning permit process’ for ‘simple, straightforward proposals … across Victoria’. Unfortunately, it is clear to the AIDA committee that the details of VicSmart do not adequately take account of the special nature of our coastal area, and our local planning objectives, as in the Surf Coast Planning Scheme, and, importantly, our local neighbourhood character.

AIDA recently made a submission to the Victorian Department of Planning presenting our concerns with the new VicSmart planning permit process outlined in a consultation draft published in July 2013. The proposed measures are designed to provide faster planning permit decisions for a variety of smaller scale permit applications. The government has committed itself to providing VicSmart planning decisions within 10 working days.

Rules are proposed which will automatically trigger an application as being either a VicSmart matter or a normal permit under the planning scheme. The consultation draft includes all the VicSmart categories of minor development proposals which are to mandatorily and uniformly apply across the state. No application fitting one of these categories will in future be able to be processed as a normal application. In addition, provision is included for any municipal council to specify its own local VicSmart categories in the future as an amendment to the local planning scheme.

The VicSmart categories include some, but not many, of the planning decision issues which have been of concern to AIDA over the years. These categories are to be contained in a new state wide Section 90 in all planning schemes. The VicSmart categories applying to our area are:

Residential Zone

• various forms of 2 lot subdivisions

• constructing or extending a fence which exceeds the maximum height

Commercial Zone

• any works up to $50,000 which are greater than 30 metres from a residential zone

Environmental Significance Overlay

• constructing a fence

• removing, destroying or lopping a tree

Design and Development Overlay

• constructing a fence

Neighbourhood Character Overlay

• removing, destroying or lopping a tree

Heritage Overlay

In Aireys this applies only to the Lighthouse and former keeper’s properties in Federal Street.

There are in all 35 types of heritage-related applications under VicSmart, which include:

• demolishing an outbuilding or a fence

• altering or painting a building

• constructing a fence, outbuilding, veranda, deck or domestic swimming pool

• constructing or displaying a sign

• lopping a tree

Advertising Sign

• displaying a non-illuminated, non-electronic and non-animated advertising sign greater than 30 metres from a residential zone, and not exceeding 10 square metres.

Car Parking

• reducing or waiving the required number of car spaces associated with any as-of-right use.

A fuller description Proposals involving more than one of these categories must be dealt with as separate applications.

To achieve the 10 day turn-around commitment each municipal CEO or his/her delegate will become the responsible authority for all VicSmart applications, and local councils will apparently have no role or powers in the process.

The requirements are specified for the information to be provided by the applicant with an application, for each category of proposal, and these appear to be as comprehensive as those existing for a normal application. But VicSmart has the added requirement that, if an application requires consent from a referral authority (e.g. the Department of Environment) that consent must also be included with the application. If a referral authority fails to provide written consent to any VicSmart application the application is automatically escalated to become a normal planning permit application which will then be processed outside VicSmart by the usual process.

Failure of an applicant to provide any scheduled information not needed for a particular application is acceptable if the responsible authority agrees to it. To be practical however within a 10 day timeframe, presumably the decision on this will rest with the officer processing the application rather than the responsible authority. In any event such a decision will effectively be discretionary and won’t need to be made public or to be publicly justified as it can be in a normal application.

In processing an application, once the 10 day clock has started it will never stop during the 10 working day time limit, so that if an applicant fails to provide required information with the original application he or she must do so within the 10 day period. Although it doesn’t appear to be explicitly stated, the implication is that as soon as the processing time for an application exceeds 10 working days because the applicant has not provided the required information, the application is to be refused. However the applicant could appeal this to VCAT.

Each VicSmart application category also has specified decision guidelines, again similar to those already in the planning scheme provisions for a normal application, to be considered by the new-style responsible authority in deciding on the application. However as this is a state-wide system, these guidelines do not and cannot – either explicitly or sometimes at all – include anything derived from local Surf Coast planning strategies and objectives.

As with the current system, these are dot point lists of individual guidelines which in practice may be of unequal weight or even be contradictory to one another. And as in the present system, there are no rules or further guidance to planning officers and responsible authorities as to how these decision guidelines are to be applied or how much relative weight should be given to one rather than another.

In the case of contradictory guidelines the responsible authority appears to have no option but to determine that one guideline applies in the particular case and that the conflicting one should not. For example, it seems clear that with the new bush fire provisions, which explicitly specify personal safety as the overriding criterion in all relevant cases, any conflicting decision guideline e.g. which advocates vegetation protection, cannot influence the decision in any contrary way.

The consultation draft makes clear that all VicSmart applications will, in this way, be determined on their “merit”, where the responsible authority must use discretion (their words) in coming to its decision.

The consultation draft also states, as justification for the absence of third party notice (i.e. any one else being told about the application and its details in the first place) or review (i.e. an affected member of the community being able either to apply to VCAT for reconsideration of the decision or to be a party to a VCAT hearing about it) that all VicSmart applications have limited onsite and offsite impacts and also “are already deemed to be consistent with policy” whatever that might be intended to mean.

The only rights for review of a decision by VCAT under VicSmart are from the applicant.

This can be for either:

• failure to grant a permit in the prescribed time,

• refusal to grant a permit,

• conditions in a permit, or

• refusal to extend time to commence or complete a development or use.

The legislation required to implement VicSmart was passed by parliament in 2012 and the current consultation relates to minor changes to the Act’s regulations plus the 50 pages of the new Section 90 provisions for all planning schemes.

Ian Godfrey

September 27, 2012 by MJ

Planning Zone ‘Reform’ Update

On 5 March 2013 Planning Minister Matthew Guy announced the government’s decisions regarding the changes to the state’s residential zones, as the first part of the ‘Reformed Zones for Victoria’ program. This follows the recommendations of the ministerial working party, which considered all public submissions made last September.

Although limited at this stage to residential zones only – and bearing in mind that AIDA’s main concerns related largely to the proposed changes to the commercial and rural zones – it is good to see that important changes to the original residential zone proposals have been agreed to by the government.

Of the three new and two revised residential zones, only two recognise neighbourhood character, and of these AIDA strongly prefers the Neighbourhood Residential Zone for our area. Although it will be up to the shire council to make a final decision on this choice, it appears that there is a very strong case to choose the Neighbourhood Residential Zone for all of the Aireys Inlet district’s existing Residential Zone 1 (RZ1) areas.

In all, the government received 180 submissions from throughout the state on the various points made associated with the proposed Neighbourhood Residential Zone. It is therefore well worth noting that the submissions of AIDA members would have made up a significant component of those expressing their views to the working party.

AIDA’s major concerns regarding the Neighbourhood Residential Zone were (in bold) and the government’s revised provisions are:

Non-residential uses were not to be subject to building height or neighbourhood character controls.

• Now ALL developments will be subject to building height controls, neighbourhood character, heritage, environmental and landscape characteristics.

The default building height limit was to be 9 metres, and 10 metres on sites steeper than 2.5 degrees.

• This will now be reduced to 8 metres, and 9 metres for sites steeper than 2.5 degrees. It is also good to see that this control is to be mandatory, and not merely an objective, as it is at present. A lesser building height can also be scheduled, as we currently have with our local 7.5 metre height limit.

Medical centres and places of worship were to be allowed anywhere, with no permit.

•Now these developments will require access to a road zone, which will limit them to sites with access to the Great Ocean Road or Bambra Road. Also, any new medical centre must now be within an existing building.

The new residential zones will be legally established on 1 July this year and their inclusion in each planning scheme is to be implemented by 1 July 2014.

We have yet to hear anything of the final proposals for the new and revised commercial and rural zones.

Ian Godfrey

These announcements come on top of radically revised and reduced state-wide car parking planning requirements introduced by the Minister for Planning in June, which will lead to increased roadside car parking, and will be further exacerbated by the new zoning changes.

Some aspects of the changes may be positive, such as a welcome absolute limit to residential building heights, but other changes will introduce potentially intrusive uses and encourage development to spread into surrounding green areas.

At public meetings, the Minister for Planning Matthew Guy has made clear that the proposed changes are designed to let “the market” determine the mix of uses under the new zonings rather than continue with the current level of more direct statutory control over land uses.

Rural areas:

All of the bush and paddocks between the public conservation zones of the Great Otway National Park and our core residential areas have a rural zoning. This includes most of the lower density residential areas in Aireys Inlet and Fairhaven – as well as most of the Painkalac Valley. In past consultations with our members and with the general community, the preservation of the Valley has ranked first in importance, ahead of all competing local development and environmental issues.

The Government’s stated aim for the revised rural zone is to “protect and enhance natural resources and the biodiversity of the area.” This sounds fine, but unfortunately, the proposed changes will remove the very controls, that is, the requirement to apply a Section 173 Agreement to stipulate detailed subdivision and development restrictions, which have preserved the Painkalac Valley to date.

This is a serious challenge for AIDA and our whole community.

But the rural zone changes as proposed go well beyond this challenge, driven by the state Government’s decision to allow greater Melbourne to “bleed” into Melbourne’s rural green wedges. Our rural zone is caught up in the backwash of this controversial metropolitan-focussed policy.

The changes to the rural zone are proposed to allow, with a permit, but without any use-related conditions: leisure, sports and recreation, camping and caravan parks, residential hotels (including entertainment), group accommodation, host farms, residential buildings, residential and retirement villages, primary and secondary schools, and other uses. Conditions on restaurants, including the current cap of 150 patrons, are to be removed. Only the existing conditions which apply to a planning permit for a dwelling are to be retained under the revised rural zone.

AIDA is concerned that our settlements will be permitted to spread into surrounding rural land, bringing greatly increased resident, tourist and visitor numbers. Some may think this will be a great opportunity, but we fear it will lead to the destruction of the things we value most about our area.

Taken together, the above changes to residential, shopping and rural areas are likely to increase local population and the mix of activities, placing strains on the capacity of our infrastructure, including water, sewerage, roads and drainage – not to mention our pristine beaches and environment – and also possibly adding to our existing fire risks. Increased traffic volumes will lead to congestion and reduced pedestrian safety, with the need for yet more signage, road sealing, formal streets and footpaths — the suburbanisation of Aireys Inlet.

Shopping centres:

Our shopping centres are to be changed to a new ‘commercial’ zone intended to radically free up the mix and scale of the developments permitted. This is designed to “promote vibrant mixed use commercial centres for retail, office, business, entertainment and high density residential” according to the Government’s documentation.

New retail uses, not currently allowed, are to be permitted – such as gambling and car sales – and will not require a permit nor be subject to any of the conditions which currently apply. “High density residential” may mean high-rise, as has been supported elsewhere by the Minister in low-rise areas.

In what the AIDA committee sees as a further dangerous step, in almost most cases the public will not be provided with notice of permit applications for new developments in this zone, nor be able to object to them nor to appeal to VCAT – except only for hospital and education uses and commercial areas within 30 metres of a residential zone.

Submissions to Government:

Public submissions to the Government on the new zones closed on 21 September. AIDA made a submission, as did many individual members.

There will now be a staged process for the changes to be confirmed by Government and put into place by local councils in all planning schemes throughout the state. We can therefore expect the changes to our area to be progressively introduced over the next 12 months.

Details of the Government’s proposed new zoning reforms can be found on the Victorian Planning Department’s website at:

www.dpcd.vic.gov.au/planning/theplanningsystem/improving-the-system/new-zones-for-victoria.

Ian Godfrey and Peter McPhee

Note: this and other articles about topical planning issues that affect our district can be found in the AIDA Newsletter October 2012 and under the Planning Matters button on the Top Menu.