Major Victoria Planning Provisions reform with the gazettal of Amendment VC148

Yesterday (31 July 2018), the Victorian Government gazetted Amendment VC148, providing the most significant overhaul of the Victoria Planning Provisions (the VPP) since they were first introduced in 1997. Designed to modernise and simplify the Victorian Planning System, the reforms have been brought in after nearly a year of consultation led by the “Smart Planning” program and based on the Reforming the Victoria Planning Provisions Discussion Paper (October 2017).

Developers should note that no new permit requirements have been introduced with Amendment VC148. Instead, the Amendment involves a significant restructure and refinement of the VPP which should make the system more user-friendly and transparent. In some cases, permit requirements have actually been removed or reduced.

Amendment VC148 affects all planning schemes in Victoria and the changes can be broadly summarised as follows:

• The restructure of the VPP including integration of the VicSmart provisions.
• The introduction of the new Planning Policy Framework (PPF) which replaces State Planning Policy Framework (SPPF).
• Changes to structure and operation of specific clauses (with key changes including amendments to the Heritage Overlay, to the provisions relating to Signs and new Specific Controls Overlay to replace the former Specific Site and Exclusions provision).
• Changes to support businesses in commercial, industrial and Activity Centre Zones.
• Reduction in carparking requirements in commercial areas and for sites near the Principal Public Transport Network (with a new map introduced to set this out).

Planning Advisory Note 71 and 72 have been released to provide background on the changes and are available here.  A new ‘clause finder’ tool has also been developed to help with the transition so former clause numbers can be inserted and the new equivalent provision advised.

Partner, Meg Lee and Lawyer, Zina Teoh provide an overview of the changes.

1. Introduction of the Planning Policy Framework

A key change brought in by Amendment VC148 is the introduction of the Planning Policy Framework (PPF) at Clauses 10 to 19, replacing the State Planning Policy Framework (SPPF) which was formerly contained in Clauses 9 to 19. The PPF has been designed to bring all policy content in a planning scheme in to the one single policy source which is broken up in to the following 3 tiers[1]:

• Statewide policies which apply in all planning schemes in Victoria and deal with matters of state significance
• Regional policies which deal with matters of state significance that apply to allied planning schemes based on geographic and thematic policy groupings and are derived from Regional Growth Plans and Plan Melbourne.
• Local polices which apply to an individual local planning scheme and deal with matters of individual significance.

Amendment VC148 only implements the first two tiers of the PPF as local polices are yet to be included in the PPF at this stage. In the future, the Local Planning Policy Framework (LPPF) will be deleted from the scheme, as local policy content is to be moved to form part of the PPF.

Additionally, when local polices move from the LPPF to the PPF, Councils will also be required to prepare a Municipal Planning Strategy (MPS) which will be inserted as Clause 2 in of the Planning Scheme. The MPS is designed to be a simplified version of the existing Municipal Strategic Statements and have been positioned at the beginning of the scheme to provide an introduction to the municipality. Despite its position, the MPS is not to be considered above the PPF as the PPF still sits above all local policy (including the MPS) in the planning hierarchy.[2]

We note that Councils have expressed concern as to the resourcing which will be required to translate the LPP to the PPF[3] and we await further guidance from DELWP as to how this is to occur.

2. Restructure of Victorian Planning Provisions and integration of VicSmart

To facilitate the introduction of the PPF, the Victorian Planning Provisions (VPP) have been restructured.

Part of the restructure includes the integration of the State VicSmart applications (which were previously contained in Clause 92) to form part of the relevant zones and overlays. No changes have been made to the number or type of existing VicSmart classes.

The Particular Provisions have also been restructured to regroup the provisions under the following three headings which describe their functions:

• Provisions that Apply only to a Specific areas (Clause 51)
• Provisions that Require, Enable or Exempt a Permit (Clause 52)
• General Requirements and Performance Standards (Clause 53)

Operational provisions are now to be found in Clause 70 of the VPP.

3. Heritage Overlay

The new Clause 43.01-5 in the Heritage Overlay requires that a Statement of Significance be included in the Schedule to the Heritage Overlay for each heritage place. There are transitional provisions to this requirement which exempt heritage places included by an amendment for the next 3 months following gazettal of Amendment VC148.

The new Clause 43.01-6 also provides that a Schedule to a Heritage Overlay can include design guidelines for any heritage place.

4. Signs

A number of changes have been made to the provisions which regulate the use and development of signs under the VPP. One of these changes is to replace the term “advertising signs” which was formerly part of the VPP with the term “signs” (and associated changes to the definitions at Clause 73.02). The change in terminology is intended to reflect the fact that the Planning Scheme regulates a number of sign types, such as informative and directional signs.[4]

A further change to the signage requirements is the inclusion of the term “Sign” as a Land Use term in Clause 73.03. Whether a sign constitutes a land use has been debated in various cases such as APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2017] VSC 429 so inclusion in Clause 73.03 confirms the position that has been reached at case law. Importantly, Amendment VC148 also introduces an exemption under Clause 62.01 which provides that a permit is not required to use land to display a sign, only for buildings and works associated with the land use.

Additionally changes have been made to Clause 52.05 (Signs) including a new requirement that a permit which includes an expiry date must contain a condition requiring removal of the signage structure upon expiry of the permit.

5. Specific Controls Overlay

The Specific Controls Overlay (SCO) has now been introduced to the VPP which is intended to replace Clause 52.03 – Specific Sites and Exclusions.

The SCO has the same function as the former Clause 52.03 in that it enables specific controls in an Incorporated Document to override other parts of the Planning Scheme. The SCO will now appear, like all overlays, in Planning Scheme Maps and Property Certificates, making it easier to assess when an Incorporated Document applies to a site.

At this stage, Clause 52.03 – Specific Sites and Exclusions still remains in the scheme, however it has been renumbered to Clause 51.01 and is intended to be phased out. Use of Clause 51.01 is permitted for three months after the gazettal of VC148. Documents that have been incorporated in to the planning scheme under Clause 52.03 (now Clause 51.01) will also eventually be transferred to the SCO.

6. Reduced car parking requirements

One of the major changes to permit requirements brought in by Amendment VC148 relates to the car parking requirements in Clause 52.06-3 as follows:

• Permit exemption for a new use in commercial areas.
  Under Clause 52.06-3, a permit is now not required to reduce the number of car parking spaces required for a new use of an existing building if the following requirements are met:
  • The building is in the Commercial 1 Zone, Commercial 2 Zone or Activity Centre Zone;
  • The gross floor area of the building is not increased;
  • The reduction does not exceed 10 car parking spaces; and
  • The building is not in a Parking Overlay with a schedule that allows a financial contribution to be paid in lieu of the provision of the required car parking spaces for the use.
• Reduction in rates for land near public transport
  For land within 400m of public transport (as shown on the new Principal Public Transport Network Area Maps, the reduced carparking rates specified in Column B of Table 1 in Clause 52.06 will apply. These rates will apply to the whole of a site, even if it is only part of the site which is within the PPTN Area.

The above reforms to Clause 52.06 demonstrate an acknowledgment that it is usually not possible to provide additional parking for an existing building that undergoes a change of use, or that less parking is required for sites close to public transport. These changes will help to reduce the costs associated with carparking waiver applications in situations where the rates have been considered to be unnecessarily high. Additionally, the reforms respond to submissions to the Reforming the Victoria Planning Provisions Discussion Paper the suggested reform was required to try and reduce the culture of reliance on cars[5].

7. Development Plan Overlay

The DPO has been amended to clarify the review and notice exemption provision such that it is clear that applications under the overlay are exempt from third party notice and review. If the application is not generally in accordance with the approved development plan, then it must be refused by the responsible authority. This change does not affect the operation of the DPO and has been implemented to avoid the confusion surrounding the exemption which was identified in Saunders v Frankston CC[6] whereby one reading of the former provision would have had an application that was not generally in accordance with the development plan being advertised to third parties even though it was required to be refused by the responsible authority.

8. Clause 52.09 – Land Adjacent to a Road Zone, Category 1, or a Public Acquisition Overlay for a Category 1 Road

An exemption has been introduced at Clause 52.29-5 to exempt applications under Clause 52.59 from the notice and third-party review requirements of the Act. This change appears appropriate to reduce the number of unnecessarily planning appeals where the only right for third parties to object is under Clause 52.29.

9. Changes to support businesses

Part of Amendment VC148 has aimed at lessoning the cost that unnecessary planning requirements can add to running a business. This is important as given that a review undertaken by Small Business Victoria identified that the time taken for approvals is a key area of reform required to support small businesses.[7]

The following uses now do not require a permit, as they have been identified as low impact uses for which a permit is unnecessary:

• Convenience shop – Industrial 1 Zone
• Take away food premises – Industrial 1 Zone and Industrial 3 Zone
• Service industry – Industrial 3 Zone (subject to conditions in the Table of Uses)

Additionally, particular provisions for use of land as a service station (Clause 52.12), a car wash (Clause 32.13) and motor vehicle, boat or caravan sales (Clause 52.14) have been deleted in recognition that these provisions impose an unnecessary burden on businesses.

Moving forward

Amendment VC148 represents a substantial change to the structure of the VPP and a long awaited refinement of a number of outdated provisions. Businesses will be pleased to note that no new permit triggers have been added with the controls, and for some uses, the permit requirement has either been removed (such as certain low impact uses in Industrial Zones) or reduced (such as in relation to car parking).

We can expect to see another round of amendments following the LPPF removal and translation into the PPF.

[1] Planning Advisory Note 71
[2] Amendment VC148: Frequently Asked Questions, page 4 (https://www.planning.vic.gov.au/__data/assets/pdf_file/0014/330206/VC148-Frequently-Asked-Questions.pdf).
[3] Summary of submissions to Reforming the Victoria Planning Provisions – A Discussion Paper (March 2018) page 7.
[4] Planning Advisory Note 72.
[5] Summary of submissions to Reforming the Victoria Planning Provisions – A Discussion Paper (March 2018) page 10
[6]  (Red Dot) [2009] VCAT 144; Planning Advisory Note 72.
[7] Making it easier to do business in Victoria, Small Business Regulation Review (Retail Sector) 2016

Authored by:
Meg Lee, Partner
Zina Teoh, Lawyer