New residential zones, including new mandatory height limits, are imminent

Last week, the Government announced that it would implement Amendment VC110 to make changes to Victoria’s residential zones in response to recommendations by the Managing Residential Development Advisory Committee’s (the Committee) review of the residential zones which began in late 2015 and was recently reported to the Minister for Planning.

The three residential zones, the Neighbourhood Residential Zone, the General Residential Zone and the Residential Growth Zone, were released by the government in 2013 with Councils given to mid-2014 to apply these zones to land within their Municipal area and to incorporate them into their planning schemes. The Committee was then tasked with the job of reviewing the process by which these residential zones were implemented and applied by Councils and to recommend improvements to the zones.

The government has responded to recommendations made in the Committee’s report¹ in the form of Amendment VC110² which replaces the head provisions in each of the existing residential zones. The Committee’s review and Amendment VC110 is part of the Government’s plan to meet increases in housing demands in Victoria, where the population is expected to increase from 4.5 million today to 7.9 million by 2051.

As discussed below, the changes to the residential zones include maximum height and storey limitations on buildings and introduce a minimum garden area requirement. Any developers intending to lodge planning applications should carefully assess the implications of the revised zones and may wish to lodge applications promptly to be able to take advantage of transitional provisions as we understand that gazettal of Amendment C110 will occur by the end of March.

Partner, Meg Lee, and lawyer Zina Teoh provide a summary of the changes to be implemented by Amendment VC110 for each of the three zones.

A brief summary is set out of the key changes for each zone:

Neighbourhood Residential Zone (NRZ)

• Mandatory maximum building height to increase from 8m to 9m with a new 2 storey height limit (Councils are able to increase the height limit to greater than 9m by implementing a new schedule to the zone).
• Maximum building heights may be increased where flood levels affect land.
• Existing limit on the number of dwellings that can be built on a property to be removed and replaced with a mandatory minimum garden requirement of up to 35% for lots over 650sqm.

General Residential Zone (GRZ)

• Discretionary maximum building height of 9m to be replaced by a new mandatory maximum building height of 11m, with a new 3 storey limit in addition. (Councils are able to increase the height limit to greater than 11m by implementing a new schedule to the zone).
• Mandatory minimum garden requirement to be introduced.
• Maximum building heights able to increase where flood levels affect land.

Residential Growth Zone (RGZ)

• Discretionary maximum building height of 13.5m to be retained, with Councils able to set alternative maximum heights of above 13.5m.
• Maximum building heights to increase where flood levels affect land.

Implementation Timeframes

It is understood the Amendment will be gazetted within the next week by the end of March.

The NRZ and GRZ will include transitional provisions to the building heights, the minimum garden area requirements, and the number of storeys allowed. The changes brought about under these amendments will not apply to planning permit applications submitted before the requirements are gazetted.³

Given that Amendment VC110 is due to be gazetted by the end of March, developers wishing to take advantage of existing zone provisions should lodge their permit applications as soon as possible.

Lot density and gardens

Amendment VC110 will see the removal of the default limit of two dwellings per lot in the NRZ to be replaced by a minimum garden requirement for lots over 400 square metres in the NRZ. This minimum garden requirement will also be introduced in the GRZ, increasing the amount of garden space which must be provided for new developments in these two zones.

Open entertaining areas, lawns, garden beds, swimming pools and tennis courts will be included as part of the garden areas, whereas driveways and areas set aside for car parking will not.

The following diagram shows how a townhouse development on a lot size of above 650 square metres will be affected by the change.⁴

The removal of the limit to number dwellings and introduction of the garden requirements address the Committee’s view that the limit to the number of dwellings on lots in the NRZ can lead to potential inefficiencies in the use of land. A further issue identified in the review was that heritage buildings are sometimes left undeveloped due to restrictions caused by the two dwelling limit.  It appears that replacement of the two lot limit in the NRZ with the minimum garden requirement seeks to provide greater flexibility in the number of dwellings on a lot while ensuring that the open space character of Victoria is protected.

Developers should note that the minimum garden requirements are in addition to the site coverage and permeability standards found in Clauses 54 and 55 of the planning schemes. Furthermore while the site cover and permeability standards can be varied and are based on performance, the minimum garden requirements are mandatory for applicable sites.⁵

Increase to Heights Limits

The amendments see an increase to the height limits of buildings in the NRZ and GRZ, with the limits becoming mandatory instead of discretionary.  However, the RGZ will retain the discretionary maximum building height of 13.5m. In each zone, Council will still have the power to increase the height limit above the mandatory height limit in the zone through a variation to the schedule.

There was much discussion on height limits in the review of the NRZ including that the existing 8m height limit is an “arbitrary control”⁷  and it can be difficult to achieve two storey dwellings that are only 8m high.⁸  Additionally, while there are many occasions where heritage buildings exceed the 8m height limit, new developments in the same areas are restricted to 8m, even though a higher building could fit in with the built form of the area. The increase in the mandatory height limit to 9m appears in the NRZ appears to provide greater flexibility for developers while the limit of 2 storeys addresses concerns that increasing the height would lead to buildings with 3 stories.

The changes to the GRZ height limits see the controls become more conservative given the currently discretionary height limits have now changed to a mandatory control. Some flexibility has been provided however in that the height limit will increase from 9m to 11m.

Existing Exemptions & Transitional provisions

Where Councils currently have in place lower maximum building heights in their existing schedules, these lower heights will continue to apply even though the maximum building height under the zone has increased. What is unclear, is the situation where schedules contain lower maximum building heights and also provide exemptions to these lower height limits which could go higher than the new maximum height limit in the zone.

For example, some schedules in the GRZ state that maximum building heights listed in the schedule can be exceeded so long as the height of the building does not exceed the height of an immediately adjacent building facing the same street. In this case it is clear that the lower maximum building height stated in the schedule will continue to apply provided it is lower than the new mandatory maximums brought in under the amendments. However it is not clear whether an exemption to these lower maximums stated in the schedule will continue where these exemptions would effectively allow buildings that go higher than the new mandatory controls in the head provision of the zone.

Given the uncertainty in relation to height limit exemptions found in the schedules, developers seeking to rely on existing exemptions in schedules to build higher than the new maximum height and storey limits should think about applying for their permits as soon as possible and take advantage of the transitional provisions for applications lodged prior to gazettal of Amendment VC110.

Planning housing for the future

The changes provided for under Amendment VC110 form part of the implementation strategy of the recently refreshed Plan Melbourne. Plan Melbourne sets out Melbourne’s planning strategy to 2051 and includes a number of principles and goals to guide decision makers in the planning system.

Of particular relevance to the housing issues canvassed by the review of the residential zones provided for under Plan Melbourne is the need to provide better housing choices in locations close to jobs and services, the concept of 20 minute neighbourhoods and the aspirational target of 70 per cent of new housing to be provided in Melbourne’s established areas. The review of the residential zones and Amendment VC110, together with the Better Apartment initiatives which began last year and development of Greyfields areas form part of current efforts to deliver these housing goals to Victorians.

Steps to come relating to housing include the development of regional housing plans to be used to guide housing growth and streamlined approvals for specific housing such as aged-care accommodation, secondary dwellings and student housing.⁹

Additionally, Plan Melbourne has identified the need to provide affordable and social housing to meet the needs of Victorians given increasing prices for housing and the increase in homelessness in Victoria. Affordable and social housing was also touched upon in the review of the residential zones, although not included in Amendment VC110, with the Committee stating (in relation to the NRZ) that there needs to be further consideration as to how “social housing” is treated in the Victorian Planning Provisions before it is afforded special exemptions to zone requirements.¹⁰

Reforms to come set out in Plan Melbourne in relation to affordable and social housing include clearer definitions and prioritisation in the planning scheme and potential requirement for value uplifts created from rezoning to contribute to the delivery of social and affordable housing projects.¹¹

¹ Available at https://www.planning.vic.gov.au/panels-and-committees/current-panels/managing-residential-development-advisory-committee2 At the date of this article, a copy of Amendment VC110 is not publicly available.

² At the date of this article, a copy of Amendment VC110 is not publicly available.

³ Reformed Residential Zones Fact Sheet, pg 2.

⁴ Reformed Residential Zones booklet, pg 11.

⁵ Advisory Committee Report, Managing Residential Development Advisory Committee Residential Zone Review, pg 130.

⁶ Reformed Residential Zones: Minimum Garden Requirement Fact Sheet

⁷ Urbis (S133), Advisory Committee Report, Managing Residential Development Advisory Committee Residential Zone Review, pg 124.

⁸ Advisory Committee Report, Managing Residential Development Advisory Committee Residential Zone Review, pg 105.

⁹ Five Year Implementation Plan, Plan Melbourne 2017-2050, pg 13-15. ]

¹⁰ Advisory Committee Report, Managing Residential Development Advisory Committee Residential Zone Review, pg 130.

¹¹ Five Year Implementation Plan, Plan Melbourne 2017-2050, pg 13-15.