Changes to Victorian planning law to support environmentally sustainable developments

1 July 2022
Andrea Towson, Partner, Melbourne

The Minister for Planning has approved Amendment VC216 (Amendment), with the changes to the Victorian Planning Provisions taking effect from 10 June 2022.

What does the Amendment do?

The Amendment makes changes to the Victoria Planning Provisions and all local Planning Schemes to support environmentally sustainable development (ESD) outcomes.

For the first time, all local planning schemes will include provisions which expressly require the consideration of climate change (including mitigation and adaptation) as part of the decision making process.

These changes are designed to ensure that local planning schemes are consistent with current state policies that address climate change, energy, water and waste.

The Amendment also implements aspects of Actions 80, 89, 91, 94, 96, 97 and 101 of the Plan Melbourne 2017-2050 Implementation Actions, relating to building systems to support ESD, water management, cooling and greening, air and noise pollution, and recycling and resource recovery.

What do these changes mean for property developers?

It has long been recognised that that there is a need for greater improvement in the energy and water efficiency of new buildings and subdivisions.

The Amendment specifically requires developers to address the ESD and climate change considerations which have been incorporated into the Planning Policy Framework at Clause 11 (Settlement), Clause 12 (Environmental and landscape values), Clause 13.05-1S (Noise abatement) and Clause 13.06-1S (Air quality management), Clause 15 (Built environment and heritage) and Clause 19 (Infrastructure).

The Amendment imposes a legal obligation upon developers to consider ESD across multiple facets of the planning and development process – including as part of the subdivision design and layout process.

What ESD principles must be considered in planning permit applications?

In submitting a planning permit application, developers must demonstrate that the ESD principles have been considered and how these principles have been considered.

In particular, developers must consider the following matters, which now form part of the Planning Policy Framework:

Minimise exposure to natural hazards

  • Minimising exposure to natural hazards, including climate change

Environmental benefits

  • Improve biodiversity, renewable energy deployment and generation, energy and water efficiency and resilience to climate change hazards and risks
  • Reduce greenhouse gas emissions and reduce stormwater discharges into our rivers and bays

Social benefits

  • Increased liveability
  • More affordable living
  • Less noise and air pollution
  • Reduced health risks from climate change

Economic outcomes

  • Affordable living
  • More resilient developments

How will these ESD principles translate into permit conditions?

At this early stage, we are unsure how these ESD principles will translate into permit conditions imposed by local councils and VCAT on appeal.

As such, it is critical that ESD permit conditions are reviewed carefully, to ensure that these conditions are certain and able to be complied with by the property developer and its builders.

For example, we have seen a number of Councils introduce ‘standard’ conditions that head contractors must be ISO14001 accredited as part of their sustainable management plan conditions. Practically, this condition severely limits the pool of available contractors who can tender for a project. This will have very serious implications for projects in the boutique and medium scale of the market.

Given that ESD and climate change considerations are now part of the Planning Policy Framework, it is critical that these matters are front of mind for the entire project life-cycle: from acquisition, through to planning, delivery and subdivision.

If you need assistance in navigating the Planning Policy Framework, please get in touch with Andrea Towson of our office.

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Authored by:

Andrea Towson, Partner
Isabella Schmidtke, Lawyer

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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