The Amendment is part of the Victorian Government’s Smart Planning program which aims to simplify and modernise Victoria’s planning policy and rules to make planning more efficient, accessible and transparent. VC159 amends all planning schemes to introduce new land use terms, revise the definition of land use terms and change where land use terms are nested.

The changes have been made to:

• Increase the use of everyday terms that the wider-community understands.
• Remove or modernise obsolete terms and provide for new or emerging land uses.
• Distinguish between similar land uses where treated differently in land use tables.
• Remove unnecessary narrow terms and broaden definitions, where appropriate.
• Provide definitions for undefined terms where appropriate (except for terms that are sufficiently captured by an ordinary dictionary meaning or defined in the Act).

Changes to land use terms which may be of particular interest to practitioners include:

• The land use term ‘Child care centre’ is now nestled under ‘Education centre’.

This change has implications due to the Purpose of the three main residential zones which include, inter alia:

To allow educational……. and a limited range of other non-residential uses to serve local community needs in appropriate locations.

It is also noteworthy that, third-party notification and appeal exemptions in certain zones apply when specified buffer distances are met from education centres (which now explicitly includes child care centres).

Other notable changes include:

• Office: The definition of ‘Medical centre’ is amended to include surgical and pathology services.
• ‘Place of assembly’ and ‘Restricted place of assembly’ are amended to include spiritual activities.
• Retail premises: The definition of ‘Take away food premises’ is amended to include up to 10 seats available for the consumption of food and drink on the premises.
• Rename ‘Tavern’ as a ‘Bar’.
• Utility Installation: The definition of ‘Minor utility installation’ is amended to include siphons, water storage tanks, disinfection boosters stations and channels. This relates to land used specifically for that purpose, rather than auxiliary utilities for a building of another purpose such as a dwelling or office.
• The definition of ‘Utility installation’ is amended to include transmit, distribute or store power, including battery storage.
• The definition of ‘Car park’ now includes the charging of electric vehicles.

Where new land use terms have been made or existing terms altered, these have been included in the relevant Use Table contained in the zones. We recommend that if you are involved in planning permit matters relating to the use of land, that you check the zone provisions to ensure the status of any of the most recent changes.

Updates have also been made to the Bushfire Management Overlay and Airport Environs Overlay to align with the new or altered land use definitions.

 

A recent Victorian Civil and Administrative Tribunal “RED DOT” decision has provided clarity on the definition of “lot”, where there are multiple titles involved in one planning permit application, for example, building multiple dwellings over two titles. The decision in Clayton Gardens Pty Ltd v Monash CC [2019] VCAT 1138 considered whether the mandatory garden area requirement applies to each single lot or to the whole application area if there are multiple titles in an application. It also considered whether, if it applied to the multiple titles, whether it was reasonable to include a condition on the permit requiring the lots to be consolidated as part of the approval.

We note Clause 32.08-4 of the VPPs provides:

‘An application to construct or extend a dwelling or residential building on a lot must provide a minimum garden area as set out in the following table’. The Tribunal considered that

On the question of whether the Garden Area requirement applies to each single lot (in an application that incorporates multiple lots) or to the whole application area (planning unit) the Tribunal found that:

…. the minimum garden area requirement to be applied is dependent upon the type of application and the composition of the planning unit. As such the garden area is to be applied to the planning unit, not on a per lot basis, if the application includes more than one lot.

On the question of whether it was reasonable to include a condition on the planning permit requiring the lots to be consolidated as part of the approval. The Tribunal provided the following, significant commentary:

Compliance with clause 32.08-4 must occur at the time of the application. There are therefore no reasons to impose a condition requiring consolidation either before or after consideration of the application.

The answer to this second question has been widely-interpreted as meaning, that if applications do not incorporate the required Garden Area – a permit condition cannot be imposed to require compliance.  Practitioners need to be aware that such non-compliance may result in applications being summarily refused or struck-out.