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Can a large development site, made up of multiple small lots, utilise the ‘small lot exemptions’ contained in the Aboriginal Heritage regulations? This question was put to VCAT in Hartland Group Pty Ltd v Mornington Peninsula SC  VCAT 1722 VCAT.
The following provides a summary of the Tribunal’s findings:
Practitioners will be familiar with the fact that a cultural heritage management plan (CHMP) is required prior to the issue of a planning permit for a development, or activity if:
(a) all or part of the activity area for the activity is an area of cultural heritage sensitivity; and
(b) all or part of the activity is a high impact activity
Areas of cultural heritage sensitivity are mapped by the State Government and contained on property planning reports available from VicPlan. What constitutes a ‘high impact’ activity is defined by Regulation 48 of the Aboriginal Heritage Regulations, and includes
(1) The construction of 3 or more dwellings on a lot or allotment is a high impact activity.
(2) The carrying out of works for 3 or more dwellings on a lot or allotment is a high impact activity.
So, the development of 3 or more dwellings on land identified within an area of cultural heritage sensitivity requires a CHMP.
However, regulation 10, provides the following exemption:
The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is—
(a) not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and
(b) less than 0·11 hectares.
In the Hartland Group case, the proposal included the construction of seven dwellings over two lots. The land was not within 200 metres of the sea, coastal waters of Victoria or the Murray River.
Each lot was approximately 840sqm, combining to provide a subject site of more than 1600sqm (0.16hectares).
The permit applicant argued that because each lot was less than 1100sqm (0.11 hectares) no CHMP was required.
Council argued the opposing position and sought to convince the Tribunal that the small lot exemption could not be applied, because the overall parcel (planning unit) was greater than 1100sqm.
The Tribunal noted:
Mindful of the focus being on the lot or allotment in question, I agree with the Applicant that it should not matter whether a development area is comprised of one lot that meets the two limbs of regulation 10 or of more than one lot that each meet the two limbs of that regulation – the main thing is that each lot that comprises the area proposed for the development of 3 or more dwellings must meet the two limbs of the regulation.…
For these reasons, I find that the proposed activity the subject of planning permit application P18/0591 can rely on the exemption contained in regulation 10 and, as such, a CHMP is not required to be prepared in respect of that proposed activity…
Cultural heritage management plans can be expensive and time consuming. However, the Hartland decision makes it clear that a CHMP may be avoided if your large development site is made up of lots smaller than 1100sqm.
In July 2019 The Age newspaper published an article concerning the decline of trees in Metropolitan Melbourne, using research findings from a study by RMIT University. The article reported that in the 5 years between 2014 and 2018, a total of approximately 2000 hectares of tree cover was lost from the city. The eastern suburbs had lost approximately two-thirds of this, with the western suburbs gaining slightly in tree cover. The article then went on to show the difference in tree cover between 2014 and 2018 by metropolitan municipality. The greatest extent of loss appears to be experienced in outer suburbs such as Yarra Ranges and Mornington Peninsula. However, other outer areas such as Melton, Whittlesea and Wyndham had gains of between 1-2% over this time.
The study found that the loss of vegetation could be attributed to:
Regular applicants will know that issues such as; provision of land for landscaping within new development proposals, providing setbacks for landscaping and appropriate species choice, have come into closer scrutiny in recent years.
While many of the State’s Planning Schemes contain local planning policy to maintain, replace or increase landscaping through the planning permit process, many have no specific standards beyond ResCode Standard B13 at Clause 55.03-8 Landscaping Objectives and Rescode Standard A8 at Clause 54.03-6 Significant Trees.
Objective which both include:
Pursuant to Clause 52.17 Native Vegetation, the Planning Scheme provides for offset planting to mitigate the ecological impacts of loss of native vegetation, but only on lots of greater than 4000 square metres, which excludes the majority of privately owned land in Melbourne. The offset planting is unlikely to be in metropolitan Melbourne due to limited land size and limited existing ecologically significant areas of vegetation to be protected or enhanced.
The structure of Victoria’s planning schemes provides the opportunity for specific landscaping standards to be inserted into the Schedules of the Residential zones. The schedules may vary Clause 54 and 55 (ResCode) standards for setbacks, site coverage, permeability, landscaping, walls on boundaries, private open space and front fences. In relation to Landscaping, an example is Banyule City Council which has varied:
Landscape plans will provide at least 1 large tree in the front setback.
Landscape plans will provide 1 tree for every 400 square metres of site area, including 1 large tree in the front setback.
Banyule’s Residential Neighbourhood Character Policy at Clause 22.02 of the Banyule Planning Scheme also includes policy for planting requirements which go further to include:
One (1) medium to large tree should be provided for every 400 sq.m of site area, with a preference for large trees. This may include existing trees that are worthy of retention. At least one of the large trees should be provided in the front setback.
Local policy at this clause also includes an application information requirement to provide a landscaping plan which considers the Banyule Tree Planting Zone Guidelines which set out standards for the planting of small, medium and large trees in new development sites, relative to lot area.
Moreland City Council also have variations to the Schedule for their General Residential and Neighbourhood Residential Zones which specifies the requirement for:
A minimum of 1 tree should be planted in the front setback, in accordance with the Moreland Tree Planting Manual for Residential Zones, 2014 (General Residential Zones).
A minimum of 1 tree should be located within both the front setback and the secluded private open space of each dwelling, in accordance with the Moreland Tree Planting Manual for Residential Zones, 2014.
At the time of writing, Moreland City Council have Planning Scheme Amendment C189 under exhibition. This Planning Scheme Amendment proposes to direct specific tree planting outcomes in medium density housing by adding landscaping requirements within the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone and Mixed Use Zone Schedules.
The proposed changes include:
Ensure the design and siting of new buildings maximises landscaping throughout the site, including the retention of existing canopy trees (where practical) and the planting of new canopy trees and vegetation.
And to vary standard B13 to include a range of specific landscaping requirements including:
The provision of specific standards for landscaping gives greater certainty for planning permit applicants, where defined planting expectations assist in concept development and building envelope layout. This is the case particularly for canopy trees which generally provide the greatest public/neighbour offsite amenity. Frustration experienced by planning permit applicants is often cause by uncertainty over the expectations of the Responsible Authority in relation to subjective or nonspecific provisions in Planning Schemes. While the standards described above are not mandatory, they are useful in defining an appropriate minimum standard giving confidence to Council, applicants and other parties that landscaping and tree planting is accommodated in new development proposals.
These tidbits are part of the regular contribution made by Clause:1 Planning to Intersect.
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