“Unlocking the Planning System” – VC243


Amid media fanfare at solutions to Victoria’s housing crisis, and what emerged as a swan song for Premier Andrews, planning scheme amendment VC243 was gazetted affecting all Victorian planning schemes on 22 September 2023.

Obviously, this amendment does not address the shortages of building materials and supplies. It does not address shortages of skilled tradesmen and the training of young people into the building (and other) trades. It comes at a time of need for urgent environmentally conscious and effective planning responses to climate change. Introduced solely pursuant to the Planning & Environment Act 1987 (PEAct), the amendment does not address widespread incompetence in the building approvals system. However, the opportunity to tighten and clarify interlinkages between the planning and building system is missed. It also fails to address the widening gap between the ‘haves’ and the ‘have-nots’. Planning decisions that override controls introduced to ensure healthy, sustainable, livable and equitable communities, must not be lost in a rush to build new housing – or they will result in even more inequitable urban life[i].

The Amendment’s Explanatory Report to claims to respond to what we call the 2021 Red Tape Report. The Red Tape Report noted a 2021–22 Budget investment of $111 million over four years to ‘unlock our planning system’.[ii] Amendment VC243 cites the Report’s finding that planning and building delays cost $400-$600M each year and its claim that reducing planning permit approval times by merely one month would generate significant economic and community benefits and help support small business. Amendment VC243 appears targeted at addressing this delay/cost-reduction equation. 

Those of us working day-to-day within the planning permit system see planning officers overloaded, a high turnover of local government planning staff (especially at senior levels), difficulty in securing pre-permit (or post-objection) meetings with decision-makers and a stop-start approach to planning approvals, with considerable use of the ‘request for further information’ power that effectively stops the processing of a permit application. Amendment VC243 removes the powers of councillors in some circumstances and a Council’s entire strategic planning powers where they conflict with some of the new controls applied to the Neighbourhood Residential, General Residential and Township zones. 

The changes are said to ‘codify’ residential development standards.

In a twist on Robin Boyd’s post-war Small Homes Service that sold architectural plans from Myers, ‘Exemplar Apartment Designs’ now exist for purchase by developers. Under the State government’s Future Homes project, a specified assessment process and particular development standards apply to multi-storey apartment Exemplar designs[iii]. More Exemplars are being developed. Amendment V243 removes ‘red tape’ where a ‘licensed’ approved Exemplar design is used. A new clause 53.24-7, titled Future Homes applies exemptions from existing controls within a General Residential zone where the land is not within either a Heritage or Neighbourhood Character Overlay and has received referral authority approval within the previous 3 months. At least part of the land must be within 800m of a train station and, in the Melbourne  metropolitan area, within 800m of a metropolitan, major or neighbourhood Activity Centre. Outside metro Melbourne, the land must be within 800m of an ‘activity centre’ – defined to include a city centre, regional centre and regional retail centre[iv]. The exemptions apply to cls 45.09 (parking overlay), 52.06 (car parking), 52.34 (bicycles), 55, 58 and 65. The precise impact on subdivision approvals remains to be seen with the removal of decisions guidelines in respect of planning permits for subdivision.

Objector rights are significantly reduced S64(1), (2) and (3) PEAct, along with removal of objector VCAT review rights under s82(1) PEAct.

An Exemplar development must meet the tailored development standards of cl53. These standards apply to car and bicycle parking, communal open space, environmentally sustainable design, accessibility, building entry and circulation, storage, functional layout, room depth, windows, natural ventilation and what is called, deep soil and canopy cover. Cl 53.24-7 requires a responsible authority, in determining approvals, to consider the purpose of the clause and whether the proposal is ‘exemplary in design, liveability and sustainability’. Particular controls apply, under cl 53.24-7 to land within a heritage, design and development, neighbourhood character and special building overlays.

‘Tick ‘n flick’ approvals are now extended. The amendment modifies two key planning scheme provisions that have regulated building design and siting for quite some time. Cls 54 & 55 now contain altered assessment criteria. Cl 54 concerns applications for one dwelling on a lot. Cl 55 concerns two or more dwellings on a lot and residential buildings. The controls remove the need for a planning permit for a dwelling on lots 300sqm or larger. On lots less than 300sqm single dwellings become VicSmart[v] approvals, in five zones. [Mixed Use, Township, Residential Growth, General Residential and Neighbourhood Residential zones]. Building extensions for single dwellings also now have changed controls. Assessment elements that are altered are height, front fences, site layout, building massing and detailed design. Other changes concern setback from street, side and rear, site coverage, permeability, boundary walls, daylight to new and existing windows, north-facing windows, overshadowing and overlooking, private open space and storage.  Perhaps, cynically one might ask, if government is really serious about reducing housing costs and delay, it will invest in automated certified digital checklist planning approvals that entirely remove the cost and delay caused by a lingering engagement with highly qualified planning officers – or the local community.

Dr Leonie Kelleher OAM

Copyright © Kellehers Australia 2023.

Liability limited by a Scheme approved under Professional Standards Legislation.

[i] See discussion, Harris, Patrick and Edge Liu, 2023, Planning Laws protect people. A poorly regulated rush to boost housing supply will cost us all, The Conversation, September 22. https://theconversation.com/planning-laws-protect-people-a-poorly-regulated-rush-to-boost-housing-supply-will-cost-us-all-213068 (accessed 02102023).

[ii] Secretary, Department of Treasury, Victorian Government, 2021, The Report of the Commissioner for Better Regulation and Red Tape Commissioner: Victoria Infrastructure Plan 2021, 12,https://www.dtf.vic.gov.au/sites/default/files/document/Victorian%20Infrastructure%20Plan%202021.pdf (accessed 02102023).

[iii] These were developed using an architectural design competition.

[iv] Cl 53.24-5 – central activity district, central business district, city centre, major activity centre, primary activity centre, principal activity centre, principal centre, regional activity centre, regional centre and regional retail centre.

[v] VicSmart applications simply approval processes in respect of minor subdivision, buildings and work, tree removal and lopping, small advertising signs and car parking reductions.