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«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»

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“As an alternative to the options presented above (although not the preferred one), consideration could be given to introducing a schedule into the current Clause 52.11 (Home Occupation Provisions) that could be tailored to local requirements and provide the flexibility to increase the maximum allowable gross floor area (currently limited to 100 sq.) and the number of people that could be employed as part of the home occupation within certain zones.” Initial Report - December 2011 102 Victorian Planning System Ministerial Advisory Committee The Committee does not necessarily agree with the proposal, but the submission highlights how rigid certain zones provisions are. The Committee believes that consideration should be given to whether it is possible to draft some of the more broadly used zones, such as the Farming Zone, in a manner that provides more flexibility in what is permitted while maintaining a standardised format.

In the context of the Farming Zone, the range of land uses that may be appropriate in some areas within the zone may not be appropriate in other parts of the zone.

The same issue was also raised in the context of the Township Zone. The

submission of Pyrenees Council notes:

“4. Township Zone The Pyrenees Shire area currently includes a number of small rural townships that are located principally within the Township Zone, which is designed to cater and provide for a range of residential, commercial and industrial land uses. Under the current suite of allowable uses provided for by this zone, an industry is only permitted to be approved in circumstances where it is not listed within Clause 52.10 (Uses with Adverse Amenity Potential). Council believes that the current controls on Industrial uses is overly restrictive, and prevents Councils from allowing uses such as bakeries, joineries, panel beaters and a range of other uses that should reasonably be able to be considered within the townships concerned. It is recommended that the current Township Zone provisions were amended to provide Councils with discretionary powers to be able to consider a range of the low impact uses listed within Clause 52.10 (i.e. with buffer distances of less than 100 metres).

Without adjustments of this type and those advocated in Section 3.1 above, the only areas within the Shire where an industry (almost of any type) can be established are the Council sponsored industrial estates in Avoca and Beaufort. This situation is having serious impacts on the economic and social development of other smaller townships throughout the Shire”.

KEY FINDINGS Structure of Zones

The Committee considers:

The structure of zones warrant further consideration, including the possibility of allowing more local variations; and Given the widespread impact, some early consideration should be given to the review of the Farming Zone.

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9.5.2 Operation of Overlays One of the key issues with the planning system is the extent of ‘permit required’ development. Submissions contend that some matters addressed in planning overlays could be more appropriately handled under other jurisdictions and that some permit trigger issues simply stem from the construct of the overlays.

In Submission No. 196, HIA comments:

“There are instances where planning permits are only required for single dwellings because of an overlay to address a technical issue that could be dealt with by the building regulatory framework.

The need to obtain planning permit for what is a technical requirement necessitates local councils to use resources that could be better employed on planning issues.

There are a number of opportunities to exempt development from the planning system by removing or redrafting planning scheme overlays.

In the case of the Special Building Overlay and Land Subject to Inundation Overlay, these controls commonly require that the finished floor level is above the designated flood level set by the relevant authority. These flood risk matters can be adequately dealt with through the Building Regulation 802 for Designated Flood Areas.

Mapping of the flood areas can remain in the planning scheme to provide information to landowners of the risk, however the planning permit trigger could be removed as the floor level will be addressed at the building permit stage.

If there is an overlay and a planning permit is required, a simpler assessment tool could be used, such as the Self Assess or Code Assess Track proposed by the Development Assessment Forum’s Leading Practice Model.

A Self Assess Track could involve the issue of a standard consent provided standard criteria are met. In the case of a Wildfire Management Overlay this would include ensuring vegetation management, water supply, access and construction requirements are met.” The VPP response to exempting development from the need for a planning

permit rests essentially in two places:

Clause 62.01 and 62.

02 of the scheme, which applies general exemptions against any requirement in the scheme; and Provisions within certain overlays that enable a schedule to ‘switch off’ the permit requirement in particular circumstances.

Initial Report - December 2011 104 Victorian Planning System Ministerial Advisory Committee The submission from Stephen Rowley (Submission No. 256) challenges conventional thinking. To ensure that the full flavour of the submission is

conveyed, the Committee sets out the relevant part of the submission in full:

“The desire to ensure that permit triggers were kept out of the hands of Councils seems to have been paramount when drafting the VPP, and nowhere is this more obvious (and more detrimental) than in the structure of the overlays. The ‘activating’ permit trigger clause is placed in the front (state) part of the overlays, and all the schedule can do is exempt things back out. This back to front structure maintains the polite fiction that the ‘real’ control is in the State controlled VPP section, but in practice this is just a contrivance.

This causes a number of problems. Firstly, the controls become circuitously worded and much easier for lay people to misread. The control is needlessly dispersed through two separate clauses and its meaning is distorted by the unfortunate backwards wording used in the schedule to the overlay, where the emphasis is on what doesn’t need a permit.

This isn’t just an issue of clarity, however; the workload ramifications of this structure wide are difficult to overstate, as they create an inherent structural bias towards over regulation. In practice, buildings and works controls default to ‘on’ catching virtually everything. This has meant that efforts to reduce the burden of the system have focussed on trying to expand the exemption provisions within overlays and Clause 62. Those efforts are welcome, but we will always be playing catch up until the ‘permit for everything’ bias of the VPP is reversed.

If schedules actually included the permit triggering clause, the question of what developments really warrant a permit would inevitably be more front and centre when those controls went through the amendment process. At the moment, it’s too easy for the question of what permits will be triggered by a control to recede in importance when new overlays are considered by councils, panels and the Minister. An ‘opt in’ permit trigger system would hopefully cause more consideration before new overlays introduced sweeping needs for permits, by forcing more consideration of what does need a permit rather than putting together ad hoc lists of what doesn’t.

I appreciate that implementing this change would be complex.

Presumably it would require a state wide flipping of the controls to meaning neutral equivalents, with the real benefits following after that as incoming controls were better worded and the old catch all controls were gradually rolled back. It would be worth the effort, though; the

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number of meaningless buildings and works permits taken out of the system by such a change would be enormous.” The submission raises interesting issues which should be considered further by the Committee.

The second aspect in relation to overlays is the way that they are layered. It seems to be the case that unlike some of the available zones, there is no multi purpose overlay that is able to outline several basis of requirements for the need for a buildings and works permit or a vegetation removal permit.

Consequently, multiple overlays are applied to land making the permit triggers and decision guidelines dispersed. It is not uncommon in some municipalities to have more than five overlays apply to one parcel of land.

For example, a property in Nelson Street, Shoreham is encumbered with the

following overlays:

Design And Development Overlay (DDO);

Environmental Significance Overlay (ESO);

Significant Landscape Overlay (SLO x2 schedules);

Vegetation Protection Overlay (VPO);

Wildfire Management Overlay (WMO); and Heritage Overlay (HO).

This overburdening of controls results in a complex decision making process and in turn, frustrations through subsequent delays and confusion. In the Committee’s own experience, this is not uncommon.

The Committee considers that this aspect of the VPP requires further consideration, particularly in relation to comparably themed provisions with similar permit triggers and requirements, such as the ESO, VPO and SLO.

KEY FINDINGS Operation of Overlays

The Committee considers:

The structure of permit triggers within overlays should be reviewed; and Multi purpose overlays should be investigated with a view to reducing the need for layering.

9.5.3 Performance Based Provisions versus Prescriptive Controls One of the key issues raised in many submissions was the vagueness of objectives and uncertainty in the way many provisions both within the zones

–  –  –

and overlays and policy provisions have been drafted. Many submissions sought a higher level of certainty and the use of more prescription. On the other hand, many submissions sought higher levels of flexibility, rather than what has been interpreted as the prescriptive nature of ResCode.

One of the principles behind the VPP was the desire to ensure that planning schemes are strategically based. A matter raised with the Committee is whether the level of objective based planning in the scheme and decision guidelines which are drafted with flexibility in mind is appropriate.

The submission from Stephen Rowley makes the following observations:

“Instead of scheme controls weighing competing imperatives and giving direction as to the way planners should respond, the scheme becomes a catalogue of competing objectives which different decision makers will inevitably weight differently. This causes considerable regulatory burden, erodes confidence in the planning system, and leads to inconsistent outcomes… We need to move from a situation where strategic planning is seen as essentially a high level objective setting operation, and rethink the way we undertake strategic planning so that it is what it should be; the codification of spatial solutions to achieve poly objectives.

There are number of ways to go about this. Firstly there needs to be a cultural shift around how scheme controls are written. Performance based controls have become almost an article of faith, with use of more prescriptive standards in local controls seen as something pursued by poor planners at renegade Councils. There needs to be more recognition that prescription tools such as mandatory height controls, when properly justified, are of considerable value in providing certainty and achieving consistent outcomes.

There also needs to be greater recognition that true ‘performance based’ controls are not vague. A true performance based control

might be something like the following:

“A building shall not overshadow more than 40% of the adjacent park at 2pm on 22 September.” Such a control allows flexibility in how the performance outcome is achieved, but it is still tangible and measurable. In Victoria, we have tended to understand performance based to mean something much

vaguer like these:

Ensure that development does not adversely affect the significance of heritage places.

Ensure signs do not contribute to excessive visual clutter or visual disorder.

Initial Report - December 2011 107 Victorian Planning System Ministerial Advisory Committee Ensure the social and economic impacts of the location of gaming machines are considered.

Each of these objectives (taken from the purpose of a VPP clause) is accompanied by equally vague decision guidelines. The culture needs to shift to one in which mandatory controls and true performance based controls are the preferred methods of articulating policy, when they can be formulated, with vague ‘objective based’ controls such as currently the norm used only as a fall back option.”

In the Whitney Report, the reference group noted:

“The Reference Group considers that, in seeking to introduce a more flexible system to cope with these changes, the pendulum has swung too far and that the level of flexibility outweighs the desirable degree of certainty which is sought by the development industry, the community and their elected representatives.” and recommended;

“The current balance in the system has gone too far in favour of flexibility and performance based controls to the detriment of certainty and this should be reviewed.” The Making Local Policy Stronger reference group discussed the issue of

prescription, as follows:

“Prescriptive controls tend to be absolute. Through detailed standards or land use zone controls development either fits or doesn’t.

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