Sustainability Soap Box

Environmental Projects Melbourne Australia by Louise Lovell

Planning in Melbourne January 28, 2010

This paper was written as part of my studies in the Master of Urban Planning at Melbourne University.

Student Paper 3; Zones, Overlays, Specific Clauses; A Strategic Pattern? An Analysis Of Reality.

Laura Condon & Louise Lovell

October 2006

1.0        Executive Summary

This report examines the content of the Yarra Planning Scheme to ascertain whether it succeeds in securing the strategic vision it outlines.  Examined are the various clauses included in the Planning Scheme that combine to provide the statutory decision guidelines used in the planning approvals process; these include the Local Planning Policy Framework, Zones, and Overlays (Dept of Sustainability and Environment (DSE), 2006 (a), (b), (c)).  Also considered are various incorporated documents[1], and amendments[2] to the planning scheme.    The question of whether development proposals in the municipality of Yarra City Council are consistent with this strategic vision and indeed whether the scheme sufficiently expresses this strategic vision is considered.

To this end, a case study approach was used, to identify some controversial cases, and trace the progress of these applications through the planning system.  These controversial cases illustrated that often council’s vision is overlooked due to various weaknesses in the planning scheme itself and also due to state policy that creates tension between councils preferred outcome and the states vision.  Also considered were the various forces at play within the Victorian planning system that often undermine the statutory force contained within local policy.  It is proposed that while local planning policy can ensure its’ strategic vision is met in everyday planning applications, the same cannot be said for larger, controversial applications which highlight the many weakness contained in the scheme.  These weaknesses have been discussed, and possible processes that could be undertaken to ensure that council’s strategic vision is better reflected in future developments have been presented.

2.0        Contents

1.0       Executive Summary. 2

2.0       Contents. 3

3.0       Introduction. 4

4.0       Project Scope. 4

5.0       Methodology. 5

6.0       Findings. 7

7.0       Discussion. 11

The Workings of the Victorian Planning Scheme. 11

Zones and Overlays. 11

Amendments and Incorporated Documents. 12

The problems with the Victorian Planning Scheme. 13

Commentary on the history of the Victorian Planning System. 14

The Appeals System. 16

8.0       Conclusions. 21

9.0       Glossary. 23

10.0     Bibliography. 23

11.0     Appendices. 29

Appendix One: Heritage in State and Local Strategies. 30

Melbourne 2030. 30

Inner Melbourne Action Plan (IMAP) 31

State Planning Policy Framework (SPPF) 32

Planning Scheme. 33

Appendix Two Case Study Summaries. 37

Appendix Two Case Study Summaries. 37

Banco Smith Street Development. 37

Victoria East Street Precinct. 38

3.0        Introduction

The intention of this report is to examine the content of the Yarra Planning Scheme to determine whether statutory decisions are consistent with state and local strategies and in accordance with the council strategic vision. The main features of a planning scheme include the Local Planning Policy Framework[3], Zones, Overlays, while the amendment process provides flexibility whereby changes to the scheme can be introduced through ministerially approved amendments. These documents provide the legislative framework that outlines the regulatory guidelines that must be taken into account by planners when deciding whether to approve a given planning application.

In this report both the positive and negative features of the system are considered through a case study analysis of various planning applications. The case studies investigated were mostly subject to a heritage overlay.  See Appendix 1 for a sample of the kind of restrictions outlined by zone policy in a heritage overlay area.  Also considered is the truth behind the widely reported hypothesis that the Victorian Civil and Administrative Tribunal (VCAT) is setting aside decisions by council on appeal in order to support a pro-development agenda.

4.0        Project Scope

The group was asked to determine if statutory decisions are consistent with the overall state and local strategies by investigating several case studies of planning applications to demonstrate the role of statutory aspects (i.e. zones and overlays etc) on the built environment outcome.

The group elected to narrow the scope by focusing on Heritage Overlays in the City of Yarra.  Four main sites were studied that were subject to Heritage Overlays; 375 Canning St North Carlton, 13-15 Wangaratta St Richmond, 300 Young St, 132 Kerr St and 127-139 Argyle St Fitzroy North, and 132-172 Smith St Collingwood.  A fifth site in the Victoria Gardens precinct, with an environmental overlay, was also studied as it is proving to be a high profile case for the City of Yarra with interesting implications for the subject area.

An interim presentation on the findings was also requested and has been delivered.

5.0        Methodology

Mainstream media articles were reviewed and a walk/drive around the City of Yarra was conducted to help identify sites that were of public interest. A variety of different sites (single residential, multi-unit residential, and mixed use developments) were investigated to develop a broad picture of development in the City of Yarra.

Once preliminary sites were selected they were examined in the following ways:

  • Site visits were conducted
  • VCAT reports were reviewed
  • Council planning application files were reviewed
  • Key stakeholders and interest groups were interviewed including:
    • Statutory Planners City of Yarra,
    • Naomi Keung, Strategic Planner City of Yarra
    • Lorraine Dowsey, Planning appeals coordinator City of Yarra,
    • Celestina Sagazio, Senior Historian Natural Heritage Trust,
    • Jim Holdsworth, Consultant Planner and Academic specializing in Heritage,
    • An academic specializing in the City of Yarra planning scheme.

Key local policy and strategic documents and relevant literature were also reviewed in order to gain an understanding of Heritage and Planning in the City of Yarra.

In an effort to further reduce the scope of the work it was decided that four key sites (375 Canning St North Carlton, 13-15 Wangaratta St Richmond, 300 Young St, 132 Kerr St and 127-139 Argyle St Fitzroy North, and 132-172 Smith St Collingwood) were concentrated on.  This was viewed as the minimum cases required to satisfy the project requirement of looking at “several” sites.  All these sites were considered to involve large and/or complicated developments and exposed more of the complexities of the planning system.  Sites of lesser significance considered for investigation displayed more consistencies with council objectives and decisions were less likely to significantly change on appeal. These sites included 152 & 150 Amess St North Carlton.

A presentation was made on the key sites, which included a discussion that assisted with focusing the direction of the project.

6.0        Findings

The table that follows is a summary of the findings from the cases investigated.  Some key features that the cases shared include:

  • Council did not decide the application outcome in all cases.
  • In many cases the council missed the 60-day decision making period.
  • The decision outcome was not predictable and not consistent with local policies.
  • The interpretation of Heritage Overlay by differing bodies was not clear with Council giving a lot more detail about the reasons for a decision than other bodies.
  • Council did appear to make some effort to follow it’s own strategic direction- shown in the detail provided in the ‘Application of Planning Permit Report by Delegate of the City of Yarra’ reports.  These reports supported their decisions with clauses from council policies and strategic documents.
  • Consolidation policy from the Melbourne 2030 (M2030) policy document was given priority over development restrictive polices like heritage and street character.
  • All the cases were considered large and/or complicated.
Site Zones & Overlays Application Description Key Issues Council Decision Appeal/Decision
132 Kerr St and 127-139 Argyle St Fitzroy North


Heritage Overlay and Mixed Use Zone Large mixed-use development including apartments, offices, cafes and on-site parking with a “land-mark” architectural facade.
  • Building scale (height & bulk) larger than anything in surrounding area.
  • “Signature building” where it should ameliorate with surrounding area.
The council missed the required 60-day period to make a decision.  Council said had it had the opportunity it would not have approved the development for reasons including heritage and street character. The application was approved without amendments by VCAT. It was approved because there were no concerns over heritage and street character, and the design was consistent with M2030 urban consolidation policy, and the structure had architectural merit.
375 Canning St Carlton North Heritage Overlay and Residential Zone 1 Tri-story modern tilt-concrete single residence.  Structure already partially built.

  • Previous applications refused by council and on appeal.
  • New application made design changes in an effort to meet council requirements.
  • Building scale (height & bulk) was out of character with surrounding area.
  • Portion of building of heritage significance demolished and not replaced.
Council failed to make decision in the required 60-day period.  Council said had it had the opportunity it would not have approved the development for reasons including heritage and street character. The application was approved by VCAT even though there were some concerns over heritage and street character because on balance the design changes improved the building sufficiently and an effort had been made to meld what had been built with council requirements.
13-15 Wangaratta St Richmond Heritage Overlay and Residential Zone 1 Multi-unit development to three stories.
  • The building scale (height & bulk) was out of character with surrounding area.
  • It failed to comply with the Rescode and is near to a heritage building.
The application for planning permit was refused by council after the 60-day period deadline was missed. The application was approved by VCAT because:

  • the proposal was  in line M2030 urban consolidation policy.
  • Only failed Rescode on two points, which was acceptable.
  • The heritage building was not that close and structure would enhance the streetscape.
132-172 Smith St Collingwood Heritage Overaly and Mixed Use Zone Substantial mixed-use development including 3 towers, one 9 storeys, 280 apartments, 24 hour supermarket, 400 car spaces, office and commercial spaces.
  • 1600 objections received.
  • Building scale (height & bulk) out of character with surrounding area.
  • Heritage building on site not considered in plans.
The application for planning permit was refused by council after deadlines by both council and developer were missed.  After the notice of appeal was received from VCAT, the council requested the Minister to call in case and to consider the proposed Structure Plan for area. The minister called in case to priority development panel. The Minister approved the application with some changes:

  • A reduction in height and larger setback.
  • Some reconstruction of historic facades

The Minister did not endorse height controls proposed by council in the Structure Plan.

Victoria Street East Precinct – 627 Victoria Street Abbotsford Includes a Design and Development overlay and issurrounded by business and Industrial zones. 10 Storey Mixed-Use development The development proposed will be higher than the current building on the site. Yarra Councils Urban Design Frame work specifies that the current height is the maximum for the site. The application for planning permit was refused by council.  After the notice of appeal was received from VCAT, council requested Minister to call in the case and to consider proposed amendments for the area (C66 and C75). The developer requested the Minister to make the area a Priority Development Zone.  The minister called in the case to the priority development panel (PDP). The PDP released its report stating on amendment C66 “a ten story building cannot be hidden from view, neither can a six story development favoured by council and other submitters.  The impacts of this proposal can be minimised through a reduction of scale by one floor….  The proposal is in line with Melbourne 2030”.

The council still awaits the Ministers decision on amendment C75 and PDZ.

Appendix Two is a brief description of the progression of two of these cases through the planning system: Banco Smith Street Development and the Victoria Street East Precinct Development.

7.0        Discussion

What follows is a discussion of the results of our investigation. It outlines the findings from our cases studies and the relevant workings of the Victorian Planning Scheme.  Discussed are:

  • the main features of the planning scheme including the Local Planning Policy Framework, Zones, Overlays, and the amendment process;
  • the reasons why local policy is unable to provide sufficient statutory controls to ensure that larger developments like those presented in the case studies, satisfy the strategic vision of local councils;
  • the recent history of the planning system that has produced the planning schemes that operate today;
  • systematic flaws in the appeals system, which is often blamed as a tool for fast tracking inappropriate development and possible changes that could provide a better system.

The Workings of the Victorian Planning Scheme

Zones and Overlays.

Various zones cover the land in the metropolitan area, each zone specifying the limitations on development and the specific land-uses permitted within a particular zone category (DSE, 2006c).  There are many categories of zones including, for example, Residential, Business, and Mixed-Use.  Overlays provide an added layer of complexity to the zoning system whereby special land-use areas receive added legislative protection by the implementation of an overlay which specifies limitations on development given the special status conferred on a given area (DSE, 2006d).  For example the overlay system considers important issues such as areas of environmental or heritage significance, or in areas under large scale development design restrictions may be placed on them by the creation of a Design and Development Overlay.

The zone and overlay clauses set out the specific statutory controls that operate within the scheme.  Clauses 32.01 to 37.01 of the scheme cover the provisions outlined by the zone system.  The provisions described by the overlay system are described in Clauses 40 to 45.07.  The contents of zone and overlay policy are standardized across the state of Victoria.

Amendments and Incorporated Documents

The statutory controls contained in a planning scheme are not necessarily inflexible but can be changed by the amendment process (Minister of Planning, 2004).  The planning system needs to allow a certain amount of flexibility, should the opportunity for a beneficial development arise that is not permitted by the current zoning status of the site.  Developers can apply to council to have the particular zone or overlay pertaining to a site re-zoned, more usually to a higher intensity use zone, more conducive to the development proposal. The Minister of Planning must approve the suggested re-zoning before the amendment to the planning scheme can occur (DSE, 2005).  This ability to change the planning scheme often produces positive developments when both council and the developers concur on a proposed amendment.

However, significant problems can arise when council and developers disagree on what represents an appropriate development proposal.  In this instance developers can apply to the Minister to have the planning scheme amended which usually involves a request to re-zone the land to a use that permits more intense development (Birrell, 2005, Buxton, 2005).  In reaction councils usually seek amendments in the form of Incorporated Documents; these documents outline the council’s representation of what they consider to be appropriate development for a given site.  They usually take the form of specific Design and Development overlays for a site, or the inclusion of an Urban Design Framework or a Structure Plan which clearly illustrates the type of development supported by the council (Buxton, 2005).  The Minister must then decide which amendment application he/she considers will secure the best planning outcomes for the site.

This process can be long and arduous for both parties but any attempt to alter statutory policy must necessarily require intensive examination by decision-makers.  For instance, an amendment to a planning scheme can translate into significant financial windfall for developers if their land is re-zoned to a more intensive use.  Decisions regarding what parcels of land should benefit from huge increases in the value of land due to a re-zoning clearly cannot be taken lightly.  This system produces significant winners and losers, and therefore warrants the complex and arduous process involved in introducing any amendments or incorporated documents to a planning scheme.

The problems with the Victorian Planning Scheme

An examination of the documents that comprise the planning scheme illustrate that their statutory content is very flexible and open to interpretation. There is very little incorporation of clear statutory controls that place clear limitations on the type of development that should occur in each zone (except for Residential Zones that benefit from the statutory controls contained in Rescode). Appendix One is a summary of Heritage controls in the City of Yarra’s planning scheme.  The language used is not prescriptive and therefore its interpretation has proved unpredictable.  The literature reviewed describes the simplicity that defines the Victorian planning system as very problematic, and claims that this flexible system has produced ineffective planning outcomes reflected in the high numbers of appeals lodged against council decisions.  Policy is so flexible it seems, that developers can find support in local policy for a development even if local council has rejected their application.  Evidence of this is provided by the cases studies. Planning application outcomes were unpredictable and not consistent with the council’s interpretation of local policy while supportive of the developer’s intentions.

Buxton (2005), Goodman (2004), and Birrell (2005), claim that the Victorian system does not provide developers with the clear strategic guidelines necessary to secure the strategic vision of local councils. The strategic vision of councils is provided for in the Local Planning Policy Framework. However this document is intended to provide only strategic goals that will hopefully influence developers. These local frameworks do not influence the schemes statutory content contained in the zone and overlay clauses, and as such can only be used to portray council’s vision but cannot control development. Councils attempt to secure their strategic vision through the inclusion of ministerial approved incorporated documents, in the form of Structure Plans or Design and Development Overlays, which do enjoy statutory force. The case studies (see Appendix Two for full descriptions of relevant case study examples) illustrate that the Minister will not approve these amendments while they contain mandatory controls and will request that these controls are refined to ensure a ‘discretionary’ rather than a ‘mandatory’ document.

The emphasis in the planning scheme on discretionary planning controls is a relative recent addition to the Victorian system. A discussion of the political circumstances that produced this system and the history of the current Victorian planning scheme is briefly outlined below.

Commentary on the history of the Victorian Planning System.

In the 1990s the Victorian state government under Kennett attempted to apply Public Sector Management Systems[4] to local councils (Buxton, Goodman, 2005).  It was believed that Melbourne’s local councils were inherently inefficient and fragmented and that major restructuring of the councils was warranted.  Then in 1995 the Kennett government amalgamated 220 Melbourne councils, and amid enormous controversy the councils were sacked.  Local councils were then reformed with the number of councils reduced from 220 to 78 (Buxton, Goodman, 2004).   Prior to the sacking of the local councils, each council had tailored local policy to suit the needs of their given jurisdictions.  The Kennett government considered this approach to discourage development, as a developer had to deal with different legislation for each municipality.  The planning zone and overlay system we see today was introduced as a standard across all councils to reduce complexity and improve efficiency (Buxton, 2005, Birrel, 2005).  The intention was to encourage the economic development of Victoria and the Planning System put in place by the Kennett government clearly reflects this pro-development vision (Gleeson and Low, 2000).

While councils were free to develop individual planning schemes, the actual statutory by-laws were standardized across the state.  The zones and overlays system became the central planning tool upon which planning decisions were made.  Our analysis of the documentation relating to specific zone and overlays betray a commitment to simplicity that provides enormous scope for developers to interpret this legislation.  Unsurprisingly enough, the introduction of this new legislation was closely followed by a spate of controversial development that was approved by either councils or VCAT on the basis that development met the requirements of planning legislation.   This legislation however was characterised by a marked lack of specific requirements.  Communities quickly became aware of the lack of controls written into the zone and overlay system and began to apply pressure to see reforms.  Indeed, some attribute Premier Bracks election success to be partially based on his promise to introduce more rigorous planning by-laws.  However, once in power, this promise has translated into the introduction of Rescode that applies only to residential developments, while larger developments continue to operate with relatively little planning restrictions placed on them (Nankervis, 2003).  All of this change has created extra work for councils possibly resulting in the high number of failures to determine planning applications within the 60-day limit[5]. Therefore councils have been attempting to introduce some sort of planning control over their jurisdictions by devising specific clauses such as Structure Plans for areas experiencing significant development pressure and with limited resources.

There is little evidence that the current planning system displays a strategic vision; i.e. the planned vision of local councils is not expressed in development outcomes.  Councils are limited by simplistic pro-development state policy and the councils strategic vision contained in their strategic statements does not receive the statutory force enjoyed by zone and overlay documentation.  This lack of clear guidance has resulted in developers submitting applications that councils and communities regard as unacceptable, which in turn has produced the large number of controversial appeal cases experienced in Victoria in recent years.

The Appeals System.

The appeals system introduces another significant element in the Victorian planning system that can be said to exacerbate the problems experienced by councils in transferring their strategic vision unto the built environment. While statutory documents do not sufficiently take into account councils strategic vision, it seems that developers can significantly by-pass councils vision via the appeals process. This approach has worked for developers on a number of the case study sites including the Fitzroy North “Cheesegrater’, Wangarratta St and the “Banco” Smith St Development.

It is often assumed that the extensive rights enjoyed by applicants to appeal planning decisions are symptomatic of a system that is tainted by a pro-development agenda (Goodman, 2004).  However, while this opinion may have some foundation, the appeals system is not solely responsible for the community’s estimation that the Victorian planning system is inherently pro-development.  This pro-development bias penetrates most Victorian planning documents as illustrated in the previous discussion of these documents.

Although the appeals process in Victoria betrays some fundamental flaws, the right to third-party appeal rights is a luxury, which is not enjoyed in many other Australian states.  In Victoria, applicants have recourse to appeal at the Victorian Civil and Administrative Tribunal (VCAT), who can ultimately over-turn council’s decision. The graph below shows the extent of this in the City of Yarra with 65% of decisions by council to refuse to grant a permit being later affirmed by VCAT in the 2nd Quarter of 2006 (Dowsey, L, 2006).

(Dowsey, L, 2006)

However whether VCAT is pro-development or not is not the central issue, it is more important to uncover the provisions governing VCAT that allows the tribunal the option to disregard council’s decision.    VCAT hears “de novo”; therefore the tribunal has the legal right to disregard council’s deliberations regarding a given application.  However, in practice VCAT will often look at council policy when making decisions.

The Tribunal also seems to hold ‘Melbourne 2030’ in high regard and sometimes rules in favor of intensive development in reaction to the consolidation policy described in this document (Goodman, 2004, Birrell, 2005, Buxton, 2005).  It is interesting to note that Melbourne 2030 also includes Policy Direction 5, “A great place to be” which identifies street character and heritage as objectives.  All the case studies show that the pro-development, consolidation policy is given priority over development restrictive polices like heritage and street character.  In theory they should have equal weighting.  Our case studies on Wangaratta St in Richmond and in Fitzroy North are examples of where VCAT has used the Melbourne 2030 consolidation policy to support development against council recommendations that included protection of heritage values.

The use of “Melbourne 2030” to support a decision to approve intensive development has proved very problematic, as this document amounts to a vision statement outlining the states government policy for metropolitan Melbourne.  It is considered that this policy document, as a vision-statement, must necessarily be vague and therefore it is inappropriate that it should be used in consideration of complex planning applications (Mees, 2003).  However, this document has legal standing and therefore can be used in the decision-making process.  While the aspirations described in ‘Melbourne 2030’ are to be welcomed, it is important that should such a document be used in the approvals process, then this document should develop proper statutory guidelines..  This issue illustrates one of the central failings of the Victorian Planning System and VCAT, that a broad vision-statement regarding general aspirations for metropolitan Melbourne should be used as extensively as the basis for VCATs reversal of council’s decisions.

This use of ‘Melbourne 2030’ introduces another interesting feature of the Victorian appeals system.  This aspect of the system refers to the Ministers of Planning’s ability to “call-in” cases and the significant use of “Melbourne 2030’ in his deliberations and the deliberations of his advisory committee, the Priority Development Panel (PDP) (Minister of Planning, 2004). The use of ‘call-in’ process is activated most often in the amendment process.  Should the council and developers concur that a re-zoning of land is necessary, they will request the minister ‘call-in’ the case to decide if the amendment should be approved.  However, the ‘call-in’ process is also used when council and developers disagree on the best outcomes for a particular site.  In this instance developers will request the Minister to consider an amendment to re-zone land to a more intensive use or request the implementation of a Priority Development Zone (PDZ).  In reaction to this circumstance the council will devise a Structure Plan or a Design and Development Overlay pertaining to the land in question and seek the Ministers approval to have these documents incorporated into the planning scheme. Therefore the Minister is asked to decide between two different visions for the site and the inherent confrontational nature of this process generally will generate a lot of controversy in the communities affected by the proposed development.

The Banco Development in Smith St was subject to this process.  Here the Minister approved the development against council recommendations for height controls outlined in their proposed Structure Plan. The Minister stated that the development reacted well to the consolidation policy contained in “Melbourne 2030”. Similarly, the Victoria East Street Precinct has activated the ‘call-in’ process whereby the developers have requested a PDZ and council has submitted a Design and Development Overlay. The council and the developer currently await the Ministers decision on this case. However, advice so far offered to the Minister by the panel, again gave preference to “Melbourne 2030’ over local policy.

Despite the continued dominance of “Melbourne 2030’ as the policy document of choice in the appeals process, the use of the Priority Development Zone via the ‘call-in’ process represents an arguably excessive extension of the powers normally held by a Minister. This zone was devised to regulate sites of such significance that they are deemed sites of ‘state-significance’[6] by the Minister, and therefore warrant state control over development whereby the Minister is the final authority in these cases.  In this instance while structure plans and specific overlays pertaining to the site may be considered by the Minister and the PDP, the Minister can decide to disregard the controls outlined in these documents.

The appeals process used in the United Kingdom (UK) provides an arguably more democratic alternative to the Victoiran planning system. In the UK the Planning Inspector must make his decision in controversial cases based on whether the council’s decision reflected the themes outlined in their policy (Salet et al. 2003).  If council’s decision is in accordance with local policy, then the Planning Inspector cannot over-rule the council’s decision.  In this system the Planning Minister cannot disregard local policy and the legal legitimacy of these documents.  The UK system is similar to the Victorian one in that it was also devised to encourage development.  However, the UK system has ensured that legalities of councils as elected bodies and the legality of policy cannot be disregarded.

The main problems associated with appeals process includes VCATs ability to decide on cases ‘de novo’, and excessive powers of intervention held by the Minister via the implementation of a PDZ. However, the appeals process is also significantly encumbered by the lack of statutory guidelines provided in local policy. Both VCAT and the Minister are hindered in the decision making process by developers ability to meld the inherently flexible local policy to suit their needs. Therefore the Victorian planning system is finally marred by ineffective local policy that can be interpreted to suit developers’ desires during the appeals process. It seems the Kennett government has indeed succeeded in ensuring that ‘flexibility’ would define the Victorian planning system.

8.0        Conclusions

In conclusion, the problems associated with the Victorian planning system can be summarised as:

  • Policy has been developed with an emphasis on simplicity and low level of statutory controls that reflects the pro-development bias of successive state governments.  As such, there has been little certainty in the decision making process.
  • Councils have generally not had the opportunity to develop Structure Plans or Design and Development Overlays for areas that attract proposals for large scale development.  However, there is a recent emphasis among councils to get these documents in place prior to development. These may provide more certainty in the decision making process.
  • As a vision-statement for the entire metropolitan area Melbourne 2030 lacks any meaningful level of statutory guidance as to how consolidation should occur.  This document can and has been used on appeal to support developers’ desires to see very large buildings in sites deemed inappropriate by council. If decisions at appeal are to based on “Melbourne 2030” then more detail is required to ensure more certainty in the decision making process.
  • While more often than not VCAT and the Minster will take local policy into account, it remains that they are finally not legally required to do so (in PDZ cases referred to the Minister).  It is very necessary that both VCAT and the Minister be obliged to consider local policy in their deliberations; this ensures that the democratic process that defines the existence of local council and their policy are not overlooked in the appeals process.

While some flexibility in the system should be welcomed, the level of flexibility currently enjoyed by developers in the Victorian system is too extensive.  It seems that the Victorian system was founded on the belief that flexibility is crucial to ensuring that development projects are encouraged in the state.  However, it is likely that developers would welcome higher levels of certainty in the system.  If realistic boundaries are in place prior to development, developers can work within these restrictions and avoid lengthy delays as large projects invariably must resort to utilizing the lengthy appeals process.  It should also be noted that councils are more the willing to bend the specifications of Structure Plans or Design or Development Overlays (DDOs) in the name of ensuring positive developments.  However the use of these documents would reduce the number of appeal cases if developers understood from the outset council’s vision of what equated to reasonable development.

The increased activities among councils to develop Structure Plans and DDOs would suggest that future developments will not be marred by the current levels of uncertainty that exist in the system.  However it is important to point out that our analysis of our case-studies revealed that often the Structure Plans or DDOs that Minister requests do not specify height restrictions and that ‘prescriptive’ documents will not garner Ministerial approval.  Therefore, again flexibility emerges as the key catch phrase of the Victorian planning system.  Appropriate development will not necessarily occur with the level of ‘flexibility’ currently in our planning system.

9.0        Glossary

M2030 – Melbourne 2030 policy document

PDP – Priority Development Zone

PDZ – Priority Development Zone

VCAT- Victorian Civil and Administrative Tribunal

10.0   Bibliography

Birrell, B. (ed).  (2005). “Melbourne 2030:  Planning Rhetoric versus Urban Reality”.  Melbourne, Monash University Press.

Buxton, M., Budget, T. and Boyle, R. (2000).  “Victoria’s Kennett Government: It’s Impact on Urban and Regional Planning”.  Urban Policy and Research.  Vol: 19: 3.  367-78.

Buxton, M., and Tieman, G. (2005).  “Patterns of Urban Consolidation in Melbourne: Planning Ploicy and Growth of Medium Density Housing”.  Urban Policy and Research, Vol: 23: 2. 137-157.

Buxton, M., Goodman, R., and Budge, T. (2005).  “Planning and Deregulation: The Failure of the new Victorian planning system”. Australian Planner, Vol: 42: 2.  53- 70.

City of Yarra. (2003). “Delegation Report on Smith Street Development”. accessed August 19 2006.

City of Yarra. (2006(a)). “Planning Scheme Amendment C66”.  accessed September 3 2006.

City of Yarra. (2006(b)). “Planning Scheme Amendment C75”.  accessed September 3 2006.

City of Yarra. (2006(c)). “Planning Scheme Amendment C76”.  accessed September 3 2006.

City of Yarra.  (2006(d)).  “Smith/ Wellington Streets Mixed Use Precinct: Urban Design Framework”.  accessed September 3 2006.

City of Yarra. (2006(e)).   “Victoria Street East Precinct, Richmond Urban Design Framework”.  accessed September 3 2006.

Colebatch, K. (2005).  “Public Management and Departments: Contemporary themes- future agendas”.  Australian Journal of Public Administration.  Vol: 641.  1-15.

Dept. of Sustainability and Environment.  (2006). “Referral of projects to the Priority Development Panel’. Melbourne,  DSE. accessed 5 August 2006.

Dept. of Infrastructure.  (2002). “Melbourne 2030: Planning for Sustainable Growth”.  DoI, Melbourne.

Dept. of Sustainability of Environment. (2006 (a)). “State Planning Policy Framework. accessed 10 September 2006.

Dept. of Sustainability of Environment. (2006 (b)). “Yarra Municipal Strategic Statement”. accessed 10 September 2006.

Dept. of Sustainability of Environment. (2006 ©). “Yarra: Zones”. accessed 10 September 2006.

Dept. of Sustainability of Environment. (2006 (d)). “Yarra: Overlays”. accessed 10 September 2006.

Dept. Of Infrastructure. (2005).  “Planning scheme amendment information.” DoI, Melbourne.  accessed 6 July 2006.

Dowsey, L, 2006, Quarterly Report Figures, City of Yarra

Huges, O. (2006). “Public Management and Administration: an introduction”.  New York: Palgrave.

Gleeson, B. and Low, N. (2000).  “Australian Urban Planning: New challenges, new agendas”. Australia: Allen & Unwin.

Goodman, R., and Maloney, S.  (2004). “Activity Centre planning in Melbourne revisited”.  Australian Planner, Vol: 41: 2.

Low, N. (1991).  “Planning Politics and the State”.  Australia: Allen & Unwin.

Mees, P. (2003).  “Pattersons Curse: the attempt to revive metropolitan planning in Melbourne.”  Urban Policy and Research.  Vol: 21: 3.  287-299.

Minister of Planning.  (2005).  “Referral to the Priority Development Panel: Victoria Street East Precinct.” Melbourne, 3000. Accessed 8 August 2006.

Minister of Planning.  (2003).  “Referral to the Priority Development Panel: Smith Street/ Banco Development.” Melbourne, 3000. Accessed 8 August 2006.

Minister of Planning.  (2004).  “Ministerial powers in intervention in planning and heritage matters: Victorian Civil and Administrative Tribunal application for review P964/2004: Reasons for decision to use power of intervention.” Melbourne, 3000. Accessed 8 August 2006.

Nankervis, M. (2003).  “Rescode- Victoria’s New Residential Planning Tool”.  Australian Planner, Vol: 40: 2.

Patterson, A., and Pinch, P. (1995).  “Hollowing out the local state: compulsive competitive tendering and the restructuring of the British public services sector”.  Environment  and Planning. Vol: 27: 9. 1437-1457.

Salet, W., Thornley, A., and Kreukels, A. (eds). (2003).  “Metropolitan Governance and Spatial Planning: comparative case studies of European city-regions’.  London: New York: Spon Press.

Priority Development Panel.  (2004). “Executive Summary of Ammendment C66.”

Save our Suburbs. (2006). “Priority Development Inquiry Victoria Gardens: Save our Suburbs Submission”. Accessed 3 August 2006.

Sturges, G. (2001). “Bureaucracy”, in Shafritz, J., and Hyde. A.  (eds). The Enabling State: people before bureaucracy. Annadale, NSW: Pluto Press.

Victorian Civil and Administrative Tribunal. (2003).  “Tarra Nominees v Yarra City Council, (2003), VCAT 1952”. Accessed 25 August 2006.

Victorian Civil and Administrative Tribunal. (2003).  “Bayview Developments Pty Ltd v Yarra City Council & Ors, (2003), VCAT 1063”. Accessed November 2006

Victorian Civil and Administrative Tribunal. (2004).  “Pisanelli v Yarra City Council, (2004), VCAT 2033”. Accessed November 2006

Victorian Civil and Administrative Tribunal. (2004).  “Pisanelli v Yarra City Council, (2004), VCAT 2133”. Accessed November 2006

Victorian Civil and Administrative Tribunal. (2003) “Ashlyn Enterprises Pty Ltd v Yarra City Council (2003) VCAT 87” Accessed November 2006

Victorian Civil and Administrative Tribunal. (2003) “Ashlyn Enterprises Pty Ltd v Yarra City Council (2003) VCAT 87” Accessed November 2006

11.0   Appendices

Appendix One: Heritage in State and Local Strategies

75% of the City of Yarra is covered by a Heritage Overlay (Statutory Planner City of Yarra, 2006). The Heritage Overlay in the City of Yarra can be summarized with two key points:

Heritage Overlay is the only devise in the Planning scheme that is a demolition control.

Buildings in a heritage overlay area must fit into the urban context – streetscape however reproduction architecture is not supported

Heritage is covered in broad terms in a number of state and local planning documents including: the State Planning Policy Framework (SPPF), the Yarra Planning Scheme, the Local Planning Policy Framework (LPPF) and Municipal Strategic Statement (MSS).  Heritage is also considered in Melbourne 2030 and the Inner Melbourne Action Plan.

Melbourne 2030

Policy Direction 5, A great place to be identify street character and heritage as objectives:

Clause 5.2Recognise and protect cultural identity, neighbourhood character and sense of place”

Initiatives under this Clause include:

“5.2.1 Research the relationship between sense of place, urban character, landscape character and neighbour-hood character as a basis for improvements to the planning system

5.2.2 Strengthen tools in the planning system to ensure development responds to its context in terms of built form, landscape character and cultural identity”

Clause 5.4 “Protect heritage places and values”

Initiatives under this Clause include:

“5.4.1 Work with relevant agencies to enhance respect and understanding for Indigenous peoples and culture, and develop ways to recognise important Indigenous cultural issues within the planning system

5.4.2 Promote a consistent framework for assessment of heritage places and refine guidelines for the assessment of development proposals under the Heritage Overlay

5.4.3 Provide guidance to local government and other agencies on preparing statements of heritage significance

5.4.4 Ensure that planning schemes reflect the full extent of heritage values in each municipality

5.4.5 Establish an awards system to encourage and recognise good heritage conservation practice

5.4.6 Provide practical assistance and support for the adaptive reuse of heritage buildings whose use has become redundant”

The implementation Plan for Housing includes heritage and street character as objectives:

Appendix 1, Neighbourhood Principles … “a strong sense of place created because neighbourhood development emphasises existing cultural heritage values, attractive built form and landscape character”…

Inner Melbourne Action Plan (IMAP)

The Inner Melbourne Action Plan (IMAP) sets out strategies and actions aimed at strengthening the liveability, attractiveness and prosperity of the region and respond to the demands of Melbourne 2030, the State Government’s blueprint for managing sustainable growth and change across metropolitan Melbourne and surrounding regions.

Action Plan

The IMAP Vision includes ”…A region where the 19th century character informs modern development …”

The IMAP Guiding Principles include “A Sense of Place”

“It celebrates and strengthens the unique living environment and characteristics of the Inner Melbourne Region. This means respecting the existing character of the built environment of the region’s distinct neighbourhoods and activity centres and ensuring the redevelopment of major sites complements the region’s historic character.”

The following strategies have been identified to achieve the above vision for IMAP:

“Celebrate the unique and concentrated 19th century heritage of the Inner Melbourne Region.”

Action for implementing the strategy include:

1.1 “Inner Melbourne statement of significance to include recognition of Inner Melbourne’s unique 19th century heritage.

Develop and document a common understanding of the structure, character and significance of Inner Melbourne to inform local policy and design, including its contribution as a 19th century city to the tourism industry and visitor interest, and its selection as a residential location.”

1.3 “Built form controls

Work towards introducing built form controls that will protect the heritage of areas of Inner Melbourne.”

State Planning Policy Framework (SPPF)

Heritage Overlay: Clause 22.02 Development Guidelines for Heritage Places

Clause 15.11 (Heritage) has as its objective the assistance of “conservation of places that have.. aesthetic, historic. Cultural…or social significance… as a means of understanding our past, as well as maintaining and enhancing Victoria’s image and making a contribution to the economic and cultural growth of the State.”

Clause 15.11 also provides: “General implementation:

Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development.  These include:

Important buildings, structure, site areas, landscapes, towns and other places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria”

Planning Scheme

Clause 19 of the planning scheme relates to Design and Built Form, the objective of this clause is as follows:

“ To achieve high quality urban design and architecture that:

reflects the particular characteristics, aspirations and cultural identity of the community;

enhances livability, diversity, amenity and safety of the public realm; and

promotes attractiveness of towns cities within broader strategic contexts.”

Within this clause, there are nine principles which a design should have regards to including well as context, the public realm, landmarks/views/vistas, pedestrian spaces, consolidation of sites and empty sites, light and shade, energy and resource efficiency, architectural quality and landscape architecture.

Heritage Overlay

Clause 43.01 of the Yarra Planning Scheme details controls for heritage places.  Permits are required for demolition of a heritage place or to carry out works and there are Development Guidelines for Heritage Places that must be applied.
Local Planning Policy Framework

Municipal Strategic Statement

The Municipal Strategic Statement provides strategic guidance to use and development across the municipality.  The City of Yarra Municipal Strategic Statement is currently under review with the Minister.  In it are listed sites designated for consolidation.  These have been located in industrial zones away from Activity Centres, which in general have significant heritage and cultural value.  The following is a discussion of relevant components of the MSS to Heritage:

Element 1 Urban Design Framework (Clause 21.05.01)

Clause 21.05-1 (Element 1) considers an Urban Design Framework for the municipality.  Selected relevant objectives include:

An urban fabric that maintains the City’s prevailing nineteenth century heritage character;

A city with a human scale achieved through the careful consideration of built form, design treatments, infrastructure and landscaping;

Streetscapes that maintain a consistent scale and rhythm where site consolidation or redevelopment occurs;

New development, which respects the “desired character” of existing neighborhoods as defined by Yarra’s Urban Character Strategy;

Innovative contemporary architecture that is environmentally responsive an, related to the streetscape and is energy efficient; and

People spaces and foci that provide a safe, attractive and vibrant public domain and a sense of community,

Strategies to achieve this objective include ensuring new development contributes positively  to the urban character and amenity of Yarra through:

Maintaining the human scale of the City;

Ensuring new development is respectful of the prevailing historic character; and

Ensuring new development achieves a high level of amenity and preserves the amenity of neighboring properties.

Element 2 (Clause 21.05-2) Residential Land Use and Development

Clause 21.05-2 (Element 2) considers residential development within the municipality by also looking at broader concepts including impacts on the existing heritage fabric and includes the following objective:

Preservation of the established urban character and strong ‘sense of community’ associated with Yarra’s distinct residential neighborhood.

Strategies to achieve this objective include:

a)     Manage the nature of new residential development in different parts of Yarra, based on…heritage and urban character.

Require ‘infill’ residential development to reinforce the prevailing built form of the neighborhood, particularly in relation to development density and height, as identified in the Urban Character Study (1997).

Element 7 (Clause 21.05-7) Heritage

Clause 21.05-7 (Element 7 highlights the following relevant objectives:

Conservation of places of aesthetic, archeological, architectural, cultural, historical, scientific and social significance which reflects Yarra’s historic development; and

a)     Ensure that our heritage places maintain their integrity through; the conservation of individual sites and areas of cultural heritage significances, managing future development on and around heritage places.

Implementation of this strategy is done through the application of the heritage overlay and Local Policy- Development Guidelines for Heritage Place to ensure the integrity of the heritage place is conserved and enhanced.

Appendix Two Case Study Summaries

Here we briefly describe the progression of two of our case-study proposals through the planning system.  We isolate the core events that illustrate the problems associated with the flexibility inherent in the Victorian Planning System.

Banco Smith Street Development.

April 2004: Planning application lodged with Yarra Council for 132-172 Smith Street and 63-71 Little Oxford Street.  Proposal included 3 towers up to 9 storeys, 200 apartments, 24 hour supermarket, and 400 car spaces.  1600 objections received by council.

June 2004:   – Council failed to determine the application within the 60 days period.

Due to enormous number of objections, council decide to allow Banco to re-submit revised plans.

Council begin to work on Structure Plan for the Smith Street- Wellington Street area (amendment c76).

Jan 2005:   – Banco misses its deadline to re-submit revised plans requested by council.

Feb 2005: – Yarra council refuses the Banco application.

March 2005: – Yarra Council receives notice from VCAT that Banco has lodged an


Council requests the Minister to ‘call-in’ the case and to also consider amendment c76.

Feb 2006:   – Minister approves the application reducing the height of the 3 buildings 9 storeys to between 5, 6, and 7 storeys.

The Minister returned the Structure Plan to Yarra Council to make changes stating “any built form control should be discretionary not mandatory”.

Minister also stated that the DDO was appropriate and approved this document but stated that “height controls stated by council required further refinement.”

The Minister concluded that “the building is entirely consistent with the strategic intent of Melbourne 2030.”

Commentary: This case clearly illustrates the problems associated with the Planning System.  We see that the developers took every opportunity to use the appeal system to get their proposal approved.  We also see that Yarra Council was not prepared for this application and had to rush through a Structure Plan and a DDO after the event.  But most significantly we discover that while the Minister approved the Structure Plan and the DDO, the Minister ensured that these documents cannot specify limits for development when he insisted that the documents be “discretionary” and through his rejection of Yarra’s proposed height limits.  One must question the value of a Structure Plan that is discretionary in nature and doesn’t specify height limits.

Victoria East Street Precinct.

June 2003: Tarra Nominees lodge application for a 10 storey redevelopment of the Melbourne Fire Brigade site.  They have been consolidating land in the area for some time and approached council with their Structure Plan detailing their vision for the area, which includes the construction 3 towers along the Yarra River edge.  Council prepared amendment C66 to introduce built form guidelines for non-heritage areas, including the Yarra River Corridor.  Council also prepare an Urban Design Framework (C75) for the Victoria East Street Precinct area.

March 2004: Yarra Council refuse the Melbourne Fire Brigade application.

April 2004: Tarra Nominees apply to VCAT for a review of the council’s decision.

Aug 2004: Priority Development Panel advises the Minister to approve C66, but qualifies council’s submission stating that ‘the objectives, detail, and decision guidelines of the Yarra River Corridor Urban Design Guidelines should all be absorbed into either the MSS, the local policy of the schedule to the DDO and, as a consequence, the guidelines should be abandoned.”

Nov 2004: Council asks the Minister to ‘call-in’ the case and to consider their proposed amendments.  Amendment C66 is approved by the Minister subject to the recommendations of the PDP.  Simultaneously Tarra Nominees request the Minister to re-zone the area to a PDZ.

Nov 2005: Minister ‘calls-in’ the case and refers it to the Priority Development Panel.

Aug 2006: PDP releases its report stating “a ten storey building cannot be hidden from view, neither can a six storey development favoured by council and other submitters.  The impacts of this proposal can be minimised through a reduction of scale by one floor….  The proposal is in line with Melbourne 2030”.

To date: Council awaits the Ministers decision on C75 and PDZ.

Commentary: In this case we see that the Minister did approve C66 however the council were told to abandon the specific design guidelines for the area by absorbing these guidelines into existing council policies.  It would seem that both the Minister and the PDP are not overly enthusiastic to see the Yarra River Corridor subject to prescriptive guidelines.  The PDPs report released in Aug 2006 would also betray a bias toward the developer.  It remains to been seen what shall eventuate from this case but it will be interesting to see if the Minister will finally favour councils C75 or whether he will re-zone the land thereby taking the decision into his own hands.

[1] Incorporated documents can include Federal guidelines on building regulations, or can also include specific Structure Plans or Design or Development Overlays that the council has developed for sites within their jurisdiction that require specific planning controls pertaining to them.

[2] The amendment process allows a council to change the planning scheme should the current controls require alteration, as the policy is no longer reactive to current planning issues.  The amendment process also allows for an area within the council’s ward to be re-zoned to facilitate new development that might be disallowed under the conditions of the sites current zone status.

[3] Local Planning Policy Framework provides strategic guidance to use and development across the municipality.

[4] Public Sector Management employs neoliberal ideology that is concerned with realigning all levels of the economy and governance in accordance to the dictates of the global free market economy (Low, 2000, Gleeson, 1998, Salet, 2003).  Corporate business mentality is applied to the operations of government in the name of transferring the efficiencies enjoyed by the private sector to the public sector (Colebatch, 2005, Hughes, 2006).

[5] The case study findings show that all cases studies failed to make a decision in the required period.

[6] The City of Yarra has the most number of developments that have been presented to the Priority Development Panel because of theme being of State Significance.  (Dowsey, L, 2006)


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