PPV Volume 10 No 2

1. Monash open space contributions policy gets final approval – but a reduced rate

It may be recalled that in Monash C148 Interim Report (PSA) [2020] PPV 23 the Panel issued an interim report which recommended that Council review the Amendment documents and undertake the following additional work:

  • Develop an implementation plan either as part of the Monash Open Space Strategy or as a separate document, which nominates precincts in which land acquisition will be sought and projects and works in open spaces with cost estimates.
  • Use the implementation plan as the basis for the calculation of an open space levy rate in place of the 30 square metre macro-provisioning standard.
  • Develop a detailed justification for the application of the same open space levy rate to residential and non-residential subdivisions.
  • Clarify the use and meaning of community open space in the Monash Open Space Strategy and Clause 22.15.
  • Review the areas designated as public open space gaps in Map 1 in Clause 22.15.

The Panel recommended that once this further work is complete Amendment C148 should be re-exhibited. Following the Panel’s interim report, Council commenced preparing the further strategic work recommended by the Panel. In September 2021, Amendment C148 lapsed and a new amendment would be required to progress any future proposed changes to the public open space contribution rates in the municipality.

In response to the interim C148 Report, Council submitted that it undertook the following work to prepare Amendment C168mona, considered by the Panel in MonashC160mona (PSA) [2023].

  • Development of an implementation plan as part of the updated (Monash Open Space Strategy 2021 (MOSS21), which used the precincts nominated in the MOSS21 and costed land acquisition and works in open spaces.
  • Using the implementation plan as the basis for the calculation of a public open space levy rate in place of the 30 square metre macro-provisioning standard.
  • Development of a detailed justification for the application of the same open space levy rate to residential and non-residential subdivisions, which has been included in the Implementation Report.
  • Clarification of the use and meaning of community open space in the MOSS21 and deleted its reference from proposed Clause 22.15.
  • Review the areas designated as public open space gaps in Map 1 in proposed Clause 22.15.

Council submitted that it prepared the Implementation Plan to identify and cost improvements and additions to the open space network in response to projected population growth. The Plan was prepared as recommended by the interim C148 Report and provides for the following:

  • Identification of a range of land acquisitions and open space improvements required to service open space needs of an additional 45,000 residents (primarily in higher density development) forecast for the municipality between 2021 and 2036.
  • Details of the costing of these improvements on a precinct by precinct basis.

Council advised that the improvements identified in the Implementation Plan comprise approximately $850 million in open space works to be undertaken by 2036, with $606 million apportioned to new development and $244 million to existing. Of the $850 million:

  • Approximately $805 million is for new open space acquisitions and works.
  • Approximately $45 million is for improvements to existing open space, including improvements intended to increase the carrying capacity.

The $805 million is intended to finance the acquisition of 25.1 hectares of land with $573 million (71.1 per cent) of this cost apportioned to new development and $233 million (28.9 per cent) to existing. Based on these figures, Council submitted that, depending on the density of new development the calculated open space contribution rate would be between 13.23 per cent and 15.57 per cent which:

…is calculated based on the ‘basket’ of improvements identified and apportioned to the future community and the value of land that is expected to be required to accommodate the growth forecasts and as shown in the Implementation Plan.

Nevertheless, Council proposed that the contribution rate be reduced to 10 per cent, based on what was proposed in Amendment C148. Council submitted that there is no defined methodology for apportioning open space costs between new and existing development and the principles it used to underpin the new rate were:

  • The City of Monash is considered a single planning unit for open space planning purposes and that Clause 53.01 allows for POS contributions collected to be spent anywhere within the municipality.
  • All residents (existing and future) of the City of Monash are entitled to enjoy access to a reasonable standard of open space at a given horizon year, and planning for future open space acquisitions and upgrades should seek the most equitable distribution of open space services across the municipality.
  • An inclusionary requirements approach, which was endorsed by the Panel in Amendment C148 (when subject to appropriate justification), has been adopted. This means all development regardless of its location in the municipality and whether it be residential or commercial in nature should equip itself with sufficient space to meet its needs and this can be through land or cash in kind contributions.

Council added that these factors were similar but not identical to those accepted by the Amendment C286yara Panel.

The Housing Industry Association (HIA) and a number of major developers raised concerns with the Amendment, particularly in relation to the standard application of the 10 per cent contribution.

A planning expert gave evidence called on behalf of the major developers and submitted that the Amendment was fundamentally flawed because it has:

  • Not appropriately or satisfactorily addressed the Panel’s conclusion that the same rate of open space levy is not justified across residential, industrial and commercial land uses.
  • Persisted in proceeding on an incorrect reading and interpretation of growth area performance targets for open space provision as justification that 10 per cent net developable land should be sought as an open space contribution for all development regardless of whether the subdivision is for residential, industrial or commercial use / development.
  • Relied on an assumption that “public open space has the same implications for usage and need regardless of whether it is commercial, residential or industrial land use” without analysing or testing whether that should translate into the same quantity, accessibility or form.

The Panel considered that the Amendment had strategic justification and that it was a reasonable proposition that projected new residential development should contribute to that open space and a review of the open space levy rate was appropriate.

However, the Panel found that the calculation of the open space levy rate over states the contribution required by new development and the Panel did not agree that a 10 per cent rate was justified. It stated:

The Panel concludes that there has not been sufficient justification to apply the rate of 10 per cent particularly since that rate has been effectively calculated on residential development. Nevertheless, the Panel accepts Council’s submission that the conversion of non-residential use to residential use may increase demand for open space but not be captured by the subdivision provisions. For this reason and those detailed below the Panel accepts that an increase in the non-residential rate is appropriate.

The Panel considered a standard 7.61 per cent contribution was acceptable on the basis of the open space projects identified in the Monash Open Space Strategy, the cost of land to be acquired and apportionment. It stated:

A rate of 7.61 per cent is supported by the Panel and given this rate is below the proposed 10 per cent the Panel agrees that it can be applied to residential and non-residential subdivisions. The Panel acknowledges that this rate is lower than exhibited, however, it provides Council with a starting point to commence its acquisition program. If the acquisition program is successful, or residential and non-residential development and population pressures increase beyond projections, Council can use the evidence it acquires from implementing the MOSS 2021 strategy as a basis to seek a further change to the open space levy rate in the future.

Other major conclusions reached by the Panel included:

  • Reaffirmation of the C148 report that the treatment of the whole municipality as a single planning unit was appropriate.
  • A single rate for residential and non-residential subdivisions was appropriate on the basis of the existing requirements in the scheme require a 5 per cent contribution and that some subdivisions will effectively convert non-residential use to residential use.
  • Council’s list of open space projects is ambitious and Council will be relying on its ability to successfully deliver an outcome. The Panel did not find anything inherently inappropriate in a council committing to an ambitious program however, it will be judged and held to account by its ability to undertake and deliver that program, particularly if and when the MOSS21 is replaced by another strategy.
  • Based on the information provided, the Panel was not satisfied that the costs identified in the VSA Report are reasonable and justified. However, the Panel accepted that some administrative costs will be incurred and, in these circumstances, the 13.88 per cent difference between CIV and market rates is adequate to provide for both the difference between CIV and market rates as well as the administrative costs in purchasing land.
  • The apportionment method is reasonable but limited by the small number of categories which weights the apportionment costs outcome to new development. In the Panel’s view this results in a disproportionate cost attributed to new development which attracts 71 per cent of the cost but represents 18 per cent of the 2036 population or an increase of 22 per cent. The Panel could recommend that Council undertake a more nuanced apportionment and recalculate the apportionment but it agrees with Council’s submission that the amendment process represents a significant investment for Council.
  • Clause 53.01 is no longer fit for purpose as a means of providing contributions for open space from new development.
  • The Panel did not hear evidence specifically on whether the proposed open space contribution rate will directly impact on housing affordability in Monash. The Panel is not placed to comment on whether an impact will occur.

The Panel’s report highlights the complexities in putting together public open space contribution policies and the leap of faith required that relies on development forecasts to justify demand for open space and the statutory and administrative processes required to purchase land and develop open space infrastructure. There will be significant challenges for Monash as the public open space contribution of 7.61 per cent recommended by the Panel is approximately 50 per cent less than the 13.23 -15.57 per cent rate range identified in the MOSS.

As noted by the Monash C168 Panel and previous Panels, the basis for public open space contributions on subdivision pursuant to Clause 53.01 is not fit for purpose and that alternative mechanisms need to be explored. One of the actions under the State Government’s Open Space for Everyone is to update funding and financial models. 

See also:

  • Guide to Planning Panels: Public open space contributions > Stand alone amendments

2. Protection of Mitchell’s extractive industry resource

In Mitchell (PSA) C157mith [2023] PPV, the Panel considered the Mitchell planning scheme review. The Panel noted that the Amendment proposes Council’s most significant revision of the Planning Scheme since the introduction of the New Format Planning Scheme in 1999. It concluded overall that the Amendment will significantly improve readability and usability of the Planning Scheme for Council Officers, landowners, developers and the community, as envisaged by the State Government’s Smart Planning Project.

The most significant area of contention related to the proposed changes on extractive industry policy. The Amendment proposed new strategies in Clause 11.01-1L-01 (Settlement):

  • Avoid the interim development of land where it may prejudice the longer-term strategic role of the land as identified in Precinct Structure Plans.
  • Facilitate growth of housing and employment above other uses that will undermine the delivery of housing and employment, such as extractive industry, within Melbourne’s urban growth boundary.
  • Changes to the Wallan Structure Plan at Clause 11.03-2L (Wallan) by removing a ‘Buffer to proposed quarry’ notation.

The quarry is a proposal in the Beveridge Northwest Precinct Structure Plan (BNW PSP). The Council endorsed Wallan Structure Plan 2015 does not include the proposed quarry buffer.

In considering the policy framework that is relevant to extractive industry, it is important to refer to the regional growth corridor plans prepared at State level. It may be recalled that Growth Area Framework Plans were prepared in 2006 and these were replaced with the Growth Corridor Framework Plans in 2012. It is understood that the State has been working on new regional framework plans for a number of years, but these have never seen the light of day.

The lack of progress on the regional framework plans is problematic in dealing with the extractive policy in Mitchell. As stated by the Panel:

Submissions on extractive industry referred to growth area policy, but there was confusion at the Hearing as to the applicable policy for the growth area. There are three main policy documents that guide growth area planning

    • Growth Area Framework Plans (2006)
    • Growth Corridor Framework Plans (2012)
    • Plan Melbourne 2017-2050

The Growth Area Framework Plans are the plans referred to in the Victoria Planning Provisions and are incorporated into planning schemes. Unfortunately the Growth Area Framework Plans are hopelessly out of date and cover only a small portion of the growth corridor. The Growth Area Framework Plans were superseded about 10 years ago by Growth Corridor Plans. Unfortunately, the Growth Corridor Plans are not current either. Critically the North Growth Corridor Plan does not provide any detail for the Wallan area, identifying it as “Logical inclusions area”. ‘Logical inclusions’ was an Urban Growth Boundary (UGB) review process that ended in 2012 with the expansion of the UGB.

In essence, in justifying the proposed extractive industry policy, Council main concern was that, at its most fundamental, planning should avoid, rather than manage, the co-location of conflicting land uses. It submitted that the most recent examples of these large-scale activities in the municipality have endeavoured to manage the co-location of conflicting land uses:

Ultimately whilst one hopes that it is possible to manage the co-location of conflicting land uses, unless further guidance is established, it is an experiment that has potentially enormous social and economic costs associated with it.

In relation to avoiding land use conflicts, the Panel stated:

The VPP identify a range of things that should be ‘avoided’. Quarries in growth areas is not one of them. But the proposed policy is not about avoiding conflict, it is essentially about stopping quarries in growth areas. The Panel follows the logic of the C106 Panel. If planning prevents the extraction of stone resource through a PSP process or blanket policy approach, then the resource is likely sterilised for all time. There may well be times when that decision is appropriate; the Panel is not satisfied here that the case for giving up potentially high quality, well located significant resources has been made. Indeed, the Council gave examples of where permit conditions had neatly ensured two uses would be separated temporally. Urban development of most of the growth area should be possible during resource extraction, with the balance developed post-quarrying. Thus, the Panel is not convinced that the Amendment as exhibited has framed the issue correctly; it should be possible to deliver a very significant urban development outcome and resource extraction in the long term. In the Panel’s view, that would be the net community benefit and sustainable development outcomes that planning seeks to achieve. Even if the Panel were convinced that conflicts needed to be avoided rather than managed the Panel would need to be convinced that net community benefit always meant that quarries should give way to urban growth. This case has not been made. 

As to non-urban uses in the Urban Growth Boundary, the Panel stated:

The Panel does not agree with Council that the purpose of the UGB “To provide for the continued non-urban use of the land until urban development in accordance with a precinct structure plan occurs” only applies to existing uses. A reference to, say ‘commercial use’ in a policy in an activity centre that says ‘support commercial uses’ is a broader reference than the existing shops and offices. Likewise, a reference to ‘non-urban uses’ is, in the Panel’s view, a reference to a category or class of uses as opposed to the specific instances of those uses. This is the way the table of uses in the UGB is constructed, and the fact that permits for quarries have been granted within the UGB would indicate decision makers and VCAT have taken a similarly broader view.

The Panel therefore recommended the deletion of the proposed policy and that the current version of the Wallan Structure Plan be retained.

See also:

  • Guide to Planning Panels: Local Planning Scheme Policy Reviews > Local policies

3. Establishing a clear line of sight for Moyne’s Rural Housing and Settlement Strategy

In Moyne PSA C70moyn 2022 PPV 71, it was proposed to implement the the Moyne Warrnambool Rural Housing and Settlement Strategy (RHSS). The RHSS has a number of objectives, including:

  • provide an improved strategic framework and suite of statutory controls to guide the use and development of agricultural land in Moyne
  • support the provision of diversity in housing stock in Moyne
  • improve the management of residential and rural residential development in Moyne’s smaller settlements
  • formalise in the Planning Scheme the existing areas used for rural living purposes, as identified in the RHSS
  • improve the clarity and transparency of planning controls by mapping what are currently text-based descriptions in schedules.

The Amendment applies to rural (non-urban) land and small settlements across Moyne and makes policy and zoning changes. The rezonings are a mix of:

  • policy neutral changes to improve scheme transparency
  • uncontroversial application of public use zones to public land
  • rezoning to recognise existing land use patterns
  • new zones or zone schedules to achieve new policy intent.

The Amendment also proposed to include the Moyne Shire Land Capability and Biodiversity Studies Project (2009) (LCBS) as a background document.

The aspects requiring strategic justification identified by the Panel including:

  • introducing ‘lifestyle farming’ areas
  • rezoning land from FZ to the RLZ
  • inserting a new RLZ2.

There were 64 submissions received following exhibition of the Amendment, with 50 submissions referred to the Panel.

The Panel stated that it was difficult to determine a clear line of sight between the background reports and the Council’s preferred version of the Amendment. This was because:

  • the LCBS and RHSS are separate strategies rather than an integrated piece of work
  • the Addendum Report 2015 which reconciles the LCBS and RHSS is more pragmatic than strategic in its presentation
  • authorisation departed significantly from the LCBS, RHSS and Addendum Report 2015 in places
  • the Council preferred version is not explicitly supported by a strategic analysis.

Despite these concerns, the Panel considered these difficulties did not mean that the Amendment could not proceed, but that it must proceed more on the basis of a pragmatic response to the situation of the individual settlements than as the systematic application of overarching strategy. It noted the settlement-by-settlement approach was more difficult in the area of Koroit and surrounds where a strategic overview of the area around Koroit would provide for clear and orderly planning.

The Panel concluded there was strategic and policy support for the Amendment generally as exhibited with some changes, including:

  • the ‘lifestyle farming’ area to the west of Koroit should not proceed as it runs the risk of undermining existing established agricultural operations in an area of high value agricultural land
  • the potential for soil contamination from potato farming to the west of Koroit needs to be properly addressed before rezoning to the Rural Living Zone (RLZ) proceeds.
  • Council’s proposed lot size reductions in the RLZ in response to submissions are not strategically justified and should not proceed.

It further concluded that the Council’s proposed extension of the RLZ in Hawkesdale was not strategically justified.

The Panel recommended that Council’s proposals to identify land for further growth in changed policy at Clause 21.09 should be addressed by further work and no change should be made to the exhibited policy for Hawkesdale, Purnim, Kirkstall or Koroit West and Southern Cross.

The Panel considered submitter requests for rezoning (with one exception) would require further strategic justification and further notice and hearings if they were to proceed under the Amendment.

See also:

  • Guide to Planning Panels: Rural and rural residential strategies

4. Lack of information on biodiversity scuttles Harcourt’s structure plan

In Mount Alexander PSA C94malx [2022] PPV 72, it was proposed to implement Plan Harcourt (2020), which comprises the Harcourt Framework Plan and Shine Harcourt Leanganook (the Plan). Harcourt, located in central Victoria, known to the Traditional Owners as ‘Lianyuk’ and referred to by the community as Leanganook), is approximately 33 kilometres south of Bendigo and 123 kilometres northwest of Melbourne

The objective of the Plan is to ensure growth and development of Harcourt is carefully managed to promote local character, recognise and protect productive agricultural land and operations, ensure adequate land supply and infrastructure and protect natural and cultural features of the town.

Specifically the Amendment proposed to:

  • insert a new local policy Clause 11.01-1L-04 (Harcourt) including an updated Harcourt Land Use Framework Plan
  • rezone the majority of land in the Township Zone and General Residential Zone to the Neighbourhood Residential Zone Schedule 1
  • rezone land in the designated town centre from Township Zone to Commercial 1 Zone and apply design requirements through the Design and Development Overlay Schedule 12
  • rezone land in Growth Areas A and B from Farming Zone to Neighbourhood Residential Zone Schedule and apply design requirements through the Development Plan Overlay Schedule 12
  • include Plan Harcourt as a Background Document
  • make other minor and consequential changes to the Mount Alexander Planning Scheme.

There were 26 submissions received following exhibition of the Amendment. Key issues raised in submissions included:

  • protection of significant biodiversity and trees
  • response to climate change and provision for environmentally sustainable development
  • interface and buffers between residential and agricultural land
  • township boundary alignment
  • issues relating to residential areas, including appropriate land use zone, lots size and housing diversity, built form, growth area planning and design and development contributions
  • town centre location, extent and amenity
  • site specific issues and requests.

The Panel considered that population growth forecasts and settlement planning for Mount Alexander Shire support and reinforce the need to update the existing township plan for Harcourt. It commended Council’s commitment to strategic planning for Harcourt which takes into consideration changes to the context of the town, such as construction of the Calder Freeway Bypass. The Panel acknowledged the extent of community and stakeholder engagement and consultation undertaken by Council in preparing Plan Harcourt.

However, the Panel was greatly concerned that the Plan did not include an assessment of biodiversity impacts. It stated:

The Panel commends Council’s efforts to address biodiversity protection by realigning sections of the township boundary and embedding some biodiversity provisions in the proposed planning controls. Further the Panel acknowledges Council’s efforts to respond to submitter concerns with proposed post exhibition changes to planning controls to strengthen the protection of biodiversity.

However, the approach adopted by Plan Harcourt and the Amendment:

    • relies on a general understanding of the biodiversity asset and the role of native vegetation in contributing to the town’s character and sense of place
    • does not identify important or higher value biodiversity assets across the town and its surrounds
    • relies on principles for biodiversity protection rather than specific recommendations
    • does not apply planning controls with consideration of the value of biodiversity assets to be protected
    • relies on site by site vegetation assessment that does not allow for consideration of habitat fragmentation, indirect and cumulative impacts and threats to be understood and addressed.

The Panel shares Mr Foreman’s concern that the approach conflates concepts of biodiversity with trees and character, and does not adequately address the specific needs relating to biodiversity planning. This is evidenced in the proposed local policy objective “To recognise the importance of trees and native vegetation as part of Harcourt’s character”.

State policy clearly directs that information must be used to identify important areas of biodiversity and strategically valuable biodiversity sites. As stated in the Native Vegetation Guidelines, the value of native vegetation must be understood to ensure the efforts to avoid or minimise impacts are commensurate with the value. A site by site assessment of biodiversity does not allow for this strategic approach.

Section 5 of the Planning for Biodiversity guidelines explains that planning should be informed by up to date information and focus on protection and conservation of high value biodiversity. Council’s approach to determining areas with higher biodiversity values focussed on “larger, well connected areas of native vegetation”. Council did not take into account the full range of elements required to assess and understand biodiversity value, for example:

    • areas with higher strategic biodiversity value scores
    • areas that are highly localised habitat for rare or threatened species, particularly if they are areas of highly localised habitat for multiple rare or threatened species
    • important areas of habitat within dispersed habitats for rare or threatened species or areas of habitat for many dispersed rare or threatened species
    • areas with large trees, including consideration of their age and size
    • areas of native vegetation that are an endangered Ecological Vegetation Class
    • waterways and sensitive wetlands
    • assessment of threats. 

Unfortunately, without an understanding of the value of a biodiversity asset in the context of its landscape, resilience or sensitivity to change, it is not possible to know whether:

    • the proposed planning controls will be effective in managing the identified biodiversity values
    • development is being directed away from higher value areas.

The Panel also recommended further work relating to the extent of land proposed for commercial zoning in the town centre, and the north-eastern aspects of the proposed township boundary.

Given the Panel’s concerns on the lack of analysis on biodiversity impacts, it recommended abandoning the current Amendment process until this further work is completed.

See also:

  • Guide to Planning Panels: Structure plans applying to townships, urban growth areas and established residential areas > Environmental impacts

5. Need for updated population and demographic data for Moira’s townships

In Moira PSA C93moir [2022] PPV 73, it was proposed to update the strategic plans for Cobram, Nathalia, Numurkah and Yarrawonga, informed by the Retail Policy Framework for Cobram and Yarrawonga: Background analysis and options report, 2017, Major Towns Strategy Plan Review, 2018 and the Yarrawonga Framework Plan, 2020.

The Amendment also proposed to rezone land designated as ‘short term industrial expansion’ on the Numurkah Strategy Plan from Farming Zone to Industrial 1 Zone and the land designated as ‘long term industrial expansion’ from Industrial 1 Zone to Farming Zone (the Numurkah rezonings).

Whilst the Panel was satisfied the strategic plans are consistent with the role of each settlement as set out in the Hume Regional Growth Plan and Municipal Planning Strategy, the strategy plans all relied on 2016 census data and did not account for changes to population and migration patterns arising from the COVID-19 pandemic. The Panel considered a contemporary supply and demand assessment is needed before land is rezoned for housing, commerce or industry across some of the major towns. In relation to Yarrawonga, it stated:

The Panel acknowledges the COVID-19 pandemic has initiated some fundamental changes in population and working arrangements and there is general agreement between the parties that Yarrawonga has grown faster than expected by the Yarrawonga Framework Plan. Whether these are long term changes is uncertain, particularly as other more recent factors such as inflation, higher interest rates and transport costs come into effect. If the accelerated growth in Yarrawonga continues, then it may be prudent to update the population and demographic trends included in the plan.

The Panel agrees with Council that is unwise to take the outcome of a two year extraordinary pandemic as a long term trend. Further strategic analysis is needed to holistically consider population factors alongside recent influences such as rising fuel costs and other macroeconomic circumstances. The Panel also agrees with Council that most of the persons deciding to work from home have already made that transition and, it is not realistic for people living in Yarrawonga to commute, even once or twice weekly, to Metropolitan Melbourne or other large employment centres because of the distances involved and the lack of public transport.

The Panel concluded in relation to Yarrawonga:

  • The Yarrawonga Framework Plan should not recognise land along Murray Valley Highway (the proposed C92moir land) as ‘potential commercial/industrial investigation.’
  • The population and demographic trends included in the Yarrawonga Framework Plan may need to be updated if current growth rates continue.
  • The Yarrawonga Framework Plan commercial land estimates are appropriate. 

See also:

  • Guide to Planning Panels: Structure plans applying to townships, urban growth areas and established residential areas