PPV Volume 10 No 6

1. Protecting industrial areas from becoming de facto activity centres

Practitioners may recall that Amendment VC100 approved in 2013 sought to simplify the Victoria Planning Provisions and provide more flexibility. In relation to industrial zones, the aim was to support business investment and industry by responding to new and emerging trends regarding the mix of industry, office and some forms of limited retail, and provide greater incentives for business investment.

Some planning authorities have been concerned that one of the adverse impacts of VC100 was to weaken the achievement of strategic objectives because too much flexibility is provided in the zones. For instance, in Hume C218 (PSA) [2017] PPV 130, the Council proposed to rezone seven areas from the Commercial 2 Zone (C2Z) to the Industrial 3 Zone (IN3Z). The Council was concerned that the new C2Z had the potential to change the future development of the precincts from employment to a more commercial emphasis given the expanded uses allowed under the zone and the change in orientation in the purpose of the zone to a more commercial focus. However, the Panel did not support the Amendment.

In Wyndham C263wynd (PSA) [2023] PPV 31, the Council was concerned that the Truganina Employment Precinct Structure Plan (TEPSP) objective to establish a thriving industrial employment precinct is being undermined due to the applied zoning in Industrial Park B area of the TEPSP. The original applied zoning of the Industrial Park B area was Business 3 Zone (B3Z). As part of Amendment VC100, the B3Z replaced by the newly introduced Clause 34.02 – Commercial 2 Zone (C2Z).

Council submitted that the intention of changing the zoning was to provide greater flexibility and growth opportunities and to allow for a wider range of uses to support mixed use employment. Council submitted that these outcomes may have been appropriate in an activity centre or town centre context but have led to unintended consequences in a primarily industrial land use context.

It further submitted that the proposed update of the Schedule will allow planning officers to make assessments of uses that currently do not require permit approval, allowing consideration of the cumulative impacts of such proposals and their appropriateness in an industrially focused PSP. It would also prohibit uses which do not align with the vision and intent of the TEPSP. The updated Schedule will require applicants for certain uses to apply for a planning permit. It will also prohibit certain uses within Industrial Park B. These uses will be prohibited as they do not align with the vision and intent of the TEPSP.

In evidence provided to the Panel by Council’s planning expert witness, it was noted the significant number of shop and food and drink premises that had located in that part of Industrial Park B with a frontage to Leakes Road, including 17 shop uses.

Submitters opposed to the Amendment contended that the PSP intentionally allows some flexibility of uses. The PSP for the relevant area states:

Industrial Park A and B: A high amenity area combining light industrial, research and development uses, and other business uses along Palmers and Leakes Roads. Higher employment densities in this area will be encouraged, with office specifically encouraged in the Industrial Park Area B. A wide range of occupancy sizes, including small “factory/offices” and uses incorporating ancillary offices are encouraged in the Industrial Park area. Over time, this area will serve to attract higher density services and employment uses and provide a transitional buffer between the Truganina South Community Precinct and the General Industrial Area. Uses of a sensitive nature that may compromise the General Industrial A will be discouraged as will uses with adverse amenity potential that may similarly compromise the Truganina South Community Precinct. Uses that have the potential to detract from visual amenity, including but not limited to materials recycling, shipping container storage and outdoor storage must not be located in this area. The intensity of development is expected to increase over time.

In other words, it was considered this precinct was to be contrasted with other precincts and that it was to be for employment uses with a focus on business.

As to whether the commercial-type uses in Industrial Park B are compatible with the TEPSP, the Panel stated:

The Panel considers the TEPSP to be a key strategic document that should be given significant weight. The role of the TEPSP is reinforced by references to strategic documents in MICLUP and this is addressed in Chapter 2.3. It is clear to the Panel that the TEPSP envisages a wide range of businesses to locate in Industrial Park B.

The Panel notes the non-exclusive list of possible land uses for Industrial Park A and B in the TEPSP, quoted by both Council and Palmers Road and cited above. It is clear from the current land use plan prepared by Mr De Silva that there are significant land uses which are listed in and compatible with the TEPSP. However, the Panel notes that there is no mention of shop in that list of uses and the Panel does not detect any support in the TEPSP for a wide range and significant number of shop uses identified by Mr De Silva. The Panel accepts a limited number of shop uses as appropriate, particularly where they service other businesses in the area but finds no support for the significant number which appear to have located in Industrial Park B.

With respect to food and drink premises, the reference to those in the list of possible uses has the specific rider of ‘servicing in-centre population’. It is not clear whether this is a reference to just this precinct or to the broader TEPSP. Whichever interpretation is applied, based on the evidence of Mr De Silva and site visit observations about the number of sit down restaurants currently located in Industrial Park B it would stretch credulity to suggest that these are mainly serving in-centre population. This is reinforced by the particular ethnic focus of most restaurants. Clearly there will be some take away function that is serving the in-centre population.

The Panel considers that there are a significant number of uses compatible with the TEPSP but that the significant number of shop and food and drink premises that are not compatible with it. The Panel notes that the imminent construction of an approved Aldi supermarket may result in market pressure for further shop uses particularly at the western end of Industrial Park B.

In summary, whether the TEPSP is being undermined is a subjective judgement but what is clear to the Panel is that a significant number of incompatible uses are locating in Industrial Park B.

In relation to the impact on the Melbourne Industrial and Commercial Land Use Plan (MICLUP)  that was introduced as a policy document in Clauses 11.02-1S (Supply of urban land) and 17.03-3S (State significant industrial land) of the Planning Scheme through Amendment VC215, the Council submitted that the general intent of State policy is to firstly ensure availability of land for industry, secondly to facilitate continued operation of industry and thirdly to protect state significant industrial land.

Opposing submitters contended that MICLUP does not support the Amendment in that it recognises the role of business and related uses within SSIPs.

The Panel found:

The Panel considers that MICLUP and references to it in the Planning Scheme represent an important State policy context for the Amendment. The Panel agrees that it seeks to protect industrial land from encroachment by non-industrial uses. Equally the Panel agrees with Mr Glossop that MICLUP provides policy support for employment uses in industrial precincts albeit where they support other businesses. The Panel further accepts that MICLUP envisages C2Z as appropriate in the business precincts of some industrial areas noting that MICLUP foreshadows a review of its role and function in industrial locations.

The Panel accepts Mr Glossop’s contention that reviews do not always lead to change but observes that reviews such as foreshadowed in MICLUP are rarely proposed unless there is at least a perception of a problem. 

The Panel accepts that the protection of land zoned for industrial purposes from inappropriate uses is an important aspect of MICLUP and notes that this is of particular importance in the western SSIP where the future supply of industrial land is limited relative to some other SSIPs. This is an added imperative to carefully consider uses permitted to locate in the western SSIP.

While the Panel accepts that there is support in MICLUP and related policy for the location of employment generating business in Industrial Park B, it finds little or no policy support for some of the uses identified by Mr De Silva as incompatible with the TEPSP.

As to whether the Amendment was contrary to VC100, the Panel made the interesting comment that, because it moves a number of uses from Section 1 to Section 2 and 3 of the Planning Scheme, it will impose costs on development, monetary, time and in terms of increased uncertainty of outcome of the planning permit application process. However, in supporting the Amendment, it stated:

The Panel acknowledges the performance based approach to planning and flexibility in where uses are located that are inherent as a result of VC100. However, it considers that giving those considerations primacy over strategies and policy, particularly the TEPSP is inappropriate. It would normally be expected that zones and overlays would be used as the Victoria Planning Provisions tools to implement strategy and policy. To accept in this instance that the UGZ2 as applied has primacy could and to some extent is undermining the intent of the TEPSP.

The Panel notes that the Victorian Planning Authority (VPA) has written in support of the Amendment as exhibited, which it interprets and support for the primacy of the TEPSP. The Panel accepts that the VPA support was absent the opportunity for it to hear counter submissions and evidence.

Whilst supporting the Amendment, the Panel considered that the exhibited designation of land uses proposed by Council were inappropriate on the basis they were too restrictive. It held that a number of the uses in Section 2 as proposed by Council’s planning expert was appropriate and retained some of the flexibility to consider the appropriateness of particular uses, albeit at the cost to development of obtaining a planning permit and the inherent uncertainty involved.

The Panel’s findings in this matter will be of interest to planning authorities also concerned about the impact of VC100 of potentially undermining the achievement of strategic objectives.

See also:

  • Guide to Planning Panels: Industrial strategies and design guidelines > Commercial uses in industrial zones

2. Whitehorse Corridors Study – whether mandatory controls are appropriate

In Whitehorse C220whse (PSA) [2023] PPV 32, it was proposed to implement the outcomes of the Corridors Study into the Whitehorse Planning Scheme. Specifically the Amendment proposes to:

  • introduce Schedule 11 to Clause 43.02 (Design and Development Overlay) (DDO11)
  • make policy changes at Clause 21.06 (Housing) and Clause 22.03 (Residential development), including reference the Corridors Study
  • include the Corridors Study as a background document in Clause 72.08 (Background documents)
  • amend Planning Scheme maps to apply the DDO11.

The Amendment applies to the two major east-west transport corridors of Whitehorse Road and Burwood Highway where the Residential Growth Zone (RGZ) applies. It does not include any area currently covered by an existing structure plan or urban design framework.

The exhibited DDO11 included mandatory building height and front setbacks, and discretionary side and rear setbacks. Following exhibition, the Council resolved to make the side and rear setback controls mandatory.

Council explained that the purpose and outcome of the Corridors Study include:

  • was commissioned by Council to develop appropriate built form controls for RGZ areas to better manage outcomes consistent with land use and built form aims and the impact on adjacent land
  • focused on major east-west tram and road corridors with interfacing low-rise residential land
  • considered four case study areas
  • recommended new built form controls (DDO11) to better guide development outcomes, relating to setbacks, architecture and height, building separation, overshadowing, landscaping and access.

The case studies included in the study:

  • demonstrated the gross floor area of permitted development was equal to, exceeded or not significantly reduced
  • provided useful insights into building envelopes, gross floor area, site coverage and areas for mature landscaping.

There were sixteen submissions to the Amendment and two parties appeared before the Panel.

The key issue of the Amendment was whether mandatory controls should be supported. Council advised the Panel the Department of Environment, Land, Water and Planning (as it then was), supported the proposed mandatory requirements relating to front setbacks and building height. As to the relevance to this, the Panel stated:

Importantly, the Panel in making recommendations regarding the Amendment is not confined to the authorisation conditions. Accordingly, it is now a matter for the Panel to consider whether mandatory requirements relating to side and rear setbacks are justified. And then for Council to consider the Panel’s recommendations and then for the Minister to make the final decision on the Amendment.

Council submitted the Amendment satisfied Planning Practice Note (PPN59) The Role of Mandatory Provisions in Planning Schemes. It considered that a practice note provides guidance but does not “deem an outcome on the Amendment. This means a failure to meet a practice note does not deem that the Amendment must fail and likewise satisfying a practice note does not guarantee that the Amendment succeeds”. Council said a practice note contains criteria that can be used, rather than criteria that must be used.

It further considered mandatory controls would deliver considerable cost savings to Council, applicants and the community, as there will be greater certainty regarding acceptable built form.

Council was concerned that “without the force of the mandatory requirements” there would be real risks of inconsistent outcomes, and with preferred heights typically viewed as a starting point, particularly once lot consolidation has occurred.

Some landowners raised general concerns with the Amendment and was strongly opposed to the mandatory controls. They submitted that:

  • the blanket mandatory controls do not adequately consider appropriate transitions to interfaces other than lower order residential zones
  • while the provisions were intended to manage interfaces between substantial change areas and adjoining low rise residential, as drafted they would apply to all land in the DDO11 area, and would not ensure appropriate development outcomes on sites with non-residential or non-sensitive interfaces
  • the provisions do not recognise “there are properties of varying size and proportion as well as less sensitive interfaces, that have differing development opportunity”, which is a circumstance where discretionary controls should be applied
  • it is not likely administrative costs would be reduced.

The Panel held:

It is not evident from the built form testing that the benefits of the mandatory provisions outweigh lost opportunity for development, or that performance based controls are deficient. The Corridors Study does not identify any particular values or characteristics of the study area, or special circumstances that cannot be managed through the layers of existing planning provisions and proposed DDO11 with discretionary controls.

Fundamentally the Corridors Study does not identify what needs to be protected by mandatory controls that cannot be achieved through discretionary controls. There are no special or exceptional circumstances identified in the Corridors Study or in other policy or guidance that the Amendment area warrants mandatory controls.

Performance based provisions are preferred to achieve an appropriate balance between planning policies objectives. In the absence of exceptional circumstances, it would not be appropriate to unreasonably restrict development potential by applying mandatory controls in an area that is extremely well located and well serviced, and identified as suitable for substantial housing growth.

The Panel therefore recommended the controls be changed to discretionary.

Overall, in respect of the Corridor Study and the Amendment, the Panel accepted:

  • the Amendment is consistent with planning policy, including to provide design and development guidelines for areas within residential growth corridors
  • the Corridors Study provides sufficient strategic basis for the Amendment
  • the Design and Development Overlay is an appropriate planning control to achieve the desired outcomes.

Other issues addressed in the Panel report that may be of interest to practitioners include building height, scaled or stepped setbacks; definition and buildings and works requirements; overshadowing and access to sunlight and daylight; overlooking, privacy and views; landscaping and greening; and health.

See also:

  • Guide to Planning Panels: Built form and height controls

3. Balancing protection of the Eppalock Special Water Supply Catchment

The Eppalock Special Water Supply Catchment is an open water catchment that provides raw drinking water supplies to over 130,000 people. It is one of a number of strategic water resources within the Macedon Ranges. The catchment is currently protected by the Environmental Significance Overlay Schedule 4 (ESO4).

In Macedon Ranges 145macr (PSA) [2023] PPV 34, it was proposed to update the ESO4 to provide an improved balance between the needs of the catchment and the needs of landowners and occupiers by:

  • ensuring the need for a planning permit has a clearer relationship to the need to protect the water quality and health of the catchment
  • providing clearer application requirements
  • requiring permit applications to be referred to the water authorities with responsibility for the catchment (including Coliban Water).

The updated ESO4 triggers permits for activities that pose a higher risk to water quality, and provides exemptions for lower risk activities. The permit triggers and exemptions are informed by the Upper Coliban Catchment Management Plan, which is based on commissioned research into pathogen risk (as well as common understandings of activities that present a higher contamination risk).

The Panel held that this is an appropriate and strategically justified approach to balancing the protection of water quality within the catchment, and the reasonable use and development of land within the catchment. The Panel supported the Amendment subject to some modifications to the wording of the ESO4, including:

  • clarifying that the environmental objective in Clause 2.0 to protect and restore the health of the natural resources and environmental systems within the catchment do not imply an obligation on private landowners to take active steps toward restoring and enhancing the catchment, rather than just minimising impacts on water quality and quantity. This is not the responsibility of private landowners – this is the responsibility of the water authorities and catchment management authorities.
  • removing some of the application requirements in Clause 4.0 and some of the decision guidelines in Clause 5.0 that do not have a clear rationale.
  • removing the exhibited permit trigger for fencing and removing the additional exemptions for farm infrastructure or public works.

In relation to the mechanics of the Amendment, the Panel concluded:

  • it is appropriate to define a waterway by reference to the definition in the Water Act 1989, and to refer to the Waterway Identification Guidelines 2022 as providing further guidance
  • it is appropriate for Coliban Water (and Goulburn Murray Water) to be specified as determining referral authorities for all permit applications under the ESO4
  • neither the Upper Coliban Catchment Management Plan not the Waterway Identification Guidelines 2022 need to be included as background documents in the Planning Scheme.

See also:

  • Guide to Planning Panels: Environmental policies > Open potable water catchments

4. Kingston’s housing strategy

The City of Kingston is the latest planning authority to have a housing strategy considered by a Panel.

In Kingston C203king (PSA) [2023] PPV 35, it was proposed to implement the Kingston Housing Strategy and Neighbourhood Character Study, 2021 (the Study) in the Kingston Planning Scheme by updating the Planning Policy Framework and planning controls to achieve various scales of housing growth and change across the municipality to accommodate the housing needs of the existing and future community and to direct development to respond to identified preferred character statements.

Council prepared the Study in the context of several reforms to the residential zones by the former Department of Environment, Land, Water and Planning (DELWP), including:

  • Amendment VC110, which reformed the new residential zones on 27 March 2017 which included the introduction of mandatory requirements into the NRZ and GRZ for maximum building heights and garden areas.
  • Amendment VC143, which introduced refinements to the new residential zones on 15 May 2018. The refinements changed the definition and operation of the minimum garden area requirement, including clarifying exemptions in the NRZ and the GRZ and introduced permit requirements for certain commercial land uses in the GRZ.

The Study has had a long and complicated history, particularly after Council resolved in August 2020 to adopt the Housing and Character report with significant changes. Correspondence was received from the Minister for Planning and Council’s consultant, Ethos Urban, which indicated concerns regarding the significant departure from the strategic planning work that had been progressed up until Council’s adoption of the Housing and Character report.

Council was required to revisit its adopted position and resolved on 25 October 2021 to adopt a revised version of the Housing and Character report.

The Amendment revises some existing residential zone schedules, and introduces new residential zone schedules to implement the Housing and Character report, but also leaves some existing zones in place. The Amendment also proposes a number of changes to Design and Development Overlay (DDO) schedules.

The Panel supported the general approach of the Amendment but concluded:

  • The nuances between character precincts and zone schedules are difficult to justify in places and the end effect of the approach taken by Council and its consultants will produce a planning scheme that in all likelihood will be difficult for the non professional user to navigate and to readily understand.
  • DDO1 should not be taken as a strategic driver of the housing strategy in Kingston without clear justification for its controls under current policy settings. Because this strategic work did not reconsider DDO1 the appropriate balance has not been demonstrated between housing strategy and character protection for the areas covered by DDO1 within the walkable catchments of Mentone and Parkdale.

Further, together with a lack of consistency in the expression of the policy statements, the Panel considered that the proposed policy should be reviewed before the Amendment is approved. This review should transfer the specific policy statements into the objectives of the schedules so that future decision makers only need look in one place for precinct specific policy.

The zone schedules propose a number of ResCode variations, which the Panel broadly supported with three exceptions:

  • the requirement for tree planting in side setbacks in the proposed variations to Landscaping – Standard B13. Providing sufficient space for tree planting in side setbacks, which typically serve an access and service function, will inevitably be at the expense of more usable space, within the dwelling or as private open space, and the Panel was not convinced that such planting is an existing valued characteristic of Kingston or justifies as a new approach.
  • the requirement for tree planting in private open space in the proposed variations to Landscaping – Standard B13 because this requirement confusingly overlaps with additional requirements for planting in front and rear setbacks and may undermine the use of the open space for more general gardening, or recreational uses.
  • proposed variations to private open space – Standards A17 and B28. The strategic justification for these changes was unclear, particularly to Standard A17 which may well reduce the requirement for open space for new single dwellings.

As well as the above issues, the Panel also made some interesting observations on whether the Amendment caters for sufficient growth. It stated:

The Panel is satisfied that the Housing Capacity Model used by SGS to forecast future housing capacity is appropriate. The methodology used by SGS is appropriate and was not seriously challenged by any submitter. The worked examples of the calculation of future capacity by land parcel provided at the Panel’s request gives it a necessary degree of confidence in accepting both the methodology and the outcomes of the model.

The Panel has concern about the widespread use of the term ‘future dwelling capacity’ or variants of it. The Panel is strongly of the view that the word ‘potential’ should be added whenever future capacity is being discussed. Because this is a land parcel based model, whether any particular site becomes available for (re)development is based on decisions of many individual land owners. It can’t be assumed that all land parcels potentially available will become available. This said, the Panel recognises that over the 15 or 25 year forecast period, and based on average periods of ownership, most of the land parcels included in this analysis are likely to become available albeit not necessarily acquired for redevelopment. 

The Panel considers that the demand and capacity forecasts provide sufficient evidence that there is potential capacity to meet any realistic assumptions about the likely level of future demand at least to 2038 and most likely to 2048. In drawing this conclusion, the Panel acknowledges the indicative nature of the forecasts the further they are into the future.

The Panel also observed that whilst the Amendment provides sufficient capacity over the medium term for housing, further capacity will eventually need to be found within Kingston as Australia and Victoria continue to grow. It noted that Kingston has many attributes, including a train line, that mean it could support further higher density development. It stated:

The form and location of this future higher density development cannot be determined at present, but it is fair to say that as higher density forms become more common across Melbourne, especially in order to meet government policy for 70 per cent of new houses to be within existing areas, further opportunities will present themselves within Kingston. 

Council and the community need to recognise that the current work will not be the last say on housing intensification in Kingston. The work will need to be reviewed in the future and in all likelihood that review will identify further areas for intensification, and potentially taller development in existing areas identified for intensification.

The Panel’s comments on the need for a long-term view may be particularly prescient given the impending state government announcement on housing, where it is understood that greater emphasis in providing housing in established areas will be a key consideration.

See also: 

  • Guide to Planning Panels: Housing strategies – Metropolitan housing strategies