On 27 March 2017, Ministerial Amendment VC110 (VC110) to all Victorian planning schemes implemented significant changes to the Neighbourhood Residential Zone (NRZ), General Residential Zone (GRZ) and Residential Growth Zone (RGZ). Complementary changes were also made to the Mixed Use Zone (MUZ) and Township Zone (TZ).

VC110 purports to represent the Victorian State Government’s response to the recommendations of the Managing Residential Development Advisory Committee (the Committee), appointed in 2015 to review the implementation and application of the residential zones introduced in 2014.

The revised zones are said to be a means of seeking to ‘improve housing diversity and choice across all council areas, while protecting the open and garden character of more sensitive residential areas’.[1] In doing so, VC110:

  • amends the building height provisions in the revised zones
  • introduces a mandatory ‘garden area’ requirement into the NRZ and GRZ
  • removes the restriction on the number of dwellings that can be built on land in the NRZ.

Important changes have also been made to the purposes of the zones. The following provides an overview of the critical changes in VC110, and the implications for councils as both the planning and responsible authority.

Maximum building heights

The heights

Insofar as building heights are concerned, VC110:

  • increases the mandatory maximum height for development in the NRZ from 8 metres to 9 metres (paired with a mandatory two-storey maximum)
  • increases the discretionary height limit for development in the GRZ from 9 metres to a mandatory maximum height of 11 metres (paired with a mandatory three-storey maximum).

As with the previous controls, councils can set an alternative mandatory maximum building height in a schedule to the zone (including in the RGZ). These heights are also now said to apply, ‘whether or not a planning permit is required for the construction of a building’.

However, the State Government’s intention is clear – schedules will not be permitted to set lower maximum building heights. Commentary accompanying VC110 states that scheduled maximum building heights must be more than that set out in the zone.

For now, existing schedules will be retained and scope remains to consider lower building heights through overlays where strategically justified.[2] Although again, the State Government appears to have issued a warning:

The Committee found the application of residential zone schedules has resulted in duplication and conflict with planning overlays, and has complicated planning schemes. The Government agrees and will begin work on a fundamental review of local variations in the residential zone schedules.

This will be an important step towards delivering more consistent outcomes across Melbourne’s suburbs. Councils with building height variations in zone schedules that are inconsistent with the reformed zones will have three years to comply with the new requirements.[3]

Exemptions from maximum building heights

VC110 also introduced five specific exemptions from the maximum building heights (four in respect of new development and one for extensions). These exemptions are consistent across the reformed zones and replace the inconsistent and the occasionally confusing exemptions in the previous zones.

Land subject to inundation

Where land is in a Special Building Overlay, Land Subject to Inundation Overlay or liable to inundation, the maximum building height is measured as the vertical distance from the minimum floor level determined by the relevant drainage or floodplain management authority to the roof or parapet at any point.

Mandatory minimum ‘garden area’

VC110 breaks new ground by introducing mandatory minimum ‘garden area’ requirements in respect of the subdivision and development of lots. The subdivision requirements do not apply to developed lots. The requirements are:

Lot size Minimum percentage of a lot set aside as garden area
<400 square metres* 25% (except where a PSP or equivalent strategic plan applies)
400 – 500 square metres 25%
501 – 650 square metres 30%
Above 650 square metres 35%

* This category only applies in the case of an application to subdivide land that creates a vacant lot capable of development for a dwelling or residential building, although how a ‘vacant’ lot is supposed to have a ‘garden area’ is yet to be understood. Presumably this will need to be shown by some two dimensional building envelope, secured by a s 173 agreement or restriction on title.

The garden area must be provided at ground level. Further, as with maximum building heights, the garden area requirements apply ‘whether or not a planning permit is required for the construction or extension of a dwelling or residential building’. This is presumably intended to address the growing concern over the so called ‘McMansions’, which have inundated many of the inner suburbs of Melbourne. Presumably building surveyors will need to satisfy themselves that the minimum garden area requirement is met before granting a building permit for a single dwelling or extension to an existing dwelling. It is yet to be seen whether building surveyors will expect council planners to make the assessment for them.

‘Garden area’ is defined broadly at clause 72 to include various private open space functions, excluding driveways and car parking areas and ‘any building or roofed area’, and ‘any area that has a dimension of less than 1 metre.’

We will keep you informed as the boundaries of these new requirements are tested. We anticipate that they will be the subject of closer scrutiny as councils, proponents and the Tribunal grapple with their reach. It is not clear to us, for example, how an ‘area‘ can have a ‘dimension‘ of less than a specified length, nor what an area of less than 1 metre is meant to mean. Debate has already commenced as to what is meant by a ‘roofed area‘.

Dwelling cap in the Neighbourhood Residential Zone

Provisions capping the number of dwellings on a lot in the NRZ have been deleted. It has been said that the previous provisions were an ineffective way of protecting the identified character values of land in the NRZ[4] but why it was ineffective is not explained.

The change creates the potential for greater densities in the NRZ, while noting that development will be subject to the minimum garden area requirements in conjunction with maximum building heights and existing local controls. Presumably, if the aim is to increase the number of new dwellings within the NRZ areas, those developers who have pleaded for greater intensity of development in the other residential zones and in activity centres to ‘compensate’ for the constraints of the NRZ, will now temper those pleas.

Purposes and objectives of the zone

Councils should also be aware of important changes to the purposes and objectives of the zones. In essence:

  • In the RGZ, a schedule must contain the design objectives to be achieved for the area. This is accompanied by a new purpose to the zone seeking to achieve those objectives.[5] These provisions have implications for both new and existing RGZ schedules, which may need to be revisited to comply with the mandatory design objective requirement.
  • In the GRZ and TZ, a schedule to the zone may contain neighbourhood character objectives to be achieved for the area. Importantly, however, VC110 deleted a purpose from both the GRZ and the TZ seeking to implement neighbourhood character policy and adopted neighbourhood character guidelines. The word ‘moderate’ has been removed from the purposes provision in respect of housing growth to be encouraged in the GRZ. Whether these changes significantly weaken the ability to rely on neighbourhood character objectives is yet to be understood. While references to ‘neighbourhood character policy’ and ‘neighbourhood character guidelines’ have been deleted from the purposes of the zone, applications governed by clauses 54 and 55 will remain to be considered against ‘any relevant neighbourhood character objective policy or statement set out in [the] scheme’.
  • In the NRZ, a schedule to the zone must contain neighbourhood, heritage, environment or landscape character objectives to be achieved for the area. VC110 also deleted two purposes from the zone.[6] Similarly, the impact of their deletion is yet to be understood.

Transitional provisions

VC110 also:

  • deleted pre-existing transitional provisions from each zone
  • introduced new transitional provisions into the GRZ and NRZ in respect of maximum building heights and the minimum garden area requirement.

Of note are the transitional provisions with respect to the construction or extension of a dwelling or residential building for which a planning permit is not required. They exclude the height and garden area requirements where:

  • a building permit has been granted before the approval of VC110
  • a building surveyor has been appointed to issue a building permit before the approval of VC110[7]
  • a ‘building surveyor is satisfied and certifies in writing that substantial progress was made on the design of the dwelling or extension‘ before the approval of VC110.[8]

It will be interesting to see how many (if any) building surveyors will be prepared to put their names to such a certificate and how many such certificates are received over the next six months.

Further work

The Victorian State Government has also flagged that it will be:

  • revoking Ministerial Direction 16 (Residential Zones)
  • amending the Ministerial Direction on the Form and Content of Planning Schemes
  • withdrawing Planning Practice Note 78 (Applying the Residential Zones) and Advisory Note 50 (Reformed Residential Zones) and releasing revised Planning Practice Notes and Advisory Notes by 30 June 2017
  • releasing regular State of Play reports. New Housing Development data reports are to be released in April 2017
  • establishing a working group in respect of residential aged care facilities.
  • Undertaking further work in respect of residential development within the Commercial 1 Zone.

Supporting information

VC110 can be viewed here.

The Reformed Residential Zones booklet and facts sheets can be found here.