Focus: Planning reviews abound – Part I
13 June 2012
In brief: The Victorian Minister for Planning has released three advisory committee reports and published his responses on issues as varied as car parking, coastal climate change, and a complete review of the planning system. In the first of a three-part series on the reports, Special Counsel Meg Lee (view CV) looks at the changes to the planning schemes arising from the car parking review.
How does it affect you?
- All 'in the pipeline' developments will be considered by council or other decision-makers in accordance with the new provisions. Therefore developers with 'live' applications should review these to consider the implications of the new provisions and whether the application is still necessary or requires amendment.
- Existing lawfully established uses can continue to operate and existing permits (that have not expired) can still be acted upon based on the parking rates specified in the permit relying on the principle of existing use rights in clause 63 of the Victoria Planning Provisions (VPPs).
- Developers in the retail and residential sectors in particular should monitor and review any future council-specific planning scheme amendments that seek to apply the new Car Parking Overlay to their land to ensure the rates proposed, design requirements and permit requirements are realistic for the local operating conditions.
The Minister for Planning recently announced Amendment VC 90 to respond to the advisory committee (the committee) report on the car parking provisions contained in the VPPs. The committee had been provided with a draft clause 52.06, Car Parking Overlay clause 45.09 and draft Practice Notes prepared by the Department of Planning and Community Development (DPCD)1.
The committee largely recommended adopting the DPCD's draft provisions, with some changes to the format and the operation of both the parking provisions at clause 52.06 and the Car Parking Overlay at clause 45.09.
Amendment VC 90 was gazetted on 5 June 2012 and introduces a new clause 52.06 and an associated schedule to replace the existing provision and its schedule once the existing parking precinct plans are translated into a new Car Parking Overlay. The amendment therefore also introduces the new Car Parking Overlay (clause 45.09) and an associated schedule. The amendment also removes the car parking provisions from clauses 54.03 and 55.03.
Two new Practice Notes and one Advisory Note were also released by the Minister to explain and assist with the application of the new provisions. They were:
- Practice note 22: Using the Car Parking Provisions;
- Practice note 57: The Parking Overlay; and
- Advisory Note 25: New car parking provisions.
The amendment largely adopts the committee recommendations.
The key changes to clause 52.06 are:
- removing the need for a permit when there is a change of use that does not increase demand for car parking to that of the existing use;
- revised car parking rates to better reflect contemporary understanding of current car parking demand. The rates are significantly less than current rates and councils can choose between standard rates (column A of Table 1 at clause 52.05-6) or lower rates (column B of the table) where justified and adopted in a Car Parking Overlay;
- revised decision guidelines to clarify matters that must be taken into account where relevant before car parking requirements are reduced;
- updating the land use terms in the car parking table that align with standard land use terms in the VPPs; and
- greater emphasis on urban design matters including additional design guidelines based on the Australian Standard.
The intention of the new Car Parking Overlay, clause 45.09, is to replace the former Parking Precinct Plans and to allow local variations to the car parking requirements and design standards. Where applied, the overlay will allow local variation to the standard provisions in clause 52.06. A planning authority can use the overlay to:
- provide specific local parking rates and provisions for the local area;
- provide specific design requirements and decision guidelines for the area;
- provide for revised 'cash-in-lieu' arrangements where parking requirements cannot be met on the land2;
- require a permit to exceed a specified parking rate; and
- identify the local area on a planning scheme map.
Not surprisingly, the development industry has largely responded positively to the changes as they are long overdue and largely reflect contemporary practice in the industry. For many years now, a lot of time and effort has been put in by traffic engineers on behalf of developers to justify lower parking ratios than would otherwise be required by the previous clause 52.06. The changes will mean a more realistic and contemporary starting point for the calculation of appropriate parking provisions for developments and for the justification of parking reductions and waivers.
Councils and the DPCD will now need to work on translating existing parking precinct plans into the format and requirements of the new Overlay and consider whether there are other areas within their boundaries that should have an overlay applied.
- The committee was also provided with a copy of an earlier, 2008 advisory committee report upon which the draft DPCD provisions had been based.
- The 2011 committee sought legal advice regarding the inclusion of cash-in-lieu schemes within the provisions. The legal advice received supported the retention of cash-in-lieu schemes provided that they are properly incorporated into the planning scheme and meet the legal tests of need, equity, accountability and nexus.
- Meg LeeSpecial Counsel,
Ph: +61 3 9613 8154
- Chris SchulzPartner,
Ph: +61 3 9613 8772
- Paul LalichPartner,
Ph: +61 2 9230 4026
- Bill McCrediePartner,
Ph: +61 7 3334 3049