Allens

Environment & Planning

Focus: Zoning a go go?

19 July 2012

In brief: Last month we reported on a series of three planning reforms and reviews announced by the Victorian Minister for Planning. In further developments, the Minister has, this week, announced a major reform to Victorian zone controls. Special Counsel Meg Lee (view CV) looks at the detail of the proposed changes.

How does it affect you?

  • All land owners and developers should become familiar with the new zone controls that are likely to be applied to their land, in order to determine whether there are greater opportunities for development than under the current controls.
  • Councils will need to review all the residential land within the municipality and consider which of the three new residential zones is appropriate for each area.
  • Comments are sought on the proposed new residential, commercial, industrial and rural zones. Interested parties have until 21 September 2012 to submit comment on the changes.

Background

The Minister released the initial report of the Victorian Planning System Ministerial Advisory Committee in June this year. The committee was not set up to review zoning controls in any detail, and only made some preliminary comments about the overall structure of zones and the desirability of having more flexibility for local variations. It also recommended a review of the Farming Zone, due to its wide application across large areas of Victoria.

The zone changes the Minister has announced are a significant and detailed step in implementing the advisory committee's broad recommendations.

In announcing the proposed changes, the Minister has released a very short discussion paper stating that the aim of the proposed changes is to achieve greater clarity in the planning system, and a balance between areas of future growth and neighbourhoods where it is important to protect local character. The Minister has released Fact Sheets for each of the new zones, together with a draft of each of the new proposed zones.

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Which zones are changing?

The proposal is to delete nine existing zones, namely: Residential 1-3; Business 1-5 and the Priority Development Zone. In their place, it is proposed to introduce five new zones, as follows:

Three new residential zones:

  • Neighbourhood Residential Zone;
  • General Residential Zone; and
  • Residential Growth Zone;

and

Two new commercial zones;

  • Commercial 1 Zone (to replace the current Business 1, 2 and 5 zones); and
  • Commercial 2 Zone (to replace the current former Business 3 and 4 zones).

In addition, it is proposed to make consequential and complementary amendments to 12 other zones, as follows:

  • residential zones (Low Density Residential Zone; Mixed Use Zone; Township Zone);
  • rural zones (Rural Living Zone; Green Wedge Zone; Green Wedge A Zone; Rural Conservation Zone; Farming Zone; Rural Activity Zone); and
  • industrial 1-3 zones.

The changes to the Business zones will be a direct translation from the current zones (that is, any current Business 1, 2 or 5 zoned land will, effectively, automatically become Commercial 1 Zone after the changes are introduced by stating at the start of the zone control that the Commercial 1 Zone applies to land mapped as C1Z and also B1Z, B2Z and B5Z). However, it will be up to Councils to determine which residential 1, 2 or 3 zoned land should be transferred into any of the three new residential zones. This process may take some time and how Councils will carry out this process and what transitional arrangements will apply in the meantime are not yet formalised.

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What are the key aspects of the new and amended zones?

Residential

The concept of the three new residential zones is remarkably similar to the three-tiered residential zoning reform proposed in 2008 by the former Labour government Planning Minister, Justin Madden. Those proposed zones were known as the 'limited change' (dubbed the 'no-go'), incremental change (dubbed, 'slow-go') and significant change (dubbed, 'go-go'). At that time, an advisory committee was appointed to consider the residential zoning changes. The 2009 Advisory Committee Report has now been released by Minister Guy.

The purposes provisions, lot size triggers for permits for dwellings or extension, and new prohibited and 'as of right' uses in each of the draft zones are set out in the following table. The three new zones have similarities to the 2008 colloquial nomenclatures, as follows:

Zone Purposes Threshold lot size requiring permit for dwelling or extension and maximum heights  New use controls
Neighbourhood Zone (or 'no go') to ensure development respects the neighbourhood character 300 sqm (or other area as specified in a schedule)

Maximum height 9m (but this can be varied by Schedule)		 Office use prohibited (other than medical centre)

Shop and food and drink premises not 'as of right' (instead are section 2 uses)
General Residential Zone (or 'slow go') to encourage development that respects neighbourhood character 200 sqm (or between 200-500 sqm if specified in a schedule)

Maximum height 9m (can be varied by Schedule) 		Office a 'permit required' use and must be within 100m of commercial zone

Shop and food and drink premises 'as of right' (subject to conditions)
Residential Growth Zone (or 'go go') to provide medium-density housing at increased densities  80 sqm

Maximum height 12.5m (can be varied by Schedule)		 Office a 'permit required' use and must be within 100m of commercial zone

Shop and food and drink premises 'as of right' (subject to conditions)

Reactions to the proposed residential changes have been mixed1 with many resident action groups welcoming the 'protection' of neighbourhood character, while others have raised concerns about the potential for creating areas of Melbourne that will become inaccessible to lower socio-economic groups and the elderly and therefore shut off to diversity.

Commercial

The proposed new commercial zones amalgamate the existing zone controls, effectively allowing a broader range of uses on business zoned land and, arguably, significantly changing the retail hierarchy.

Significant changes to Business 1, 2 and 5 zoned areas introduced by the Commercial 1 Zone include that there will no longer be a requirement for retail uses (other than adult sex bookshops) to obtain a planning permit. Another significant change to these areas is that there is no permit requirement in the Commercial 1 Zone for any accommodation uses (other than a corrective institution).

The new Commercial 2 Zone removes the former permit requirement for cinema, food and drink premises, restricted retail premises and trade supplies land uses, making these uses 'as of right'. Further, the office floor caps in the current Business 3 and 4 Zones do not exist in the new Commercial 2 Zone. Importantly, the new Commercial 2 Zone allows shops not exceeding 500 sqm as of right, provided they are adjoining, or on the same land as, a small-scale (not exceeding 2000 sqm) supermarket. If these limits cannot be met, shop and supermarket uses require planning approval, but are not prohibited.

Rural

While there are no new rural zones, all of the six existing rural zones will be amended. The Fact Sheet states that the reforms' purpose will be to support agricultural activity, allow more tourism related uses and to provide more flexibility to farmers.

The key changes include:

  • Allowing agricultural uses to be 'as of right' in most of the rural zones, including the Green Wedge Zone, where previously a permit was required. Related uses such as 'primary produce sales', 'rural industry' and 'rural store' are also included in section 1 (as of right) uses (subject to some conditions) in the new zones.
  • Removing prohibitions on uses such as place of assembly, schools, medical centres and accommodation in the Farming Zone. These uses are now allowed, subject to permit. Similar changes have been made to the Green Wedge Zone, although most 'accommodation' uses remain prohibited in this zone.
  • Removing prohibitions on uses such as landscape garden supplies, trade supplies, warehouse and industry, and allowing these uses, subject to permit, in most rural zones. In addition, the 'default' position has been changed such that, if a use is not expressly listed in the zoning tables, then it requires a permit. Under the current rural zones, the default position was that a use not listed, was a prohibited use.
  • Removing the condition attached to certain uses, such as residential hotels and group accommodation, so that these will no longer be required to be used in conjunction with agricultural use of the land.
  • Changing the minimum lot sizes in the Rural Living Zone from 8 to 2 hectares; and in the Farming Zone, by allowing Councils to vary the 40 hectare minimum. The restriction on re-subdivision has also been removed.

These changes have been welcomed by some farming communities, but criticised by others2 due to the risk that more pressure will be put on the urban/rural fringe areas and fragmentation could occur.

Industrial zones

The main change to all of the industrial zones is to remove the maximum floor space limit on office use so that a 500 sqm maximum no longer applies unless, a Council chooses to set a maximum in the Schedule to the zone.

In addition, in the Industrial 3 Zone, 'shop' is now an as of right use, provided it does not exceed 500 sqm and is adjoining, or on the same land as, a supermarket. Similarly, 'supermarket' is also now an as of right use, provided it does not exceed 2000 sqm. These changes allow small format supermarket and specialty shop developments to occur in the Industrial 3 Zone, where previously these were prohibited. If the floor space caps cannot be met, the retail uses are prohibited.

Together with the similar changes made by the Commercial 2 Zone (to the current Business 3 and 4 Zones), these changes have the potential to alter significantly the retail hierarchy by allowing small-scale retail developments to occur out of centre, assuming there is market demand for such developments.

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What are the next steps?

The Government has invited public comment on the proposed new zonings. Interested parties have until 21 September 2012 to comment on the zone changes, which can be done via an online form.

While the changes to the business zoned land will become automatic upon the introduction of the new commercial zones, the process for, and timing of, the translation of land from the current residential zonings to the new zones is unclear.

Our team is happy to assist any clients wishing to prepare a submission on the proposed changes.

Footnotes
  1. See for example: The Age, 'Danger zone: planning the city's future must include consultation', 'New planning rules to protect the rich: ALP', and 'Planning for disaster'. 
  2. See The Age, 'Mixed view on planning reform'. 

For further information, please contact:

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