Planning Tid Bits by Clause1

What’s Up 01 Planning

A regular feature on the latest in town planning rules and regulations.

Right: The process of making an application to amend a permit does not mean an applicant avoids public notice of the amendment.

Transformation of a planning permit through an amendment application

The Victorian Planning and Environment Act 1987 (the Act) provides the opportunity for a planning permit to be amended, including the permit text, plans or other documents endorsed under that permit. Section 72 of the Act provides A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

The planning process for such applications is similar to that of a regular planning permit application in relation to notice/advertising and appeal rights.

In a recent application brought to the Victorian Civil and Administrative Tribunal (the Tribunal), a planning permit applicant had approval for a multi-storey building containing apartment dwellings and ground floor retail space which they wanted to amend. The amendment application was to construct a building to be used as a hotel with a restaurant at the bottom. The most significant changes included:

• One additional storey but a lowering of the building height • Fewer car parking spaces and fewer levels of basement parking • Changes to the external design • Changes to the interior layout • Changes to the use of the land as noted above

Council refused the application which was subsequently appealed to the Tribunal. The Tribunal found that because the proposal resulted in a “transformation” of the proposal, the appeal was dismissed, concluding:

The differences in the appearance and layout, and the permit conditions are a product of the change in the purpose of the uses proposed. In my view, the development approved by the Permit is proposed to be changed, and what results is a different permit, as opposed to a modified permit.

What’s Up 01

What’s Up 01

On appeal to the Victorian Supreme Court, the Tribunal’s findings on “transformation” were overturned and the matter referred back to the Tribunal. Of interest, the Supreme Court decision in Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 found that:

• Previous Tribunal decisions had formed the practice that a

Section 72 amendment application should not result in a proposal being transformed into something which the original permit did not approve. • In contrast to an event that brings the permit to an end, the word

‘amend’ does not carry with it any particular limitation on the extent of the change that may be involved. • The word amendment does not carry any particular limitation of the kind ascribed by the Tribunal and neither the purpose or overall scheme of the Act requires a limitation to be applied.

A so called transformative change would, if made, still be an amendment to the permit. • The Tribunal erred in dismissing the application on the basis that the proposed changes were transformative. The nature and extent of the changes were properly a matter to be assessed on the merits of the application and not at the threshold. • The decision of the Tribunal should be set aside and the application remitted for hearing.

We may conclude from these findings that Section 72 of the Act provides permit applicants with broad scope for change to existing permits when applying for an amendment. It enables changes to planning permits which result in a different outcome without the need to go through the process of a new planning permit. It may allow changes to permits which would otherwise be prohibited or limited by changes to planning scheme provisions, although as with both permit applications and applications to amend planning permits, the merits of the applications still need to be considered by the Responsible Authority in coming to a decision.

The process of making an application to amend a permit (rather than apply for a fresh permit) does not mean an applicant avoids public notice of the amendment and it still gives third parties the opportunity to object and appeal the decision of the Responsible Authority. This provides for a fair and transparent process with opportunities for review.

Planning Scheme Amendment VC205 – Transport Zones

The Victorian State Government has introduced a state-wide Planning Scheme Amendment VC205 which changes the Road Zones 1 and 2 (RZ1 and RZ2), and the Public Use Zone 4 (PUZ4), to a new Transport Zone (TRZ). The TRZ combines the RZ 1 and 2 and the PUZ4 into a single zone for public infrastructure that is associated with land-based transport, including road and rail elements of the state transport network and significant municipal roads. The new zone provides consistent requirements through a single zone rather than separate zones for different modes of transport. The new TRZ is now shown on planning maps as follows:

Shown on Planning Scheme Maps as

TRZ1

TRZ2

TRZ3

TRZ4

Purpose of Transport Use Zone previous known as

State transport infrastructure Public Use Zone 4 (PUZ4)

Principal Road Network

Significant municipal roads

Other transport uses Road Zone, Category 1 (RZ1)

Road Zone, Category 2 (RZ2)

Public Use Zone 4 (PUZ4)

Clause 36.04 Road Zone is now titled “Transport Zone” and includes the following purpose:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for an integrated and sustainable transport system.

To identify transport land use and land required for transport services and facilities.

To provide for the use and development of land that complements, or is consistent with, the transport system or public land reservation.

To ensure the efficient and safe use of transport infrastructure and land comprising the transport system.

The clause has been further amended to refer to the “Transport System” rather than just roads.

Clause 29 Land Adjacent to a Road Zone, Category 1 or a Public Acquisition Overlay for a Category 1 Road has been retitled Land Adjacent to the Principal Road Network. A planning permit is still required under this clause to create or alter access to specified roads, in this case a road in a Transport Zone 2.

More information about this article or to obtain town planning expertise and advice visit clause1.com.au

Ph: 03 9370 9599 www.clause1.com.au What’s Up 01

What’s Up 01

TPA News Upskilling Boosts Your Bottom Line

With the likelihood of 7 star minimum housing energy efficiency standard imminent, a Thermal Performance Assessor’s software modelling skillset is more critical than ever.

What’s Up 01

Upskilling is a no Brainer for the Savvy TPA

Thermal Performance Assessor skillsets across accuracy and reliability are set to be put under the microscope in the coming months and years with the finance and real estate sectors driving consumer demand for 7 star minimum buildings.

Based on sound skills analysis data, Design Matters National’s bespoke Upskilling and Quality Assurance programs have been specifically developed to equip members perform to these elevated industry standards with confidence and ease.

Offered bi-monthly, the Upskill Now Masterclass is one such example and all Assessors are encouraged to enrol in this targeted TPA training… and of course the earning up to 6 NatHERS Technical CPD points is an added bonus.

Upon completion of this course, you will be able to:

• Confidently and quickly generate accurate NatHERS energy assessment reports and certificates • Quickly revise and check your own work to ensure accuracy and reliability prior to certifying • Be prepared and pass future Quality

Assurance Reviews confidently • Understand the application of the

NatHERS Technical Note, relevant building code energy efficiency provisions and where to find product specification data • Build your own reference library March 22 Masterclass attendee, Deb Guilmartin who has been a NatHERS Accredited Thermal Performance Assessor since 2017 and carries out a moderately high number of energy assessments in her professional practice had this to say about the course:

“As someone who has been an energy rater for 5 years and working alone, the TPA Upskill Masterclass was a fabulous program to both reinforce my previous learnings and teach me several new skills. Matthew Graham is an excellent presenter and to not only have his expertise, but also that of other industry experts, was invaluable. I took on this Masterclass with my CPD requirements already fulfilled for the year and it was definitely worth it. I highly recommend all assessors, new and experienced, to not only participate in the course, but also take the opportunity of having their skills peer reviewed”.

Testimonial from Callan Fowler, an attendee at the 17 February Upskill Now Masterclass:

“The Design Matters TPA Upskill Now Masterclass is an excellent opportunity for both aspiring and practicing thermal assessors alike. A great program involving the best assessors in the industry that bridges theory and practice”.

Another attendee John Boutros reported at the completion of the Upskill Now Masterclass course:

“After 14 years of industry experience, I was sure that I knew all that there is to know in modelling dwellings in the software… Enter the Masterclass. Lured in by the potential 6 CPD points, I signed up.

I can honestly say this was the most productive, and eye opening TPA themed course I have ever done! I learned new things about the software, particularly what the software can “see” and what it cannot. I also had to “un-learn” some habits that no longer apply, and ones that have inexplicably crept in. All this has resulted in increased confidence in my software modelling skills, with the added benefit of more cost effective outcomes for my clients.

Matthew and the Design Matters team should be commended in creating this opportunity, and I am extremely grateful for it.” Newly accredited Assessor, Linda Straughn said this after attending the 17 February 2022 Upskill Now Masterclass:

“The Upskill Masterclass is a great way to be reminded of small items that are easy to forget yet are necessary for an accurate result. I was also surprised in how many little items that were not taught (or I hadn’t comprehended) in the Cert IV course but were mentioned in the Upskill Masterclass. I will be doing an Upskill Masterclass for the first couple of years after accreditation as it’s a good way of keeping up skills or increasing skills, until competency is achieved consistently in all jobs I carry out”.

It’s very true when they say “the higher your skills, the higher your productivity and income”. With the targeted drawing set interpretation and data extraction along with the efficient modelling procedures you will learn during the Upskill Now Masterclass, assessors find they are working more confidently, more efficiently and cost effectively thus not only providing their clients with better service, but doing so in less time… who doesn’t want that?

Upskill Now focusses on teaching participants the fundamental skills of reading and understanding what to look for on an architectural drawing set to then perform an energy assessment of that property.

It was developed in response to skills gaps identified in the Design Matters National (DMN) Quality Assurance Review process. This live, online, industry ready course is for DMN members and non-members and is appropriate for all levels of Thermal Performance Assessors (TPAs).

Ensuring best practice in NatHERS software modelling and compliance with the current NatHERS Technical Note, software user manuals, and relevant building codes are critical in ensuring that housing meets minimum energy efficiency provisions and emission reduction targets are met.

Learn more about the Upskill Now Masterclass on the Thermal Performance Assessor page of the Design Matters National website, discover when the next Masterclass is scheduled in the Events section.

New Materials New Possibilities

By arranging 600mm-wide Hardie™ Fine Texture Cladding lightweight panels at 90 degrees with internal and external corner junctions, they created a sharp-edged shape with a subtle texture to wrap a two-storey extension.

JAHAOS0034_PL_IntersectMag The next collaboration in James Hardie’s architecture series is with Nathanael Preston and Daniel Lane of Melbourne and Hobart architecture firm Preston Lane. Using Hardie™ Fine Texture Cladding and its supporting range of accessories, the team could inject fun and whimsy into their new architectural facade concept; the striking Zig-Zag house.

With the use of Hardie™ Fine Texture Cladding, the Zig-Zag House is an arresting addition to its Melbourne laneway and has become a financially feasible point of inspiration for many homeowners. This speculative project shows how innovative materials can create endless design possibilities without compromising durability or the practical elements of a build. For homeowners, this means that experimental and exciting designs are more achievable than ever before thanks to using Hardie™ Fine Texture Cladding.

© 2022 James Hardie Australia Pty Ltd ABN 12 084 635 558. ™ and ® denote a trademark or registered mark owned by James Hardie Technology Ltd. Image shows a digital representation of Hardie™ Fine Texture Cladding installation. Order your free Hardie™ Fine Texture Cladding Sample & Accessories kit to see it for yourself. Request yours at jameshardie.com.au/specifier

What’s In 02

02 What’s In

This month we feature well renowned local and international designers who continually push the boundaries of sustainable architecture to ensure their residential and commercial projects engage positively within their surroundings. We also interview Leah Bennet, an incredible interior designer from Perth who is carving a path for Indigenous artists through her designs.