Planning Tid Bits

Amendment GC197 – Suburban Rail Loop

Changes have been made to the planning schemes of Bayside, Kingston, Monash and Whitehorse to accommodate the proposed Suburban Rail Loop. The Suburban Rail Loop is the planned extension of the metropolitan rail network between Cheltenham Station at the southern end and Box Hill Station at the northern end. The Suburban Rail Loop is planned to be part of a 90km orbital rail loop to connect every major metropolitan train line from Cheltenham to Werribee and to link priority growth precincts.

The Planning Scheme Amendment GC197 has been approved and gazetted by the Minister for Environment and Climate Change and incorporates the Suburban Rail Loop East Incorporated Document, August 2022 and the Suburban Rail Loop East Infrastructure Protection Incorporated Document, August 2022 into the above mentioned Councils’ planning schemes. The Amendment also introduced Specific Controls Overlays (SCO14 and SCO15) to allow the use and development of the land for the project and to ensure future development in the vicinity of the project does not affect the project’s infrastructure.

Development proposals affected by these new Specific Control Overlays will be referred to a new referral authority, the Suburban Rail Loop Authority. The Amendment also makes the Minister for Planning the responsible authority for administering and enforcing the provisions of the Bayside Planning Scheme, Kingston Planning Scheme, Monash Planning Scheme and Whitehorse Planning Scheme as they relate to the use and development of land for the project under the SCO14.

The Overlay Controls specify at Clause 45.12 that:

Land affected by this overlay may be used or developed in accordance with a specific control contained in the incorporated document corresponding to the notation on the planning scheme map (as specified in the schedule to this overlay). The specific control may:

• Allow the land to be used or developed in a manner that would otherwise be prohibited or restricted.

• Prohibit or restrict the use or development of the land beyond the controls that may otherwise apply.

• Exclude any other control in this scheme.

The Suburban Rail Loop East Incorporated Document, August 2022 includes planning permit triggers for building demolition, removal, relocation and construction or to construct or carry out works in specified areas. This includes earthworks, poles/signs/retaining wall if footings are founded more than 2 metres below Surface Level, internal and external alterations to buildings, among other works. The document also sets out the application information requirements. An application triggered only by these controls is except from notice (advertising) and review (appeal). The Suburban Rail Loop East Infrastructure Protection Incorporated Document, August 2022 has similar controls.

For practitioners, this Amendment adds an additional set of planning permit triggers and works requirements or standards. It appears to catch a wider scope of development buildings and works than the planning schemes did previously. For any proposals within the SCO areas practitioners will need to review the Incorporated documents to understand if and what planning permits are required.

No transitional provisions are provided in the new controls and any current or approved planning permit applications which are not commenced or other projects not yet commenced will be subject to any relevant planning permit requirements within the Overlays.

VC222 – Kindergartens and the 2026 Commonwealth Games Planning Scheme Amendment VC222 is a State-wide amendment which affects all of Victoria’s planning scheme. The Amendment was gazetted on 29 September 2022 and introduces new provisions which:

• Amend State-level planning policy at Clause 19.02-2S Education Facilities by adding the strategy to:

Co-locate a kindergarten facility with all new Victorian Government primary schools.

• Amend Clause 52.30, State Projects, by providing exemptions for planning permit requirements for projects which support the 2026 Commonwealth Games.

This latter amendment includes an additional purpose:

To prioritise the planning and assessment of those state projects to support the 2026 Commonwealth Games, including projects that are intended to benefit Victoria after the Games have concluded.

It also broadens the exemptions from planning permit requirements and allows otherwise prohibited provisions for State projects which will support:

- the 2026 Commonwealth Games; or

- the reuse or redevelopment of a 2026 Commonwealth Games development after the Games have concluded;

The exemptions do not apply to some subdivision of green wedge land and development for which an environmental effects statement has been or is required to be prepared, but does exempt use or development by the Director of Housing for:

• the use or development of accommodation required for the 2026 Commonwealth Games; or

• the use or redevelopment of a 2026 Commonwealth Games development for accommodation.

Such projects require plans and written assessments to be submitted to the Minister for Planning before commencement, including for native vegetation requirements.

When do you require a permit to alter access to a Transport Zone 2?

Clause 52.29 Land adjacent to the Principal Road Network sets out the following planning permit triggers:

A permit is required to:

• Create or alter access to:

A road in a Transport Zone 2.

Land in a Public Acquisition Overlay if a transport manager (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of a road.

• Subdivide land adjacent to:

A road in a Transport Zone 2.

– Land in a Public Acquisition Overlay if a transport manager (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of a road.

The questions around what constitutes “alteration” to access have been the subject of numerous Victorian Civil and Administrative Tribunal (VCAT) decisions, including recently in Curie v Mornington Peninsula SC [2022] VCAT 1052.

In the Curie case, decided on 8 September 2022, the Tribunal agreed with statements made in an earlier decision (Greater Shepparton City Council v D’Agostino [2016] VCAT 1355) in which the Tribunal found that:

… the phrase “create or alter” clearly contemplates a physical change to the access. The Decision in Curie found that a change in terms of volume, frequency or type of traffic attending land is not of itself a change in the use of land, and there is no warrant to read into clause 52.29-02 that the permit required under that provision is only required where another provision of the planning scheme requires a permit.

This decision is in contrast to the earlier decision in Peninsula Blue Developments Pty Ltd v Frankston CC [2015] VCAT 571 (28 April 2015), also a red dot decision, which found that based on:

… recognised principles of law applying to existing use rights, a permit is not required under clause 52.29 simply as the consequence of an intensification of an existing use or a change in the activities of an existing use when no other permit is required for use or development. However, if a permit (or amendment of a permit) is required for use or development under any provision of the planning scheme, which will change traffic access to a road in a Road Zone Category 1, then a permit is required under clause 52.29 even though there may be no change to the physical means of current access arrangements in terms of new buildings or works.

This is an issue that different Councils have dealt with differently over time. The more recent decisions in Curie and Greater Shepparton City Council (above) provides greater certainty around the interpretation of this provision and when a permit is (or is not) triggered under Clause 52.29 for the creation or alteration of access in a Transport Zone.

Practitioners can rely on Curie, to confirm that unless there is a physical change to the access arrangements on site, no permit is required under Clause 52.29.

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