5. Choosing and applying provisions

5.1 Applying a zone

The zone is the primary tool for guiding the use and development of land. All land (except Commonwealth land) must be included in a zone. The application of a zone to land needs to carefully consider the outcomes sought for the land expressed in the MPS and local planning policies.

Before deciding which zone should be applied to land, consider:

• the land, including any particular physical characteristics, previous uses and the use and development of adjoining land, its ownership and management and the requirements of any other legislation that may apply to the land
• the intended planning outcomes for the land set out in the MPS and the PPF, as a consequence of a previous or current land use, or a particular physical characteristic of the land
• the purposes and provisions of the zone and the extent of local variation available in a schedule to the zone.

5.1.1 Public land

The Ministerial Direction The Form and Content of Planning Schemes specifies that a planning scheme may only include land in a public land zone if the land is Crown land or is owned, vested in or controlled by a Minister, government department, public authority or a municipal council.

Public land zones are not intended to identify the legal status of the land or indicate the existing land use. They are intended to set out appropriate statutory requirements that apply to the use and development of the land in addition to the relevant land management legislation.

Land should not be automatically included in a public land zone just because it is public land. There will be situations where a public land zone is not the most appropriate zone, such as a road or remnant parcel of public land in a rural area. In such cases the use of other zones and overlays can appropriately recognise the purpose for which the land is reserved.

A public land zone can be applied to public land where the surrounding zoning is inappropriate or where there is a special reason to separately identify the public land for planning purposes. This will commonly be where land management arrangements apply under legislation other than the Act.

A useful test in considering if a public land zone is appropriate is to determine if a public land manager or transport manager needs some level of flexibility, protection or exemption that is different from the surrounding zone provisions because of the special nature of the public land or asset and its control (in a land use or management sense) under another Act. For this reason, public land zones should be applied in consultation with the relevant public land manager or transport manager.

A public land manager or transport manager should be able to use and develop public land for any purpose under the relevant land management or transport legislation without the need for a permit. This is achieved by allowing many uses to be Section 1 within a public land zone, subject to the use being conducted by or on behalf of the public land manager, transport manager or a specified public authority. These words should not be interpreted to allow a public land manager or transport manager to have a blanket exemption within the zone to the extent that it could consent to any use or development by another party and have that use or development also automatically exempt from planning control.

The words by or on behalf of should be interpreted with regard to the particular statutory charter of the public land manager under its governing legislation and indicate that the use or development must be undertaken by the public land manager or transport manager itself or by some other person or entity having a direct representative interest or relationship with the public land manager.

Land that is not public land must not be included in a public land zone. Many public authorities established under Victorian legislation are government business enterprises that are commercial in nature. Where the public land use is essentially of a commercial or business nature (such as an office or the provision of services) or comprises a community facility, the surrounding zoning will usually be appropriate.

For example:

• Although the public land zone makes provision for its potential application to public land used for the purpose of ‘education’, most schools can be included in the surrounding zone, particularly residential zones.
• Many works depots or offices for government or local government bodies can be included in a commercial or industrial zone.
• To preserve competitive neutrality, similar private and public land use should be treated in the same manner for zoning purposes where possible.

5.1.2 Special purpose zones

Where the strategic intent of a site is unknown or the application of a combination of zones, overlays and local polices is not able to achieve the desired planning outcomes, a special purpose zone may be used. These zones include the Special Use Zone, the Comprehensive Development Zone, the Urban Growth Zone and the Activity Centre Zone.

Maintaining consistency of planning controls across Victoria is a VPP principle. Using a special purpose zone is therefore discouraged unless there is clearly no suitable alternative.

See PPN 03 Applying the Special Use Zone for more information on the Special Use Zone.

See Chapter 5.6 for information about dealing with site specific matters.

5.1.3 Utility service providers

Land that is owned by or vested in a utility service provider is usually not public land and should not be included in a public land zone. A utility service provider is defined in the planning scheme.

The public land zones are not intended to provide for privatised or semi-privatised bodies that carry out a function of a broadly public nature. Examples include telecommunications carriers such as Telstra and electricity distribution companies. The land used by such bodies should not be included in a public land zone.

5.1.4 Commonwealth land

Victoria’s planning schemes do not apply to Commonwealth land where the land is owned by the Commonwealth or the use is carried on by a Commonwealth government agency within the shield of the Crown. This immunity applies to Commonwealth government departments, defence facilities and several public authorities established under Commonwealth legislation, but does not apply to government business enterprises such as Telstra.

Commonwealth land is not included in any zone or overlay in a planning scheme. It is recognised by the designation “CA” on the planning scheme map.

5.1.5 Flood protection

The planning authority can choose from a range of tools to identify flood affected land in the planning scheme. There are four types of flood provisions available; the Urban Floodway Zone, the Floodway Overlay, the Land Subject to Inundation Overlay and the Special Building Overlay. These reflect the type of flooding and the potential level of risk to life and property. The level of planning control in each provision reflects the potential flood risk.

The Urban Floodway Zone is a restrictive zone that prohibits most uses and development. It is designed to be applied to urban environments where there is a high potential flood risk and only low intensity uses and development (such as recreation) are suitable.

See Chapter 5.2.4 for information on overlays for flood protection.

See PPN 12 Applying the Flood Provisions in Planning Schemes for more information.

5.1.6 Rural land

The Farming Zone, Rural Activity Zone, Green Wedge Zone and Green Wedge A Zone should be used where the planning outcomes sought for the land are primarily farming activities.

The Rural Conservation Zone and Rural Living Zone should be used where farming is subordinate to other land uses or the environmental values of the land.

In determining the most appropriate zone to apply to rural land, the planning authority must consider the degree to which it is acceptable for the land to be used for non-farming activities.

See PPN 42 Applying the Rural Zones for more information.

5.1.7 Transport Zone

The Transport Zone identifies land for Victoria’s transport system. State-managed transport infrastructure is designated Transport Zone 1. A road declared under the Road Management Act 2004 is designated Transport Zone 2 and significant municipal roads are designated Transport Zone 3. Other transport infrastructure is designated Transport Zone 4. Examples are set out in Table 2 below.

Table 2 – Transport Zone designations

5.1.8 Summary of zones

The following is a short summary of each of the zones.

Residential zones

Planning Practice Note 91 – Using the Residential Zones explains the purposes and features of each of the residential zones and how to apply them and their schedules.

Low Density Residential Zone (clause 32.03 and schedule)

This zone is applied to areas on the fringe of urban settlements and townships with reticulated sewerage (0.2 ha minimum) or without reticulated sewerage (0.4 ha minimum) to ensure lots remain large enough to treat and retain all wastewater but are small enough to be maintained without the need for agricultural techniques or equipment.

Mixed Use Zone (clause 32.04 and schedule)

This zone is applied to areas suitable for a mixed-use function, including a range of residential, commercial, industrial and other uses. It is suitable for areas identified for residential development at increased densities including urban renewal and strategic redevelopment sites. A schedule to the zone may specify a maximum building height and local requirements for specified clause 54 and clause 55 standards.

Township Zone (clause 32.05 and schedule)

This zone is applied to small towns with no specific structure of residential, commercial and industrial land uses. A schedule to the zone can be used to change the permit requirement for a dwelling, based on lot size. The schedule can also specify a maximum building height for a dwelling or residential building and local requirements for specified clause 54 and clause 55 standards.

Residential Growth Zone (clause 32.07 and schedule)

This zone is applied to areas suitable for housing diversity and housing at increased densities in locations offering good access to services, jobs and public transport, and to provide a transition between areas of more intensive use and development such as activity centres, and other residential areas.

A discretionary maximum building height of 13.5 metres applies to a dwelling or residential building. A schedule to the zone can be used to specify a mandatory maximum building height and local requirements for specified clause 54 and clause 55 standards.

General Residential Zone (clause 32.08 and schedule)

This zone is applied to areas where housing development of three storeys exists or is planned for in locations offering good access to services and transport.

A mandatory maximum building height of 11 metres and three storeys applies to a dwelling or residential building. A schedule to the zone can be used to:

• change the permit requirement for a dwelling (based on lot size)
• specify a higher mandatory maximum building height
• set local requirements for specified clause 54 and clause 55 standards.

Neighbourhood Residential Zone (clause 32.09 and schedule)

This zone is applied to areas where there is no anticipated change to the predominantly single and double storey character, and also to areas that have been identified as having specific neighbourhood, heritage, environmental or landscape character values that distinguish the land from other parts of the municipality or surrounding area.

A mandatory maximum building height of 9 metres and two storeys applies to a dwelling or residential building. A schedule to the zone can be used to:

• change the permit requirement for a dwelling (based on lot size)
• specify a minimum lot size for subdivision
• specify a higher mandatory maximum building height
• set local requirements for specified clause 54 and clause 55 standards.

Industrial zones

Industrial 1 Zone (clause 33.01 and schedule)

This is the main zone to be applied in most industrial areas. It includes additional requirements for land in proximity to residential areas. A schedule to the zone allows the maximum floor space to be limited for office use.

Industrial 2 Zone (clause 33.02 and schedule)

This zone is for large industrial areas that have a core of more than 1500 metres from residential areas and are of state significance. Note that special requirements apply to the ‘core’ area of this zone (the area more than 1500 metres from a residential zone) as this area is a resource intended to be reserved for uses that require that degree of separation from residential and similar areas. Each industry in the core area will be considered on its merits depending upon its effect on neighbouring industries and communities. Generally, uses that do not depend on such a location are discouraged in this zone.

A schedule to the zone allows the maximum floor space to be limited for office use.

Industrial 3 Zone (clause 33.03 and schedule)

This zone is designed to be applied as a buffer between the Industrial 1 Zone or Industrial 2 Zone and residential areas, if necessary. It may also be applied to industrial areas where special consideration is required because of industrial traffic using residential roads, unusual noise or other emission impacts, or to avoid inter-industry conflict. A schedule to the zone allows the maximum floor space to be limited for office use.

The zone provides for some retailing, including convenience shops, small-scale supermarkets and associated shops in appropriate locations.

Commercial zones

Commercial 1 Zone (clause 34.01 and schedule)

This zone is applied in mixed use commercial centres for retail, office, business, residential, entertainment and community uses. It allows a wide range of commercial and accommodation activities without a permit, including a supermarket or shop.
A schedule to the zone allows a maximum leasable floor space to be specified for office or shop only in rural planning schemes (not in metropolitan Melbourne).

Commercial 2 Zone (clause 34.02 and schedule)

This zone encourages offices and associated business and commercial services together with appropriate industry and retailing. A small-scale supermarket (up to 1800 square metres) is allowed without a permit on land located within the City of Greater Geelong or within an urban growth boundary in metropolitan Melbourne. Any supermarket in a rural area requires a permit to ensure the protection of established centres in regional towns. A supermarket and any associated shops must adjoin or have access to a main road.

Commercial 3 Zone (clause 34.03 and schedule)

This zone is a mixed-use employment zone which is intended to facilitate the establishment and growth of creative industries, small manufacturers and start-up businesses. The zone provides for a wide range of employment uses without a permit, including Arts and craft centre, Education centre, Home based business, Industry (with some exceptions), Manufacturing sales, Market, Office, and Research centre.

A schedule to the zone may provide for an alternate maximum allowable percentage of the combined gross floor area of all buildings on a lot for a Dwelling and Residential building.

Rural zones

Planning Practice Note 42 – Applying the Rural Zones explains the purposes and features of the rural zones and how to apply them and their schedules.

Rural Living Zone (clause 35.03 and schedule)

This zone provides for predominantly residential use in a rural environment provided appropriate land management is exercised. This zone should only be used where this type of use exists, or where such a use can be strategically justified. The zone also allows agricultural activities, provided that the amenity of residential living is protected. A schedule to the zone allows the lot size and a number of other matters to be specified.

Green Wedge Zone (clause 35.04 and schedule)

The purpose of this zone is to recognise and protect non-urban land outside the Urban Growth Boundary in the Melbourne metropolitan area for its agricultural, environmental, historic, landscape or recreational values, or mineral and stone resources. The zone provides a minimum lot size of 40 hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is allowed under particular circumstances.

Green Wedge A Zone (clause 35.05 and schedule)

This zone provides opportunity for most agricultural uses and limits non-rural uses to those that support agriculture or tourism provided that the amenity of residential living is protected. It seeks to protect and enhance the biodiversity, natural resources, scenic landscapes and heritage values and to promote sustainable land management. It also provides opportunity for limited residential development subject to a permit. The zone provides a minimum lot size of 8 hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is allowed under particular circumstances.

Rural Conservation Zone (clause 35.06 and schedule)

This zone is designed to protect and enhance the natural environment for its historic, archaeological, scientific, landscape, faunal habitat and cultural values. Agriculture is allowed, provided it is consistent with the environmental and landscapes values of the area. This zone could also be applied to rural areas degraded by environmental factors such as salinity or erosion. A schedule requires specific conservation values to be stipulated. The zone provides a minimum lot size of 40 hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is allowed under particular circumstances.

Farming Zone (clause 35.07 and schedule)

This zone encourages the retention of productive agricultural land and encourages the retention of employment and population to support rural communities. The zone provides a minimum lot size of 40 hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is allowed under particular circumstances.

Rural Activity Zone (clause 35.08 and schedule)

This zone is designed to be applied to areas where agricultural activities and other land uses can co-exist. A wider range of tourism, commercial and retail uses may be considered in the zone. Agriculture has primacy, but other uses may be established if they are compatible with the agricultural, environmental and landscape qualities of the area. A minimum lot size must be specified in a schedule to the zone. The creation of smaller lots is allowed under particular circumstances.

Public land zones

Public Use Zone (clause 36.01 and schedule)

This zone recognises the use of land for a public purpose and prescribes a number of categories of public use which can be shown on the planning scheme map. This is the main zone for public land used for utility or community service provision. A schedule allows specified uses or managers of public land to be exempted from specified requirements. Alternative sign categories may be specified if required.

Public Park and Recreation Zone (clause 36.02 and schedule)

This is the main zone for public open space and public recreation areas. A schedule allows specified uses or managers of public land to be exempted from specified requirements. It also allows an exemption for buildings and works specified in an incorporated plan. Alternative sign categories may be specified if required.

Public Conservation and Resource Zone (clause 36.03 and schedule)

This zone provides for places where the primary intention is to conserve and protect the natural environment or resources. It also allows associated educational activities and resource-based uses. A schedule allows specified uses or managers of public land to be exempted from specified requirements. It also allows an exemption for buildings and works specified in an incorporated plan. Alternative sign categories may be specified if required.

Transport Zone (clause 36.04)

This zone identifies land in the transport system. State-managed transport infrastructure is designated Transport Zone 1. A road declared under the Road Management Act 2004 is designated Transport Zone 2 and significant municipal roads are designated Transport Zone 3. Other transport infrastructure is designated Transport Zone 4.

Special purpose zones

Special Use Zone (clause 37.01 and schedule)

This zone provides for the use of land for specific purposes. The purposes and the land use requirements are specified in a schedule to the zone. This allows detailed land use requirements to be prescribed for a particular site. Development conditions (where they are necessary) are still set out in a permit rather than the planning scheme. Exemptions from notification and review can be provided in the zone if desired. The Ministerial Direction – The Form and Content of Planning Schemes includes some specific requirements for this zone. Planning Practice Note 3 – Applying the Special Use Zone explains the operation of this zone in more detail.

Comprehensive Development Zone (clause 37.02 and schedule)

This zone is similar to the Special Use Zone but is designed to allow more complex developments in accordance with a comprehensive development plan incorporated in the planning scheme. Generally, only large or complex developments would warrant the use of this zone.

Urban Floodway Zone (clause 37.03 and schedule)

This zone is applied to urban land where the primary function of the land is to carry or store floodwater. It applies to high hazard areas with high flow velocities, where impediment of floodwater can cause significant changes in flood flows and adversely affect flooding in other areas. Where land is subject only to inundation and low velocities, the Land Subject to Inundation Overlay can be used. The views and flooding information of the relevant floodplain management authority must be considered when applying this zone.

Capital City Zone (clause 37.04 and schedule)

This zone provides for the use and development of land in Melbourne’s central city area, recognising its role as the capital of Victoria and as an area of national and international importance. It operates in a similar manner to the Special Use Zone. Detailed requirements are prescribed for a particular site or area through the schedule to the zone. The zone does not specify a sign category but requires a permit for all signs unless a schedule specifies otherwise. Exemptions from notice and review can be given if desired.

Docklands Zone (clause 37.05 and schedule)

This zone provides for the use and development of land in Melbourne’s Docklands area, in a manner consistent with the development strategy adopted by the Docklands Authority. It operates in a similar manner to the Special Use Zone. Detailed requirements are prescribed for a particular site or area in the schedule to the zone. The schedule specifies car parking requirements. Exemptions from notice and review can be specified if desired.

Priority Development Zone (clause 37.06 and schedule)

This is a specialised zone designed to implement approved strategies and developments of state or regional significance at specific locations. The zone facilitates the approval and management of complex projects where agreement on the desired form of development has been reached between the responsible authority and the developer. The detailed provisions of the zone are linked to agreed development plans. The zone exempts development that conforms with an agreed incorporated plan from third-party reviews unless a right to review is specifically included in the schedule.

Urban Growth Zone (clause 37.07 and schedule)

This zone sets out the requirements for the development of new residential and employment precincts on previously undeveloped land. It requires the establishment of a precinct structure plan before a growth area can be developed and subdivided. The zone includes provisions to ensure that any new use and development does not prejudice the future urban use and development of the land where a precinct structure plan is yet to be applied.

Where a precinct structure plan is in place, the zone provides for specific zone provisions to be applied by way of a schedule.

See the Green Wedge Planning Provisions for advice about the operation of the zone and the role and function of precinct structure plans.

Activity Centre Zone (clause 37.08 and schedule)

The Activity Centre Zone is the preferred tool to guide and facilitate the use and development of land in activity centres. The zone encourages a mix of uses and intensive development including higher density housing. The zone allows for a schedule to specify or vary the land use provisions together with other provisions in the zone. See Planning Practice Note 56 – Activity Centre Zone for detailed guidance on the zone.

Port Zone (clause 37.09 and schedule)

This zone seeks to ensure that land use and development recognises the significant transport, logistics and prime maritime gateway roles of Victoria’s commercial trading ports. It supports shipping, road and railway access to those ports and uses that derive direct benefit from co-locating with them. While it provides for the ongoing use and development of Victoria’s commercial trading ports, the zone also seeks to protect uses in adjacent residential zones, the Capital City Zone or the Docklands Zone and any land used for or proposed to be acquired for a hospital or an education centre. An application is exempt from the notice and review provisions of the PE Act except within 30 metres of such land.

5.2 Applying an overlay

An overlay can be used to complement the zoning of land in managing development. Certain overlays also control the use of land in special circumstances. Applying an overlay to land requires careful consideration of the development outcomes sought for the land. These outcomes should be determined by the policies of the MPS and the PPF and any particular characteristic of the land.

In determining whether to apply an overlay, consider:

• the land, including, natural features, previous uses, future uses, adjoining uses, ownership, management and the requirements of any other legislation that may apply to the land
• the intended development outcomes set out in the MPS and the PPF, as a consequence of a previous or current land use, or a particular physical characteristic of the land
• the purposes and provisions of the overlay and the extent of local variation available in any schedule to the overlay.

5.2.1 Overlays on public land

The decision about whether to apply an overlay to public land will depend on the nature of the overlay and the land management legislation of the public land manager or transport manager. For example, a Vegetation Protection Overlay over a state forest duplicates the function of the public land manager. However, a Vegetation Protection Overlay may sometimes be appropriate over significant vegetation on road or railway land (where the core business is not the management of the vegetation).

Like the application of any overlay, there must be specific justification for the additional requirement. Appropriate provision should be made for the routine operations of the public use, such as exemption for regular maintenance.

5.2.2 Heritage

A heritage place should be included in the schedule to the Heritage Overlay. A heritage place may include a single object or an area and includes a place:

• listed on the Australian Heritage Council’s (now closed) Register of the National Estate
• referred by the Heritage Council for consideration for an amendment to the planning scheme
• identified in a local heritage study, provided the significance of the place can be shown to justify the application of the overlay.

Places listed on the former Register of the National Estate or on the National Trust Heritage Register of the National Trust of Australia (Victoria) do not have statutory protection unless they are protected in the planning scheme.

The heritage process leading to the identification of a place must clearly justify the significance of the place as a basis for its inclusion in the Heritage Overlay. The documentation for each place must therefore include a statement of significance that clearly establishes the importance of the place and addresses the heritage criteria. See Chapter 6.5.8 for information on statements of significance in the Heritage Overlay. This statement must be included as an incorporated document in the planning scheme.

5.2.3 Vegetation protection

Overlays are the principal tools in the VPP to protect vegetation in urban environments.

The native vegetation provisions of Clause 52.17 may assist in protecting remnant native vegetation; however, this provision is primarily designed to prevent broad-scale clearing of native vegetation, so will have limited applicability in urban areas with lot sizes under 0.4 hectares.

The VPP includes four overlays that can be used to protect and manage vegetation in urban areas: the Vegetation Protection Overlay, the Environmental Significance Overlay, the Significant Landscape Overlay and the Heritage Overlay. Each overlay includes a schedule that is used to specify how the overlay applies to land within a particular municipality.

Choosing the correct overlay is important and the principles used should be applied consistently through the planning scheme. The following matters should be considered when choosing an overlay to protect vegetation:

• What is to be protected (an individual tree or group of trees, an area of habitat)?
• Why is it being protected (heritage, scientific, cultural, landscape or habitat value)?
• How should it be protected (protection of the root zone, requirements about buildings and works, subdivision)?
• What other requirements apply to the land and are there any gaps (zone provisions, other overlays, native vegetation provisions)?

The overlay selected should accurately reflect the identified objectives so that there is transparency in the application of planning policy and requirements. This may involve weighing up various reasons for protecting the vegetation. For example, the principal reason for a tree’s significance may be its cultural value rather than its habitat value.

If a tree is of Aboriginal significance or contributes to the setting of an historic building, the Heritage Overlay may be more appropriate than the Vegetation Protection Overlay.

The overlay should also include appropriate requirements to achieve the planning objective. In urban situations, buildings and works can have a significant impact on vegetation, including intruding on the root zone. In these cases, an overlay that provides requirements for buildings and works may be chosen. If the root zone is to be protected, the schedule may only require a permit for buildings and works within a certain distance from the vegetation.

The Design and Development Overlay is not a tool to protect vegetation. The schedule to this overlay may, however, contain specific landscaping requirements to ensure that a new development is respectful of the landscape character of the neighbourhood.

See PPN 7 Vegetation Protection in Urban Areas for more information.

5.2.4 Flood protection

There are four flood provisions available; the Urban Floodway Zone, the Floodway Overlay, the Land Subject to Inundation Overlay and the Special Building Overlay. These four provisions are designed to respond to differences in the type of flooding and the potential level of risk to life and property.

The flood provisions do not address the cause of flooding, but the way future land use and development will impact on the flooding problem or be impacted themselves by flooding. The cause needs to be dealt with by separate means. This may include other actions by council and the floodplain management authority, such as flood mitigation measures, that may be linked to a council plan or a floodplain management strategy.

5.2.5 Potentially contaminated land

In accordance with Ministerial Direction No. 1 Potentially Contaminated Land (Direction No.1), where a planning authority determines that the requirements of a preliminary risk screen assessment (PRSA) statement or environmental audit statement are difficult or inappropriate it may defer these requirements, provided the requirements are included in the amendment through the application of an Environmental Audit Overlay or other appropriate measure.

The Environmental Audit Overlay (EAO) is intended to ensure the requirement for a PRSA or an environmental audit under Direction No. 1 is met before the commencement of a sensitive use or any buildings and works associated with that use. This ensures the requirement will be met in the future, but does not prevent the assessment and approval of a planning scheme amendment.

By applying the overlay, the planning authority has made an assessment that the land is potentially contaminated land and is unlikely to be suitable for a sensitive use without more detailed assessment, remediation works or management. The steps set out in PPN30 Potentially Contaminated Land should be used to make this assessment.

Applying the overlay also means that the planning authority has decided the requirements of Direction No. 1 may be deferred. The EAO is a statutory mechanism to provide for that deferment. The EAO is not simply a means of identifying land that is or might be contaminated and should not be used for that purpose. Previous zoning is not a sufficient reason in itself to apply the EAO.

Planning authorities should be careful in applying the EAO. The majority of buildings and works associated with a sensitive use may trigger the need to undertake an environmental audit. These costly requirements are passed on to individual land owners long after the application of the overlay.

Where sensitive uses already exist on a site the planning authority, before applying an EAO, should satisfy itself that these sites are potentially contaminated (through site history records). If there is no evidence of potentially contaminated land it may not be appropriate to apply the EAO to these sites.

5.2.6 Buffers

The Buffer Area Overlay (BAO) can be used to prevent future encroachment and intensification of incompatible use and development within the buffer areas of industry, warehouse, infrastructure or other uses with potential off-site impacts. Criteria must be met and information about off-site impacts must be provided to apply the BAO. Further guidance about applying the BAO is available in PPN 92 Managing Buffers for Land Use Compatibility.

5.2.7 Open drinking water catchments

A reliable supply of drinking water that meets appropriate water quality standards is essential to community health and wellbeing. Use and development of land can affect water quality in waterways from nutrient, chemical and waste contamination, as well as sediment run-off.

When amending a planning scheme to implement risk management measures for residential development in an open drinking water catchment, a Domestic Wastewater Management Plan (DWMP) is needed.

The Planning Permit Applications in Open, Potable Water Supply Catchment Areas (DSE, November 2012) guideline, specifies a one dwelling per 40 hectare limit in special water supply catchment areas, but advises that a DWMP can be used as strategic basis for relaxing that threshold. The guidelines sets out requirements for a suitable DWMP.

Various planning tools are available to a planning authority seeking to manage use and development in an open drinking water catchment, including policy and controls. For example, the Environmental Significance Overlay has been applied in some planning schemes to tailor environmental objectives, permit requirements, referrals and decision guidelines in open drinking water catchment areas.

See Planning Practice Note 55 - Planning in Open Drinking Water Catchments for further information about planning in an open drinking water catchment.

5.2.8  Summary of overlays

The following is a short summary of each of the overlays in the VPP.

Environment and landscape overlays

Environmental Significance Overlay (clause 42.01 and schedule)

This overlay seeks to address areas where the development of land may be affected by environmental constraints such as effects from noise or industrial buffer areas, as well as issues related to the natural environment. The schedule to the zone must clearly set out the environmental significance of the area and the resultant objective of the overlay.

Vegetation Protection Overlay (clause 42.02 and schedule)

This overlay focuses on the protection of significant vegetation, including native and introduced vegetation. It can be applied to individual trees, stands of trees or areas of significant vegetation. The significance of identifying the vegetation must be stated, together with the intended outcomes of the imposed requirements. Planning Practice Note 7 – Vegetation Protection in Urban Areas explains the function of this overlay and other relevant vegetation provisions in more detail.

Significant Landscape Overlay (clause 42.03 and schedule)

The function of this overlay is to identify, conserve and enhance the character of significant landscapes. The schedule to the zone must explain the significance of the landscape, together with the intended outcomes of imposed requirements. Planning Practice Note 7 – Vegetation Protection in Urban Areas explains the function of this overlay and other relevant landscape provisions in more detail.

Heritage and built form overlays

Heritage Overlay (clause 43.01 and schedule)

Any heritage place with a recognised citation should be included in the schedule to this overlay. In addition, any heritage place identified in local heritage studies can also be included.

A heritage place can have a wide definition and may include a single object or an area.

There needs to be a rigorous heritage assessment process leading to the identification of the place. The documentation for each place must include a statement of significance that establishes the importance of the place. The statement of significance must form part of an incorporated document and be specified in the schedule to the Heritage Overlay.

For guidance on applying heritage provisions see Planning Practice Note 1 – Applying the Heritage Overlay and The Victorian Heritage Register Criteria and Threshold Guidelines (Heritage Council of Victoria, updated December 2022).

Design and Development Overlay (clause 43.02 and schedule)

This overlay is principally intended to implement requirements based on a demonstrated need to control built form and the built environment. The intended built form outcome, and the way in which the imposed requirements will bring this about, must be clearly stated. Where possible, performance-based requirements should be used rather than prescriptive requirements.

Incorporated Plan Overlay (clause 43.03 and schedule)

This overlay is used to:

• prescribe a plan for an area to coordinate proposed use or development before a permit can be granted under the zone
• exempt from notice and review any permit applications that conform with the plan.

A plan established by the Incorporated Plan Overlay is incorporated in the planning scheme. It can only be introduced or changed by a planning scheme amendment and will normally be publicly exhibited as part of that process, making it appropriate to use when a plan is likely to affect third-party interests.

Planning Practice Note 23 – Applying the Incorporated Plan and Development Plan Overlay provides advice on the operation of this overlay.

Development Plan Overlay (clause 43.04 and schedule)

This overlay is used where the form of development is appropriately controlled by a plan that satisfies the responsible authority as there is no public approval process for the plan.
A planning scheme amendment is not required to amend a plan established by a Development Plan Overlay.
For more information on the operation of this overlay see Planning Practice Note 23 – Applying the Incorporated Plan and Development Plan Overlay.

Neighbourhood Character Overlay (clause 43.05 and schedule)

This overlay identifies areas of existing or preferred neighbourhood character. It requires a planning permit for buildings and works and the demolition or removal of a building or tree if specified in a schedule to the overlay. A schedule to the overlay can be used to modify certain standards of clause 54 or clause 55 of the planning scheme.

Land management overlays

Erosion Management Overlay (clause 44.01 and schedule)

This overlay identifies land subject to significant erosion. There should be appropriate technical justification to support the application of this overlay.

Salinity Management Overlay (clause 44.02 and schedule)

This overlay identifies land subject to significant salinity. It requires a planning permit for buildings and works, subdivision and the removal of vegetation in areas affected by salinity. All applications are referred to the relevant state environment department. There should be appropriate technical justification to support the application of this overlay.

Floodway Overlay (clause 44.03 and schedule)

This overlay is applied to urban and rural land that is subject to mainstream flooding where the focus of control is on development, rather than land use. These areas convey active flood flows or store floodwater in a similar way to the Urban Floodway Zone but with a lesser flood risk. The identification of these areas should be established in consultation with the relevant floodplain management authority. Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes in Planning Schemes explains the function of this overlay and other relevant flood provisions in more detail.

Land Subject to Inundation Overlay (clause 44.04 and schedule)

This overlay applies to either rural or urban land in riverine areas that are subject to inundation but are not part of the primary floodway. The overlay is also applied to areas subject to coastal flooding, including areas where the flood risk will increase as a result of climate change. The identification of these areas should be established in consultation with the relevant floodplain management authority. Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes explains this overlay and other relevant flood provisions in more detail.

Special Building Overlay (clause 44.05 and schedule)

This overlay applies to urban land that is subject to overland flow resulting from stormwater flooding where the capacity of the drainage system is exceeded during heavy rainfall. This land is not part of a primary floodway from a river or stream. Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes explains the operation of this overlay and other relevant flood provisions in more detail.

Bushfire Management Overlay (clause 44.06 and schedule)

This overlay is applied to areas identified as having high bushfire hazard. Together with the planning requirements for bushfire protection in clause 53.02, this overlay controls development in order to mitigate risk to life, property and community infrastructure. Planning Practice Note 64 – Local Planning for Bushfire Protection explains the use of this overlay in more detail.

State Resource Overlay (clause 44.07 and schedule)

This overlay is applied to protect areas of mineral, stone and other resources, identified as being of state significance, from development that would prejudice the current or future productive use of the resource.

Buffer Area Overlay (clause 44.08 and schedule)

This overlay identifies buffer areas where there is potential for off-site impacts on human health or safety; or significant off-site amenity impacts from industry, warehouse, infrastructure or other uses. The overlay seeks to ensure use and development in buffer areas is compatible with potential off-site impacts.

Other overlays

Public Acquisition Overlay (clause 45.01 and schedule)

This overlay identifies land that is proposed to be acquired for a public purpose. It has the effect of reserving the land under the Land Acquisition and Compensation Act 1986. The authority acquiring the land and the purpose of the acquisition must be set out in the schedule. Once land is acquired by a public authority, it should be rezoned to an appropriate zone.

Airport Environs Overlay (clause 45.02 and schedules)

This overlay is applied to land that is subject to high and moderate levels of aircraft noise and sets out requirements to respond to those noise conditions. The Australian Noise Exposure Forecast (ANEF) defines areas of high aircraft noise levels. Where ANEF contours do not exist, Australian Standard AS2021: 2015, Acoustics – Aircraft Noise Intrusion – Building Siting and Construction, gives guidance for determining an appropriate boundary.

Schedule 1 identifies uses that are prohibited, uses for which a permit is required and associated application referral requirements. It is based on the 25 ANEF contour.

Schedule 2 identifies noise-sensitive uses that require a permit and associated application referral requirements. It is based on the 20 ANEF contour.

Environmental Audit Overlay (clause 45.03)

This overlay is applied to land identified, known or reasonably suspected of being contaminated for which certain obligations under the Environment Protection Act 1970 have not been met. Refer to Ministerial Direction No. 1 – Potentially Contaminated Land for further direction on how the overlay is applied.

Planning Practice Note 30 – Potentially Contaminated Land provides further direction on ad-dressing contamination and applying the Environmental Audit Overlay.

Road Closure Overlay (clause 45.04)

This overlay is used to identify a road that is closed by an amendment to a planning scheme.

Restructure Overlay (clause 45.05 and schedule)

This overlay applies a restructure plan to old and inappropriate subdivisions as a condition of development approval. The restructure plan should be an incorporated document because it controls whether or not a permit can be considered.

Development Contributions Plan Overlay (clause 45.06 and schedule)

This overlay identifies areas where a development contributions plan is in place. The schedule to the overlay summarises the development contributions required. A more detailed incorporated document and local content within the PPF will usually be associated with the overlay.

City Link Project Overlay (clause 45.07)

This overlay exempts specified use and development associated with certain projects from any requirement of the planning scheme. The overlay includes permit exemptions and requirements for certain signs.

Melbourne Airport Environs Overlay (clause 45.08 and schedules)

This overlay seeks to ensure that land use and development in the vicinity of Melbourne Airport is compatible with the operation of the airport and that exposure of new dwellings and other noise-sensitive buildings to aircraft noise is minimised through appropriate noise attenuation measures.

The overlay controls restrict development or require special consideration to be given to particular uses that may be sensitive to noise in areas that are forecast to be affected by moderate to high levels of aircraft noise.

Schedule 1 identifies areas that will be subject to high levels of aircraft noise and is based on the 25 ANEF contour.

Schedule 2 identifies areas that will be subject to moderate levels of aircraft noise and is based on the 20 ANEF contour.

Parking Overlay (clause 45.09 and schedule)

This overlay is used to manage car parking in a precinct where local parking issues have been identified and a common strategy can be adopted to respond to the issues. Planning Practice Note 57 – The Parking Overlay provides guidance on the preparation and application of the overlay.

Infrastructure Contributions Plan Overlay (clause 45.10 and schedule)

This overlay identifies areas where an infrastructure contributions plan is in place. The schedule to the overlay summarises the development contributions required. A more detailed incorporated document will be associated with the overlay, which applies to infrastructure contributions plans incorporated into a planning scheme before 15 May 2018.

Infrastructure Contributions Overlay (clause 45.11 and schedule)

This overlay identifies the area where an infrastructure contributions plan applies for the purpose of imposing contributions for the provision of infrastructure. The schedule to the overlay summarises the development contributions required. A more detailed incorporated document will be associated with the overlay. The Infrastructure Contributions Overlay is used to implement any new infrastructure contributions plan into a planning scheme.

Specific Controls Overlay (clause 45.12 and schedule)

This overlay is to be used to achieve a particular land use and development outcome in extraordinary circumstances that are deemed to be a major issue of policy. It is only to be applied where no other planning control or combination of controls is suitable.
The overlay 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 schedule to the overlay includes a map reference which identifies the application of an incorporated document and the date on which the incorporated document expires.

5.3 Using VicSmart

5.3.1 How VicSmart works

VicSmart is a streamlined permit application process. VicSmart only affects the assessment procedure and has no effect on any permit requirement. Where a proposed development is assessable against only a VicSmart permit requirement, it must be assessed under the VicSmart process, which is set out at Clause 71.06.

Where the VicSmart process is available for a class of application, it will be identified in a table (see Diagram 5) located directly below the permit requirement in the zone, overlay or particular provision. Local VicSmart classes are located in a table in a schedule to Clause 59.15.

The VicSmart table describes the development that is a VicSmart application and identifies the provision under which the application must be assessed. For a local VicSmart application, this information is located in the schedule to Clause 59.15.

The information requirements and decision guidelines for all VicSmart application classes are located at Clause 59.

5.3.2 Creating a local VicSmart provision

Any provision of a planning scheme can specify classes of application that can be assessed through the VicSmart process. A planning authority can include local VicSmart classes in a planning scheme in addition to the state VicSmart classes that apply to all planning schemes across Victoria.

Local VicSmart classes are set out in the schedule to Clause 59.15.

A local VicSmart class can include a permit requirement that relates to a state VicSmart class. While a local VicSmart class may apply to the same permit requirement as a state VicSmart class, it cannot operate to fetter a state VicSmart class.

In deciding whether to create a local VicSmart class, consider:

• The proposed class should be capable of being received, reviewed and determined in 10 business days in almost all cases.
• The proposed class should only require a small number of discrete issues to be considered, with little to no policy balancing.
• Where an external referral authority is required to give comment under Clause 66, this should be able to be obtained before lodgement without the assistance of the responsible authority.
• Where internal comment is required, it should involve no more than one or two basic matters.
• The information required for the proposed class should be simple to prepare.
• The proposed class should not involve matters that would typically require third party notice.
• That a change of use application is generally not suitable for the VicSmart process.
• Whether the proposed class would be more suitable for a permit exemption.

5.3.3 Drafting a local VicSmart table

The tables to the schedule to Clause 59.15 are used to set out the provisions for any local VicSmart class.

The zone, overlay or particular provision

A VicSmart class can include a permit requirement from a single zone, overlay or particular provision, or a class of zones or overlays.

Care should be taken when selecting a class of zones or overlays, as the planning controls within the class will differ in their purposes. Not all zones or overlays will be suitable for the VicSmart process.

The class of application

The class of application must be clearly drafted so a user can easily determine if an application is subject to the VicSmart process.

The class of application should not rely on extensive conditions that need a detailed assessment of the application to decide the appropriate assessment pathway before the application is lodged. It should be possible for the responsible authority to quickly and reliably determine the appropriate assessment pathway upon receipt of the application.

The class of application must be based on an existing application type found in a zone, overlay or particular provision. For example, “to construct a building or construct or carry out works”.

The application type can be further refined to a particular development type. For example, “to construct a building or construct or carry out works with an estimated cost of up to $500,000”.

Conditions can also be specified to narrow the class of application to only particular situations or if certain requirements are met.

Permit requirement

The permit requirement must specify the clause to which the class of application relates.

The clause the VicSmart class applies to must be set out followed by the abbreviation of the planning control. For example: “Clause 32.05-9 (TZ)”.

Where a class applies to more than one provision, all provisions that apply to the class must be specified individually.

Information requirements and decision guidelines

Clause 59 includes state-standard information requirements and decision guidelines for various classes of application.

Where a local VicSmart class is created for a permit requirement that is already subject to a state VicSmart class, the planning authority may choose to use the existing information requirements and decision guidelines provision for that class at clauses 59.01 to 59.14.

Tailored local information requirements and decision guidelines can be specified in the schedule to Clause 59.16.

The tables to the schedule to Clause 59.16 are used to switch on any local or state VicSmart information requirements and decision guidelines by specifying the relevant clause in column 4.

5.3.4 Drafting a local VicSmart information requirement or decision guideline

Clause 71.06 specifies that a VicSmart application must be assessed only against the information requirements and decision guidelines specified for that class of VicSmart application.

Heading

The heading is a short description of the VicSmart class to which the provision applies. It will generally consist of the application type and the planning control to which the class applies. For example, “Licensed premises in commercial zones”.

Information requirements

Any information requirements should be targeted to assist the decision-maker’s assessment of the application. Any information requirement must be specific to the nature of the application and not go beyond the scope of the application. Information that does not reasonably assist a referral body in commenting on the application, or a decision-maker in deciding the application, should not be required.

The information requirements should be determined concurrently with the decision guidelines and reflect the nature and complexity of the application.

The information requirements must always include: ‘A copy of title for the subject land and a copy of any registered restrictive covenant’.

Decision guidelines

Decision guidelines, objectives or other matters in a zone, overlay, particular provision, schedule or policy relevant to the class of application must be restated or referenced in the provision if they are to be considered as part of the application.

References to other provisions should be used with restraint to ensure the scope of assessment does not go beyond that appropriate for the VicSmart process.

Decision guidelines should be neutrally expressed and require a decision-maker to consider something. They should not be framed in terms that direct the decision-maker to consider a matter in a particular way.

Decision guidelines must not include informal referral requirements. Only referral comments required under section 55 of the Act may be included as a decision guideline.

References to local policies and unincorporated studies, statements of significance or strategies should generally be avoided as they may unintentionally broaden the scope of matters for consideration.

5.4 Managing referral and notice requirements

The Act provides that a planning scheme can require that persons or bodies be given copies or notice of an application:

• Section 55 requires that a responsible authority give a copy of an application to every person or body that the planning scheme specifies as a referral authority for that kind of application.
• Section 52(1)(c) requires the responsible authority to give notice of an application to any person specified in the planning scheme.

What is the purpose of a referral?

The key purpose of the referral process is to give a person or body whose interests may be affected by a permit application the opportunity to provide advice to the responsible authority about whether a permit should be granted. Referrals are integral to the application process and avoid the need for referral authorities to establish their own separate land use and development assessment and approval processes

5.4.1 Using Clause 66 of the planning scheme

All referral and notice requirements must be specified in clause 66 of the planning scheme.

Clause 66 identifies the type of referral authority for each kind of application that must be referred and the persons and bodies that must be given notice of particular kinds of applications under state standard provisions. This clause also enables a responsible authority to specify a referral authority and persons and bodies that must be given notice for a particular kind of application under a local provision.

Operation of Clause 66

See Chapter 3.3.1 of Using Victoria's Planning System for more information about the operation of clause 66.

5.4.2 Two types of referral authority

There are two types of referral authority - a determining referral authority and a recommending referral authority. The duties of the two types of referral authority are the same (as specified in section 14A of the Act) but their powers differ.

Both types of referral authority can object to the granting of a permit, decide not to object or specify conditions to be included on a permit. However, the effect of that advice on the final outcome of an application is different for each type of referral authority as shown in Table 4.

Table 3: Referral authority powers

Responsible authority obligations after the following actions from a referral authority

5.4.3 Are existing referral requirements necessary?

Planning authorities and referral authorities should together consider whether an existing referral requirement under clause 66.04 remains necessary or whether the referral can be dealt with by an alternative arrangement. The four-year review of the planning scheme provides a good opportunity to regularly evaluate the effectiveness of referral provisions in schemes.

Use standard agreements

The referral and notice requirements of clause 66 do not apply if, in the opinion of the responsible authority, the proposal satisfies requirements or conditions previously agreed in writing between the responsible authority and the referral authority. Avoiding the need to refer applications can speed up decisions.

An agreement may specify standard conditions that must be included on any permit granted. It may also specify requirements, which if satisfied by the proposal, means that the application does not need to be referred.

Agreements must be clear, easy to understand and publicly available (preferably on the responsible authority’s website).

Specify standard conditions and requirements in the planning scheme

To avoid unnecessary referrals and delays, responsible authorities and referral authorities should consider including appropriately drafted standard conditions and requirements in the planning scheme. If a referral authority’s standard permit conditions can be applied across all planning schemes then they should be included in a state standard provision. Otherwise, the relevant provision may enable permit conditions to be included in a local schedule. Section 62(1)(a) of the Act requires the responsible authority to include in a permit any condition that the planning scheme requires to be included.

Some planning scheme provisions also enable application requirements to be included in a local schedule. If a referral authority routinely requests specific information about particular kinds of applications, this information should be included as a standard application requirement in the schedule. Under section 47(1)(c) of the Act, an application must be accompanied by information required by the scheme.

It may also be possible to incorporate a referral authority’s requirements into the description of the kind of application that must be referred. For example, if the referral authority is only interested in development applications within 30 metres of a waterway, this requirement could be included in the referral provision so that applications outside this distance do not need to be referred.

Change from a determining referral authority to a recommending referral authority

Some existing determining referral authorities may provide specialist or technical advice to the responsible authority that:

• assists the responsible authority in making an informed decision on an application but does not need to direct the outcome of the application
• needs to be balanced against other scheme requirements to achieve a net community benefit or produce acceptable state and local policy outcomes.

In these circumstances, consider whether the status of the referral authority should be changed from a determining referral authority to a recommending referral authority. A planning scheme amendment will be required to make this change.

Give notice rather than require referral

A planning scheme can require that specified persons be given notice of particular kinds of applications in accordance with section 52(1)(c) of the Act. Under section 38 of the Interpretation of Legislation Act 1984 a ‘person’ includes a body politic (for example, a government department or authority) or corporate as well as an individual.

A person or body given notice under section 52(1)(c) of the Act has the same rights and obligations as any other person given notice of an application.

Consider whether giving notice of the application would meet the referral authority’s requirements instead of referring the application. A section 52(1)(c) notice may be appropriate if the referral authority needs to be made aware of an application but does not need to:

• receive a copy of the application
• direct the outcome of the application.

5.4.4 Introducing new referral or notice requirements

When should a section 55 referral requirement be included in a planning scheme?

A new section 55 referral should only be introduced where either:

• the decision of the referral authority must direct the outcome of the application (a determining referral authority)
• the referral authority’s specialist or technical advice is necessary for the responsible authority to properly assess and decide the application, but does not need to direct the outcome (a recommending referral authority).

A section 55 referral may be appropriate where a particular type of use or development requires case by case consideration by the referral authority to ensure that:

• implementation of a State Government policy or program is not adversely impacted, for example, the protection and management of Victoria’s biodiversity or natural resources
• relevant specialist and technical advice is made available to the responsible authority
• proposed use or development will satisfy criteria or standards in other applicable legislation or regulations
• public assets, for example infrastructure, public open space or waterways, are protected.

Before introducing a new referral requirement, planning authorities and potential referral authorities should consider the following questions:

• What are the reasons for the referral? How do they relate to the purpose of the planning scheme provision that triggers the application?
• Should the decision of the referral authority direct the outcome of the application or should it be advisory only?
• Does the referral authority have resources and processes in place to ensure timely and effective advice, and to comply with the duties and requirements of the Act and Regulations?
• Will a referral provide a simple and effective means of implementing the referral authority’s objectives? Would other mechanisms, for example, a notice requirement under section 52(1)(c) of the Act, be more effective?
• Can standard conditions and requirements be specified in an agreement between the referral authority and the responsible authority or in the planning scheme to avoid unnecessary referrals and delays?
• Can the description in the planning scheme of the kind of application that must be referred be drafted to avoid unnecessary referrals?

A referral authority should not be specified in the planning scheme simply because they may be useful in assessing certain types of applications or be used as a substitute for the responsible authority’s own assessment of the application or if the existing powers of the authority under other legislation are duplicated through planning.

An amendment to a planning scheme to specify a person or body as a referral authority should only be prepared with the agreement of that person of body.

When should a section 52 notice requirement be included in a planning scheme?

A section 52 notice requirement should be used when the comments or advice of the person or body may influence the outcome of the application, but the circumstances do not warrant:

• that person or body receiving a copy of the application and prescribed information
• their comments or advice directing the outcome of the application.

Unlike a section 55 referral, under section 52(1)(c) only notice of the application is required to be given, not a copy of the application. Before including a new notice requirement, the responsible authority and the person or body to whom notice will be given may agree on additional information from the application that will accompany the notice. Otherwise, it is the responsibility of the person or body given the notice to view the application at the offices of the responsible authority.

Questions to consider before introducing a new notice requirement:

• What are the reasons for the giving of notice?
• Why would the person or body have a special interest in that kind of application?
• Should additional information about the application accompany the notice?
• Does the person or body have adequate resources and processes in place to respond to a notice?
• How can the description of the kind of application that the new notice requirement will apply to be drafted so as to avoid giving unnecessary notice?

See Using Victoria’s Planning System for more information.

5.5 Creating a schedule to a general or administrative provision

The schedules to the provisions of Clause 72 are primarily determined by the Ministerial Direction The Form and Content of Planning Schemes. However, they do contain some elements that must be modified by the planning authority.

5.5.1 Clause 72.01 – Responsible authority for this planning scheme

The schedule to Clause 72.01 determines who is the responsible authority for the various functions and duties of the planning scheme.

Responsible authority for administering and enforcing this planning scheme

The responsible authority will generally be the municipal council for the area covered by the planning scheme. The following wording should be used:

Responsible authority for administering and enforcing a provision of this planning scheme

The planning scheme may specify a different responsible authority to the municipal council for a particular area of land or a provision in the scheme. Most commonly, the planning authority will specify that the Minister for Planning will be the responsible authority for a particular area or provision. The wording for determining an alternate responsible authority is:

It is not necessary to specify the various provisions of the Act or the powers the Minister for Planning may exercise as responsible authority unless those powers are not to be general in nature.

Person or responsible authority for issuing planning certificates

This will be the Minister for Planning or the responsible authority.

Responsible authority for VicSmart applications

This should usually be the Chief Executive Officer of the council, and expressed as follows:

5.5.2 Clause 72.02 – What area is covered by this planning scheme?

Area covered by this planning scheme:

This provision should use the following words:

5.5.3 Clause 72.03 – What does this planning scheme consist of?

Maps comprising part of this planning scheme:

This provision lists the zone and overlay maps that comprise the scheme. Each map that comprises part of the scheme is listed in a bullet point in the schedule to this clause. The overlays contained within that map are specified in an abbreviated form with the corresponding map number, as shown in the following example:

5.5.4 Clause 72.04 – Incorporated documents

State incorporated documents are specified in Clause 72.04. Any local documents incorporated in the scheme must be listed in the table in the schedule to Clause 72.04, in the format set out in the Ministerial Direction The Form and Content of Planning Schemes.

5.5.5 Clause 72.05 – When did this planning scheme begin?

Specify the date the scheme began in the following format:

5.5.6 Clause 72.08 – Background documents

See Chapter 6.6.2 for information about using a background document.

5.5.7 Clause 74.01 – Application of zones, overlays and provisions

Clause 74.01 is used to provide a snapshot statement of how and why a requirement has been applied in a planning scheme.

Relevant zone, overlay and other requirement-based provisions are listed in sequence with the VPP and a short context statement is added for each provision.

The information in the schedule should give context to the relationship between the policies and requirements in the planning scheme.

5.5.8 Clause 74.02 – Further strategic work

Further strategic work should be a concise list of work the council intends to undertake before the next planning scheme review under section 12(B) of the Act (occuring on a 4 yearly cycle) and be set out in the schedule to this clause. The work must have a land use and development focus and must relate to matters that can be implemented through a planning scheme.

A responsible authority must not take this clause into account when making a decision.

5.6 Considering a site specific provision

There are three methods of dealing with site specific proposals or requirements in a planning scheme.

Method 1: Apply a special use zone

One of the special use zones may be used with an appropriate schedule. Generally, this method should only be used where a proposal is not discretionary in the zone that would otherwise apply to the land.

Method 2: Use the combined amendment/permit process to rezone the land to a suitable zone and issue a permit at the same time

If the land can be rezoned to an appropriate zone in which the proposal would be discretionary, the combined amendment/permit process can be used to rezone the land and issue a permit at the same time. Using this process avoids the need for two rounds of public consultation, allows the proposal to be considered in one process and maintains the permit as the instrument of development approval. More detail about this process is included in Using Victoria's Planning System.

Method 3: Include the proposal in a Specific Controls Overlay

Under extraordinary circumstances and if none of the above methods is appropriate, a proposal can be included in the Specific Controls Overlay under Clause 45.12.

Some earlier site specific controls are included in the table to the schedule to Clause 51.01 (Specific sites and exclusions). However, this method is redundant and the Specific Controls Overlay must now be used.

Clause 45.12 should only be used for exceptional cases or to achieve a particular land use and development outcome that is consistent with a major issue of policy and is necessary to achieve or develop the planning objectives of Victoria.

5.7 Considering mandatory provisions

Victorian planning schemes largely consist of performance-based provisions that require an assessment to decide whether a proposal:

• meets relevant planning objectives
• achieves an appropriate balance between competing planning policies.

Performance-based provisions can facilitate variation and innovation in how a use or development is planned. They can also accommodate unforeseen circumstances peculiar to a particular application.

While mandatory provisions only provide fixed planning outcomes, there are circumstances where they are warranted. Mandatory provisions provide greater certainty and ensure a preferred outcome and more efficient process. Although mandatory provisions are the exception, they may be used to manage:

• areas of high heritage value
• areas of consistent character
• sensitive environmental locations such as along the coast
• building heights in some activity centres.

A balance must be struck between the benefits of a mandatory provision in the achievement of an objective against any resulting loss of opportunity for flexibility in achieving the objective.

5.7.1 What is a mandatory provision?

A mandatory provision is a requirement or control that must be met and provides for no opportunity to vary the requirement.

A performance-based provision (also called a discretionary provision) provides for flexibility in the method or measure used to achieve a required outcome.

5.7.2 When are mandatory provisions appropriate?

Mandatory provisions usually specify a maximum or minimum built form requirement. Most mandatory provisions are for building heights, but they can also relate to:

• site coverage
• plot ratio
• setbacks to buildings
• lot sizes
• open space areas
• sight lines.

Mandatory provisions may be considered if it can be demonstrated, through a detailed assessment and evidence-base, that discretionary provisions are insufficient to achieve desired outcomes.

The criteria below, provide a guide to assessing the appropriateness of a proposed mandatory provision. Each question should be fully considered and justified.

The planning authority should also consider whether the proposed mandatory provision reduces costs for councils, applicants and the community.

Controls for mandatory height and setback for activity centres are dealt with in Planning Practice Note 60 - Height and Setback Controls for Activity Centres. That practice note outlines the level of work necessary to demonstrate that mandatory provisions are required and provides guidance on implementation approaches.

5.7.3 How to write mandatory provisions in planning schemes

In writing a mandatory provision, the provision should:

• implement an objective
• be clear in its intent to users
• be able to achieve consistent and predictable results
• be as measurable as possible using a quantifiable measure
• be expressed in plain English using common terms.

5.7.4 Where can a mandatory provision be specified?

Mandatory provisions can be specified in a zone or an overlay if required by the Victoria Planning Provisions.

The Design and Development Overlay is the most appropriate tool to implement mandatory built form requirements. Opportunities may also exist in some other zones and overlays to mandate controls.

A local planning policy is not a control. Local planning policies have a role to guide the exercise of discretion created by a zone, overlay or particular provision. Local planning policy cannot include mandatory provisions or remove a discretion under a planning control.

It is important to use clear language in both mandatory and performance-based provisions to ensure their effect is properly understood.

5.7.5 Further reading on mandatory provisions

Proposals for mandatory provisions have been dealt with by Planning Panels Victoria in numerous reports. Some helpful panel reports include:

• Bayside Planning Scheme Amendment C2
• Stonnington Planning Scheme Amendment C58
• Port Phillip Planning Scheme Amendment C52
• Queenscliff Planning Scheme Amendment C7
• Melbourne Planning Scheme Amendment C20
• Hobsons Bay Planning Scheme Amendment C11
• Mornington Peninsula Planning Scheme Amendment C204
• Stonnington Planning Scheme Amendment C272
• Bayside Planning Scheme Amendment C126
• Maribyrnong Planning Scheme Amendment C162
• Yarra Planning Scheme Amendments C293 and C291.

Page last updated: 18/04/24