Property Subdivision: The Town Planning Workflow

Tuesday, April 5th, 2016
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If you are thinking of building one house on a block, chances are you may not need council consent for the development.

That exemption is subject to you meeting council’s minimum lot size requirement as specified in the schedule to the zone and whether or not there are restrictive overlays like a heritage overlay which may burden your property.

However, once you decide to build more than one dwelling on a lot, like a dual occupancy or multi- unit development, the local council planning scheme and other council policies apply. Some of these policies might not have been gazetted.

A two or more lot property subdivision will require a planning permit, which is often run parallel to a development application. Very often, I hear property owners remark “but they have built a huge two-storey box-like house next door, so why is my dual occupancy design less bulky with so much articulation?”

The reason is the house next door did not require council’s permission to develop while the local council policies may demand the built form be more modest and visually less bulky. Is that reasoning appropriate? The jury is out on that issue.

Here is a simplistic workflow which is by no means covers all aspects of the town planning process:

  1. Have your architect or designer prepare a complete set of architectural drawings, including a design response and neighbourhood character study, the floor and roof plans, all elevations, shadow diagrams, overlooking plan, an existing conditions plan incorporating the land surveyor’s feature and level survey and re-establishment survey. Additional drawings could include sections for sloping blocks, the tree protection zone plan, a drawing showing how views are not adversely affected on land burdened by a DDO in this respect, a simple site plan without dimensions for land burdened by the Bushfire Management Overlay (or WMO).
  2. Prepare written reports on how the development complies with the standards and objectives of Rescode and the relevant clauses of the planning scheme. It is to your advantage to engage a designer or architect who is familiar with the planning schemes and the individual council’s expectations. An ESD report is becoming a more frequent request by councils across Greater Melbourne.
  3. Other reports would depend on the overlays which burden the subject land. They may include reports by a heritage consultant, a traffic engineer, a bushfire attack level consultant, a CHMP exemption consultant, an arborist, a flora and fauna consultant, and a hydraulics engineer, to name some. In the typical suburban development, most of these additional reports are exempt, though an arborist and maybe a traffic engineer report is required.
  4. Complete the council’s planning application form and ensure the checklist is satisfied. Submit a recent copy of title, a copy of any covenant or Section 173 agreement if applicable and the application fee. The application fee is as per the current schedule of fees and can range from $386 and up for a subdivision permit to upwards of $700 for the development application. The applicant can be the property owner or the architect/designer or town planner who prepares the documents and who will manage the application at council.
  5. Council will acknowledge receipt of the application and advise other departments within council and external statutory authorities of the application. These departments and authorities could be anyone from the traffic engineer, Melbourne Water, VicRoads, the CFA, the sewer asset owners and the drainage engineer to name a few. The council officer may request further information (the RFI) within 28 days. The applicant has a minimum of 30 days to respond to the RFI and may request an extension of time in writing. Council may issue more than one RFI.
  6. Council has a right to refuse an application before the RFI is issued if it feels the development is completely inappropriate. However, that is rare.
  7. After the RFI response(s), council will advertise the application by way of written notifications to property owners abutting the subject land, or those council feel may be affected by the proposed development. They may advertise it in the local papers or just require the notification be laminated and erected within the front boundary were it can be easily seen.
  8. Objectors to the development should notify council of their concerns in writing within 14 days.
  9. Council will consider the quality of the objection and determine if they are planning related or purely emotionally based. Quite often, a consultation occurs with the planning applicant, the objectors, the planning officer and sometimes the local ward councillors. I have attended meetings which ran late into the evening. It is better to resolve any planning issues as objectors have a right to challenge council’s decision to grant a permit at the VCAT.
  10. Thereafter, the planning officer will form his or her view on whether to grant a planning permit with conditions and may have the authority under delegation to issue the decision. If there are objections to the proposed development, the officer’s report will be considered by the councillors at a meeting. The councillors will vote whether to support the officer’s report or recommend it be refused or whether further work is required by the applicant.
  11. The planning officer may recommend a refusal and its report and reasons for refusal will be available to the applicant.
  12. As an applicant, you may appeal a refusal at VCAT and have 60 days to do so. As an objector, you may appeal the decision to grant a permit at VCAT within 21 days.
  13. Should council not form a decision within 60 days of the last RFI response, you may appeal the application at VCAT, where your application would be considered as being refused.
  14. As an applicant, you can appeal the conditions to the planning permit at VCAT if you feel they are inappropriate.
  15. Is it better to resolve the concerns at council or do you prefer to stick to your guns and go to the VCAT? The VCAT process involves more fees, can be time consuming and you may need to engage expert witnesses and a planner or planning lawyer to represent the property owner. Having represented property owners at the VCAT and having had success at obtaining permits, I feel it is often better to resolve the issues at council unless council is being absolutely unreasonable.

In summary, the town planning process for property subdivision is complex and best left to experienced professionals.

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