lecture two

Statutory Planning and Environment:

Statutory Planning and Environment Lecture Two

Today’s lecture and tute:

Lecture One Today’s lecture and tute Lecture: Housekeeping Catch up on some slides we missed last week. Lecture focussing on the form and content of planning scheme. Tute: Presentation by your colleague. Discussion about tutorial questions.

Slide 3:

Lecture Two Housekeeping

Assessment weighting:

Assessment weighting Marks for each assignment are as follows: Assignment 1: 20% Assignment 2: 50% Assignment 3: 30% This corresponds with the table in the course guide, not the text. Sorry! Lecture One

Des’s book – 4th edition:

Des’s book – 4 th edition More detail on: Process of planning scheme amendments. Consideration and determination of planning permit applications. A review of decisions on the above applications by VCAT. Test will be set in reference to Edition 4. Edition 4 recommended, but your call. Lecture One

Navigating Blackboard:

Navigating Blackboard Announcements pages is your first port of call. Eli and I will always announce updates and put in place links to relevant part of blackboard. Please check regularly. Lecture One

Planning News:

Planning News http://www.artresources.com.au/projects/public-realm/project.php?id=14 Lecture One

Interesting websites:

Interesting websites Planetizen Urban Planning, Design and Development network based in the States. http://www.planetizen.com/ The Melbourne Urbanist – Alan Davies. Planning and development issues with a particular focus on Melbourne. http://melbourneurbanist.wordpress.com/about/ Lecture One

Slide 9:

Lecture Two Statute Law

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Acts and legislation. Needs to be ‘passed’ by parliament or governing body. Legally binding. Lecture One

Slide 11:

Concept of subordinate legislation. Planning and Environment Act 1987 is the Act (or legislation) Planning schemes which are formed in accordance with this act are subordinate legislation . Legally binding. Lecture One

Slide 12:

Lecture Two Administrative Law (also known as common law)

Common Law principles:

Lecture One Common Law principles Decisions and actions by planning authorities, responsible authorities and referral authorities must be in accord with common law principles. If they are not, the decisions can be challenged and overturned.

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Because these principles are derived from “common law” practice they are not written down. Rather, they have been derived from a series of court cases. Also known as administrative law. These common laws establish precedent. Lecture One

Slide 15:

“Common law” wife (defacto. Not legally married.) In the planning context, most administrative law is established through the VCAT process. May also occur through Supreme Court (point of law) or Magistrates Court (enforcement) Lecture One

Slide 16:

Lecture Two Legal concepts

Slide 17:

Three basic unwritten “laws”: The action or decision was invalid because it was “ultra vires” – beyond its powers to make; The action or decision was invalid because it breached the rules of natural justice; The action or decision was invalid because it was based on an error in law. Lecture One

Ultra Vires - beyond power:

Lecture One Ultra Vires - beyond power Whoever made the decision did not have the power or authority to make the decision. The procedures required to be followed were not adhered to. Decision based on irrelevant matters. Powers used for an improper purpose. An unreasonable decision.

Relevant VCAT decisions:

Relevant VCAT decisions Amendment to endorsed plans http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2005/473.html?stem=0&synonyms=0&query=%27Ultra%20vires ESD permit conditions. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2006/467.html?stem=0&synonyms=0&query=%27Ultra%20vires%27%20and%20%27red%20dot%27 Lecture One

Natural Justice:

Lecture One Natural Justice Because decisions affect people’s rights and their property Decision maker must not be biased and not perceived to be biased No pecuniary interest Persons must be given a fair hearing Persons must be able to respond and be represented

Relevant cases:

Relevant cases Boorondara resident concerned she hadn’t had a fair say in pre app meetings. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2010/1323.html?stem=0&synonyms=0&query=%27Natural%20Justice%27%20and%20%27red%20dot%27 Knox MSS review – inadequate explanatory report http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2007/414.html?stem=0&synonyms=0&query=freeman Lecture One

Error in Law :

Lecture One Error in Law The law (the provisions of the Act - or subordinate legislation like a planning scheme) were interpreted incorrectly. If an error has been made and it is proved then the decision is invalid.

Slide 23:

Famous case of “is Melbourne 2030 a ‘real’ strategy / policy of government” (pre introduction of M2030 into the planning scheme) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2005/198.html?stem=0&synonyms=0&query=%27error%20in%20law%27%20and%20%27planning%20and%20environment%20act%27 Lecture One

Other legal terms:

Other legal terms Ratio decidendi – the reason for the decision. Decisions made by decision makers need to be justified against the policy framework. Obiter dictum – said in passing, as an aside (it does not form part of the decision). Lecture One

Slide 25:

Standard practice for courts of law and ‘quasi’ courts of law like VCAT and Panels, to provide reasons for their decisions. Sometimes decision makers like to have a little aside too. Often this is in the form of providing some helpful advice . . . Lecture One

Heirarchy of decision making (for permits):

Heirarchy of decision making (for permits) Responsible authority / Referral authority Victoria Civil and Administrative Tribunal (Planning and Environment List) Supreme Court (points of law only). Lecture One

Slide 27:

Lecture Two The Victoria Planning Provisions

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Lecture Two The Victoria Planning Provisions (VPPs) is a document containing a comprehensive set of planning provisions for Victoria. The aim of the VPPs is to provide a common and consistent palette of controls for Councils to select from to include in their planning schemes.

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Lecture Two The VPP can be considered a template from which Councils will select the best zones, overlays and provisions to apply to their land. 4A of the P&E Act 1987 provides mandate for VPPs http://planningschemes.dpcd.vic.gov.au/VPPs/

Slide 30:

Introduction of VPPs in mid 90’s under Kennett. Major planning reform. Shift towards a more strategic planning approach for Victoria. Neo-liberalist (facilitating development). Much greater level of state control. Lecture One

Slide 31:

Prior to VPPs Councils pretty much did as they wanted. There were thousands of planning scheme amendments each year. As a general rule, there was a lot more ‘case by case’ decision making. Lecture One

Slide 32:

Good and bad points to the VPPs. Read Barbara Grinter’s and Mark Freidrechsen’s essays on the VPP’s (on Blackboard) to get a quick and critical assessment of the VPPs. Lecture One

Slide 33:

Lecture Two The form and content of Planning Schemes

Slide 34:

Lecture Two The Ministerial Direction “ The Form and Content of Planning Schemes” goes into detail about what Council’s must and may include in their planning schemes. http://www.dpcd.vic.gov.au/planning/theplanningsystem/the-role-of-the-minister/ministerial-directions

Slide 35:

There are three main components to planning schemes: The maps (which include zoning maps and overlay maps) The ordinance (that means the written bit) Incorporated documents Lecture One

Slide 36:

Lecture Two To simplify things a little bit (well a lot really), the basic framework of each planning scheme is as follows: State Policy Planning Framework; Local Policy Planning Framework including the Municipal Strategic Statement and Local Policies; Zones; Overlays Particular and general provisions Definitions Incorporated Documents List of amendments.

Slide 37:

Lecture Two

Slide 38:

Lecture Two Policy

State Policy Planning Framework :

Lecture Two State Policy Planning Framework The State Policy Planning Framework (SPPF) contains the policy that relates to whole state. It is common for all planning schemes in the state. The SPPF is prepared by the state and can’t be changed by a council for their planning scheme.

The SPPF sets out the state level policies that apply to: :

The SPPF sets out the state level policies that apply to: Settlement Environment and Landscape Values Environmental Risks Natural Resource Management Built Environment and Heritage Housing Economic Development Transport Infrastructure Lecture One

Slide 41:

Melbourne 2030 is incorporated into various Clauses of the State Policy Planning Framework. Lecture One

Local Policy Planning Framework:

Lecture Two Local Policy Planning Framework The Local Policy Planning Framework is the one part of the planning scheme that is completely local. It comprises 2 parts. The Municipal Strategic Statement (Clause 21) Local Policies (Clause 22)

Municipal Strategic Statement:

Municipal Strategic Statement Clause 21 is the Municipal Strategic Statement (MSS) and this is the part of the planning scheme where a planning authority (council) can set out the land use vision, objectives and strategies for the local area. Under the Act, planning authorities MUST have an MSS Lecture One

Local Policies:

Lecture Two Local Policies Clause 22 contains the Local Policies. These are policies that are developed by the planning authority (council) to apply to land or development in particular instances where there is discretion (i.e. a permit is required) for the use or development.

Slide 45:

For example, a Council may develop a local policy to help them make decisions as to how to deal with applications for development received in areas covered by the Heritage Overlay. Lecture One

Slide 46:

The LPPF (Clause 21 and Clause 22) must not contradict any part of the planning scheme. It should provide a local interpretation of the SPPF. It is approved by the Minister for Planning. Lecture One

Slide 47:

Issues: The “weight” of local policy. Use of local policy to stymie state policy. Supreme Court decision to look at: Glen Eira City Council v Gory [2001] VCS 306 (28 August 2001) http://www.austlii.edu.au/au/cases/vic/VSC/2001/306.html Lecture One

Slide 48:

Lecture Two Zones and Overlays

Zones:

Lecture Two Zones There are 32 standard zones available for planning authorities to select from to apply to land. All land (except Commonwealth Land) must be zoned. Land can only have one zone.

Slide 50:

Some of the more commonly applied zones in the metropolitan area include the Residential 1 Zone (R1Z), the Business 1 zone (B1Z), the Public Park and Recreation Zone (PPRZ) and the Industrial 3 Zone (INZ3) A map shows a land’s zone, and the ordinance describes the provisions that apply in that zone. Lecture One

Excerpt of a Zoning map:

Lecture Two Excerpt of a Zoning map

Slide 52:

Lecture Two The planning scheme zone ordinance sets out requirements for when permits are required for uses and development and specifies when general exemptions from development permission will be made.

Slide 53:

The zone ordinance includes: The purpose of the zone; The table of uses; Provisions relating to development matters such as subdivision, buildings and works, advertising signs and so on. Lecture One

Slide 54:

Lecture Two The table of use has three sections of use within it. These three sections are: Section 1 use: No permit is required for the use (sometimes subject to conditions). For example, no permit is required to use land in a Residential 1 zone for a dwelling. Also known as “as of right” uses.

Slide 55:

Section 2 use: Permit is required for the use as well as compliance with conditions. For example, a permit is required to use land in a Residential 1 zone for a medical centre. Section 2 uses are also known as discretionary uses It is up to the responsible authority to decide whether the use should be permitted or not. It should not be assumed that just because a use is in Section 2, it will get a permit). MSS / Policies. Lecture One

Slide 56:

Section 3 use: The use is prohibited. For example, using land as a brothel is prohibited in a Residential 1 zone. A responsible authority may not grant a permit for the use. http://planningschemes.dpcd.vic.gov.au/melbourne/home.html Lecture One

Slide 57:

Lecture Two

Overlays:

Lecture Two Overlays Land may also be covered by an overlay or overlays. Overlays allow for or control specific types of development. For example, there is a Heritage Overlay which applies to land which has heritage significance. There is a Land Subject to Inundation Overlay which applies to land which may flood in the event of a major storm.

Slide 59:

Lecture Two There are about 23 standard overlays available for planning authorities to select from to apply to particular places where the overlay is required in the municipality. Land does not have to have an overlay, and some parcels of land may have several.

Excerpt of an Overlay map:

Lecture Two Excerpt of an Overlay map

Schedules:

Schedules Zones, Overlays and Provisions may also have schedules. These enable the planning authority to introduce local variations to the zone / overlay or provision. Lecture One

Slide 62:

For example, in the Business 1 Zone, a planning authority can use the schedule to the zone to cap the amount of retail floorspace that may be developed in particular areas. Lecture One

Slide 63:

Lecture Two Particular Provisions

Particular provisions:

Lecture Two Particular provisions The VPP and each Planning Scheme contain particular provisions that relate to environment and amenity issues. For example: 52.05 – Advertising signs 52.08 – Mineral exploration and mining Particularly useful in protecting the environment and amenity issues

Slide 65:

The particular provisions are common across the State. Not all responsible authorities will need to refer to all particular provisions (for example, not many metro Councils would need to worry about Clause 52.26 which sets out provisions for cattle feedlots) Lecture One

Slide 66:

Lecture Two Rescode

Slide 67:

Rescode has been incorporated into the Particular Provisions at Clause 54 (single dwellings on a lot), Clause 55 (2 or more dwellings on a lot) and Clause 56 (residential subdivision). We’ll cover in more detail in a few weeks. Assignment 2! Lecture One

Slide 68:

Lecture Two General Provisions

Slide 69:

Lecture Two The VPP contains standard “General Provisions” which related to the general administration of the Planning Scheme. Things covered include: Existing use rights Decision guidelines Referrals Other matters

Decision guidelines:

Lecture Two Decision guidelines Decision guidelines (clause 65) must be referred to in the consideration of all planning permits. Very broad range of issues that must be considered including . . . .

Slide 71:

Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate: The matters set out in Section 60 of the Act. The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. The purpose of the zone, overlay or other provision. Any matter required to be considered in the zone, overlay or other provision. The orderly planning of the area. The effect on the amenity of the area. The proximity of the land to any public land. Factors likely to cause or contribute to land degradation, salinity or reduce water quality. Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site. The extent and character of native vegetation and the likelihood of its destruction. Whether native vegetation is to be or can be protected, planted or allowed to regenerate. The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard. Lecture One

Referral authorities:

Referral authorities Clause 66 sets out who particular applications need to be REFERRED TO as well as who needs to be NOTIFIED. Lecture One

Slide 73:

A referral under S55 of the Act (Clauses 66.01-66.04) carries great weight. Views of the referral authority MUST be considered and any conditions included in the permit (or permit refused if referral authority say so). For example, any application under the Land Subject to Inundation Overlay (LSIO) needs to be referred to the relevant water authority. Lecture One

Slide 74:

There are also requirements to notify under Clause 52(1)(c) of the Act (Clauses 66.05 – 66.06 of the scheme). This notification provides the body to comment on the application. Their views will be considered by the responsible authority. Lecture One

Slide 75:

Lecture Two Definitions

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Lecture Two Includes a range of definitions for: General terms Advertising terms Land use terms Include the all important nesting tables

Slide 77:

Lecture Two

Slide 78:

Sometimes important terms are not defined, which causes all manner of problems! The planner has to work out how to best define the use using the defined terms in place. Artist studio? Café? Communal gardens? Chinese medicine? Showroom? A planners nightmare! Lecture One

Slide 79:

The definitions are all important as how a use is defined can determine if it is a ‘Section 1, 2 or 3’ use. Lecture One

Slide 80:

Lecture Two Incorporated Documents

Slide 81:

Lecture Two Incorporated documents form part of the planning scheme – they hold as much weight as everything else in the scheme. i.e. they are INCORPORATED into the planning scheme. They can only be changed by a planning scheme amendment process.

Slide 82:

But they are often impossible to find as they physically sit outside of the planning scheme (e.g. they are not on line and often Council’s won’t be able to find copies if you go and ask them! Lecture One

Reference documents vs incorporated documents:

Reference documents vs incorporated documents You can also list ‘reference documents’ in the scheme. Often to underpin statements in your MSS or Local Policies, or an Overlay. Lecture One

Slide 84:

Don’t formally form part of the planning scheme. Used to help understand where the policy basis is. Argued by some that reference documents not strictly necessary – if you write your policy well, reference documents should not be required. Lecture One

Slide 85:

On the other hand, incorporated documents are referred to in order to make a decision. They are an essential part of the decision making framework, along with other relevant provisions in the planning scheme. Lecture One

Slide 86:

Examples: Victorian Code for Broiler Farms, 2009 (state wide) Melbourne Park Redevelopment February 2010 (City of Melbourne) Lecture One

List of amendments:

Lecture Two List of amendments A list in the scheme showing every single amendment that has been made to the planning scheme. Handy to help track strategic planning decisions that have been made over the years.

Thank goodness for computers.:

Thank goodness for computers. Lecture One

Next week:

Lecture One Next week Lab session from 5.30 – 7.30pm Room 56.04.088 Corner Lygon and Queensberry Map here . . . http://www.rmit.edu.au/browse;ID=cxlc0nabtrud On-line students welcome to join us No tutorial

Exciting new technology! (for me anyway . . .):

Exciting new technology! (for me anyway . . .) http://www.screenr.com/Gs1s Lecture One