Legal Insights

Revisions to new car parking provision - third time lucky?

By Maria Marshall, Terry Montebello, John Rantino

• 11 July 2012 • 3 min read

Planning Scheme Amendment VC94

We recently alerted you to changes to clause 52.06 of the Victorian Planning Provisions introduced through Planning Scheme Amendment VC90. In particular, we identified some aspects of the new car parking provisions that required clarification and some potential unintended consequences of the new provisions. We raised these matters with DPCD and the Minister for Planning has now sought to clarify some aspects of the new parking provisions through Amendment VC94 (Footnote 1).

Amendment VC94 amends clause 52.06 to clarify instances where the car parking provisions do not apply, namely:

  • to the construction or extension of one dwelling on a lot in a residential area where such development does not require a permit under the relevant residential zone; and
  • to a use or development undertaken in accordance with a planning or building permit issued before 5 June 2012.

The changes are implemented through:

  • amendments to clause 52.06-1, which, in addition to making some minor drafting changes, insert the follow paragraph:

Clause 52.06 does not apply to the construction or extension of one dwelling on a lot in the Residential 1 Zone, Residential 2 Zone, Residential 3 Zone, Mixed Use Zone or Township Zone unless the zone or a schedule to the zone specifies that a permit is required to construct or extend one dwelling on a lot.

  • inserting transitional arrangements in the form of a new clause 52.06-11, which provides:

The requirements of Clause 52.06 do not apply to any use or development of land that is undertaken in accordance with:

- A permit under the Building Act 1993 that was issued before 5 June 2012 or

- A planning permit that was issued before 5 June 2012.

Further observations on clause 52.06

Our last alert highlighted the introduction of exemptions to third party notice and review rights under the new clause 52.06 in respect of an 'application solely for the provision or reduction of a car parking requirement under this clause'. The exemption is contained in clause 52.06-4.

Curiously, it appears that this exemption does not extend to applications for permits to vary the design standards within clause 52.06-8 but only to provide and reduce car parking.

The design standards for car parking are set out in clause 52.06-8. The drafting of clause 52.06-8 would benefit from further clarification. The opening words of the clause create some ambiguity as to whether the design standards are requirements because it provides that the provision of car parking 'should' meet the 'design requirements of this clause' and the standards themselves also provide that car parking 'should' be designed in particular ways. The use of the word 'should' does not normally establish a requirement as does, for example, the word must. Nevertheless, the clause does provide that permission may be granted to 'vary any dimension or requirement of this Clause.' (Footnote 2) This drafting presumes a requirement exists. While this is merely administratively awkward, if one were seeking to enforce non-compliance, the effectiveness of the drafting of the provision becomes a 'front and centre' issue.

In any event, permission granted pursuant to this clause appears to be separate from any permission granted to provide or reduce car parking pursuant to clause 52.06-3. Accordingly, the exemption to third party notice and review rights in respect of permits for the 'provision or reduction of car parking' would not seem to apply in relation to permit applications made pursuant to clause 52.06-8 and there is no equivalent exemption provided for under clause 52.06-8.

1VC94 also introduced changes to clause 13.01-1 (Coastal inundation and erosion) and clause 18.03 (Ports).
2This provision is awkwardly located beneath diagram 1 and in between design standards 2 and 3. Accordingly, it is not clear whether it is intended to only apply to a variation of the 'requirements' in design standards 1 and 2 or all of those relating to all of the design standards in the clause

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