The new planning controls: What are they and what do they mean for councils?

A suite of new planning controls has been approved in recent times. This includes:

• Precinct Zone
• Housing Choice and Transport Zone
• Built Form Overlay

These controls are designed specifically to both boost the provision of housing and increase the density of housing in and around activity centres and other redevelopment precincts. There is, of course, nothing to stop the zones being used in other places.

We will now take a closer look at the new controls and share some comments and observations in relation to all three.

Housing Choice and Transport Zone

The key features of the Housing Choice and Transport Zone (HCTZ) are as follows:

• It has a set of sharp purposes
• Maximum Building Height / Number of Storeys is specified and depends on site size
• New Clause 55 Code and Clause 58 apply
• Subdivision is exempt from 3rd party rights (e.g. two lot subdivision)
• Retail and office uses are permitted within 100 metres of certain commercial zones.

The purposes of the HCTZ are:

• To provide housing at increased densities around activity centres and well-serviced locations, close to employment, services and public transport
• To encourage a scale of development that provides a transition between more intense development to lower-scale residential areas
• To encourage a diversity of housing types and affordable housing.

Some observations

First, given the clear purposes one would think that you would need to be careful where the zone is applied. For example, a zone that actively encourages increased densities around activity centres and an increased scale of housing would be more than a challenge for an area within a Heritage Overlay. Yet, it seems that the HCTZ has been applied over large areas that have outstanding heritage qualities. It remains to be seen whether this is appropriate. It will certainly make for interesting applications and potentially considerable debates between councils and developers.

Secondly, the Maximum Building Height / Number of Storeys is dependent on whether you are located in HCTZ 1 or HCTZ 2 and lot size. HCTZ1 is essentially 4 storeys or 6 storeys on a large site and HCTZ is essentially 3 storeys or 4 storeys on a large site (1200 sq metres or greater). The recently remodelled townhouse code is called up under clause 55, while for buildings over 5 storeys clause 58 standards apply.

Thirdly, subdivision is exempt from 3rd party participation.

Lastly, like the current Residential Growth Zone, some commercial uses (shop and offices) are permitted inside the zone if the site is within 100 meres of a commercial or mixed use zone. This has the potential to provide for a leaching of the commercial activities into the residential areas.

Precinct Zone

There are 5 key features of the Precinct Zone (PRZ):

• It operates via a head clause and one or more schedules

• It has a potent set of purposes and provides for a schedule to the zone to include objectives, a role statement for the precinct, and a use and development framework plan

• It has a master planning mechanism

• It uses applied zones

• It enables a public benefit uplift mechanism.

The purposes show the PRZ to be a powerful zone designed to bring about substantial change to built form. The purposes include:

• To facilitate substantial change, public benefits and a new urban form that reflects the role of the precinct.
• To facilitate land uses, subdivision patterns, buildings and works in accordance with a use and development framework plan.
• To support sustainable urban outcomes that maximise the use of public and active transport, and reduce car dependence.

Some observations

First, a necessary development framework plan and a role statement which each provide guidance as to the extent of change suggests that there is a built form framework or a structure plan for the centre that has informed the development framework. Secondly, it is noted that the PRZ rolls up a “DPO type” provision to enable master planning of any part of the area in the zone. The masterplan will then guide the way that that area may be developed.

Thirdly, the PRZ, like the Urban Growth Zone, uses applied zones. That is, by reference to either the development framework plan or another plan, different VPP zones can be called up, including for example, the Commercial 1 or 2 zones, or the Mixed Use Zone. Alternatively, a table within the PRZ allows the draftsperson to draft specific table of uses for all or part of the area in the zone. This enables the zone to be tailored to the specific needs of the area perhaps informed by a structure plan.

Lastly, the PRZ enables a Public Benefit Uplift Framework. A separate Public Benefit Uplift Framework document where one has been prepared, is given effect by the PRZ. This is a new feature which will be unfamiliar to many planners. It essentially enables built form metrics in the PRZ, or elsewhere, to be exceeded in return for a public benefit of an equivalent value to the value of the built form uplift which is sought. It will require valuations of the uplift and the public benefits to be agreed and then documented to ensure the public benefit endures.

Public benefits at this early stage have been identified as affordable housing, public realm improvements, open space and (interestingly) strategic land uses. Strategic land uses may be office or some specific type of innovation floor space such as health or research and development. The floor space itself is seen as the public benefit so developers are able to exceed built form metrics by simply delivering this type of floor space.

Built Form Overlay

The Built Form Overlay (BFO) is essentially a Design and Development Overlay (DDO) on steroids and with some toppings.

The key features are:

• It operates via a head clause and one or more schedules

• It has a potent set of purposes and provides for a schedule to the zone to include objectives designed to implement a development framework

• It has a master planning mechanism

• It enables a public benefit uplift mechanism

• It contains a code of built form requirements which may be activated/modified by schedule which can be mandatory, discretionary or “deemed to comply”.

Again, the purposes are powerful and include:

• To facilitate higher density development that provides for high amenity living and working environments close to infrastructure and public transport

• To ensure development contributes positively to the functionality and amenity of the area

• To deliver public realm improvements, and where appropriate, additional public benefits in conjunction with new development

• To encourage land consolidation to facilitate higher density development

• To encourage a diversity of housing types and affordable housing.

• To identify areas where specific design and built form requirements apply.

Some observations

First, like the PRZ, the BFO includes some “toppings” – namely the ability to require a masterplan and the ability to activate a Public Benefit Uplift Framework.

Secondly, one of the intended functions of the BFO is to standardize built form provisions across Melbourne’s activity centres so that irrespective of which municipality you are in, built form standards are drafted in the same way and with the same considerations; generally the only difference is the metric.

Lastly, the BFO identifies 15 built form elements which each contain an outcome and one or more standards. In somewhat familiar language, development:

• Must meet the outcomes specified in a schedule to this zone
• Must meet any mandatory standard specified in a schedule to this zone
• Should meet any discretionary standard specified in a schedule to this zone. However, if the responsible authority is satisfied that an application for an alternative design solution meets the outcome, the alternative design solution may be considered acceptable.

The innovation is that the BFO can also identify deemed to comply standards, and where it does, if complied with, it is deemed to meet the corresponding outcome for that standard.

Importantly, the Built Form Standards may be modified by a schedule and the schedule can determine which standards are to be deemed to comply.

Overall commentary

The new zones and built form controls are part of the housing reform process and will certainly shake up the way that planning is undertaken. Currently, the only centres to use the BFO are those being planned by the SRLA. The PRZ is also proposed to be applied to the SRLA precincts, as well as other ‘priority precincts’. For the 10 activity centres, apart from the use of the HCTZ, planning looks to be mostly done by the Activity Centre Zone or the standard zones and the DDO. Look for that to change in the near future so that the BFO will be the primary tool for regulating built form given the aims of achieving standardization.

Councils will also need to come to grips with Floor Area Ratios (FARs) becoming much more common in built form controls. Where used, care will need to be taken to ensure that FARs are bedded down for those parts of the site (at ground level and above) that the built form has not covered. This will generally need to be done by a section 173 agreement.

With the Public Benefit Uplift Scheme, there is an opportunity to leverage off uplift where that is consistent with other built form outcomes such as overshadowing. All of a sudden “mandatory” is not such a dirty word. Public benefit uplift schemes only work where certain built form controls are mandatory and may only be exceeded by agreement.