Planning Scheme Amendment Guide

 


What is a Planning Scheme?

The Ballarat Planning Scheme determines how land can be used or developed. 

The Planning Scheme provides an urban framework to guide development in locations where it will maximise benefits to the community as a whole while minimizing negative impacts. It aims to provide direction, some degree of certainty and where required protection.

In guiding the location and form of development the Planning Scheme also determines when a Planning Permit is required.

The Planning Scheme is a large document and is accompanied by maps that identify where zone and overlay controls apply. The entire Planning Scheme includes

  • Policies and objectives
  • Controls/requirements
  • Maps
  • Reference or Incorporated documents

All new development must comply with the Planning Scheme, as it includes legal controls under Planning and Environment Act 1987 (the Act).

What is a Planning Permit?

The Planning Scheme determines whether a proposed development:

  • does not require a planning permit
  • requires a planning permit
  • is prohibited

A permit cannot be issued where the proposed development is prohibited.  

The requirement for a Planning permit ensures that Council can carefully consider the potential negative impact on people’s comfort, on other sites or on the environment.  It also allows Council to balance different policy objectives.

Where the use of land is encouraged and unlikely to have an impact then a permit for the use may not be required.

What is a Planning Scheme Amendment?

An amendment may seek to change any local section of the Ballarat Planning Scheme. An Amendment may involve a change to a Planning Scheme Map (often a rezoning) or a change to the ordinance or written part of the scheme or both.

Changes to the Planning Scheme are known as Amendments and the process for an Amendment is set out in the Planning and Environment Act 1987 (the Act)

When is a Planning Scheme Amendment required?

Sometimes a proposed development does not comply with the polices and controls in the Planning Scheme.   If it is not possible to comply with the Planning Scheme the only alternative is to change the Planning Scheme. 

A change to a Planning Scheme requires a Planning Scheme Amendment.  The ‘Amendment’ process can change the controls and policies, but it is difficult to justify and is a long process.

An Amendment to a Planning Scheme can change the legal rights to use and develop land.  Just like a change in the law, changes should be demonstrated to be in the public interest and be open to a public process.

Sometimes a Planning Scheme Amendment may need to be changed to reflect new circumstances.  As people, the environment and our neighbourhoods change so does the Planning Scheme. 

The Planning Scheme requires regular updating to guide new and unforeseen opportunities.

The Amendment process is generally as follows:

(A)PRE

Pre-consultation with Council officers

(B)  APPLICATION CONSIDERATION

 

 

Applicant lodges all required information and is considered by Council.

Council decides whether to support or refuse the request for an Amendment. 

Ministerial Authorisation is required before the next step.

(C)

EXHIBITION

 

The Amendment is exhibited for at least 1 month, this includes letters to adjacent land owners and occupiers seeking their opinion on perceived impact.

(D)

CONSIDER SUBMISSIONS

 

Submissions received during the exhibition are considered by Council. If submissions cannot be resolved then an Independent Panel is required.

(E)

PANEL

 

An Independent Panel appointed by the Minister for Planning considers all submissions and allows people to be heard at the Panel.  The Panel then produces a Recommendation Report

(F)

ADOPTION

 

Council considers the Recommendation Report and makes its final decision on whether to Adopt or Abandon the Amendment.

(G)

APPROVAL

 

If adopted by Council then the Minister must decide whether to Approve or Abandon the Amendment.

 How does the public have their say on a proposed amendment?

Amendments must go through the process to the left.  The Amendment process provides an opportunity for public submissions during the exhibition period.  Additionally an Amendment must be considered by Council three times before being sent to the Minister for Planning for Approval.

Any person may put a submission to Council during the exhibition period of any Amendment.  Generally stronger arguments focus on consistency with State Government and Council policies, impact on people’s amenity (comfort and wellbeing) and other off-site impacts.

Submissions are important as they inform decision makers on how the proposal could impact the neighbourhood and the wider community.  Also submissions can provide new information or perspectives that could change the proposal.

The exhibition of an Amendment does not guarantee that it will go unchanged or even get the final support by an Independent Panel, by Council or the Minister for Planning

Adjacent land owners and occupiers are notified just prior to the formal exhibition process.  Also notices are put in the newspaper and all documents are available for viewing at a number of officers and on the website of the State Government and Council.

How does someone apply for a rezoning?

Before applying for an Amendment the following things should be considered:

  • Is an Amendment required
  • Are you familiar with the Amendment process
  • Are you aware of the cost and time required to process an Amendment
  • Do you need any specialist advice from a planning consultant
  • Do you know what information is required, including technical reports
  • Have you undertaken pre-application consultation with one of Council’s Strategic Planners

The purpose of the pre-application consultation is to identify possible issues that would have to be addressed by the Applicant and what information would need to be submitted with the application.

Pre-application consultation

Intending Applicants should make an appointment with one of Council’s Strategic Planners to discuss their proposal before fully preparing and submitting their application. Council officers will provide advice on the process but are not responsible for developing your application. 

Also officers may direct you to relevant policies that may inform the level of support for an Amendment and the likely success of any application.

There may be benefit in the applicant engaging a planning consultant to advise and prepare documents.

The pre-application consultation can identify what information would need to be submitted with the application.

It would be sufficient at this pre-application stage for the Applicant to give a brief description of the proposal, what land is involved and general reasons as to why the applicant thinks the land should be rezoned. 

Application request

There is no special application form.  However, ALL applications should be submitted hardcopy and electronically (minimum 3 hardcopies).   Additional copies may be required and will be requested by the appropriate officer.  Electronic copies must be on CD and be saved as both a Microsoft Word document and a PDF file.  The application fee must accompany the application when submitted.

The application must contain the following:

Location– a plan showing the location of the land in relation to surrounding streets.

Property description – sufficient details to fully identify the property and its extent e.g. title details or survey plan, street number, area and dimensions.

Site Conditions – description or plan of existing use and development on the land including location of buildings, structures and access, any significant natural features (vegetation, wetlands, creeks, steep slopes etc) and any known heritage items (buildings, sites, artifacts etc.).

Surrounding Development – description or plan describing surrounding use and development and its relationship to the site.

Availability of Services – whether reticulated water and sewerage, storm water etc is available or could feasibly be made available if necessary.

Stormwater Management Plans (if required)

Proposal – clear and full explanation of what planning scheme amendment is requested and what use or development is consequently intended.  Where a specific development or subdivision is intended conceptual plans should be included.  Include copies of any correspondence indicating the attitude of any government agencies or other relevant bodies that have already been consulted.

Justification – the onus is on the Applicant to justify why the existing zoning is not appropriate and why the Planning Scheme should be changed.  It is essential that all proposed amendments are consistent with the State and local planning policies as set out in the State Planning Policy Framework (SPPF) and Local Planning Policy Framework (LPPF) of the Planning Scheme (and if not whether the identified inconsistency can be justified by changes to the policies).  The explanatory report accompanying every amendment must contain the strategic policy justification for the proposal. 

Any economic, social, environmental or community benefits should be indicated as well as how any perceived disadvantages can be overcome.

Documentation – it is expected that all applications for a Planning Scheme Amendment which involve substantial projects or which are submitted by professional consultants will be accompanied by draft amendment documentation as set out in the DOI VPP Practice Notes “Preparing the Documentation For A Planning Scheme Amendment.”

Completed Acceptance of Cost Form – should the preparation of a Section 173 Agreement or the appointment of an Independent Panel to hear any objections be necessary, the costs are to be borne by the applicant.

The following additional information may need to be provided where appropriate and to varying degrees of detail depending on the particular proposal involved, and can be primarily established at the pre-application consultation stage:

Physical condition of the land(slope, drainage, vegetation, soil stability, etc)

Environmental impact(aboriginal protocol requirements, noise, traffic, water and air pollution, flora and fauna, residential amenity etc)

Economic impact(effect on employment, infrastructure provision, tourism, retail hierarchy etc)

Social impact(entertainment, education and recreation opportunities, access to community services etc)

Details of any items of heritage value.

Details of any consultation with government agencies or other bodiesrelevant to the amendment whether in terms of their regulatory/licensing function, potential impact on their services or dependency of the proposal upon the provision of those services.

Draft Outline Development Plan– particularly where the co-ordination of the development of several properties is involved or the site is environmentally/design sensitive.

Draft Section 173 Agreement prepared under the Planning & Environment Act – particularly where guaranteeing the performance of certain actions/works is critical to the appropriateness of the amendment, where it would be unreasonable to require necessary but more detailed design/studies at the rezoning stage or where the actions/duties of one participant are dependent on the performance of certain actions by another participant.

In most cases a Section 173 Agreement will not be required.  However, Council can assist in drafting a suitable Agreement at the applicant’s cost.  An Agreement is a legal document, registered with the Land Titles Office, binding the owners to the covenants specified in the Agreement and must be available for inspection with the amendment when it is exhibited.

Application Process

Following submission of the application a preliminary assessment of the proposal will be made.  Generally the application will be referred internally but not to other government agencies and bodies at this stage unless their input is particularly critical or important to the overall acceptability or feasibility of the proposal.  Depending on the preliminary assessment additional or more detailed information may be requested from the applicant.

Council will then decide whether the application appears supportable and should proceed to exhibition or whether it cannot be supported due to it being contrary to adopted Council Policies or having no justification to warrant further consideration.  If Council supports the exhibition of the amendment it is not to be assumed that Council necessarily fully supports the application.  Council’s decision only means that it has merit and should proceed further to allow public comment and more extensive referral to other agencies during the exhibition period.  Council’s decision as to whether to give full support to the application is only made AFTER the exhibition period.  There is no automatic right to proceed to exhibition.

Council will then write to the Minister for Planning seeking authority to prepare and exhibit the amendment, if authority is granted the amendment will proceed to exhibition.

Following the exhibition of the amendment, the Council considers all submissions and referral responses received and decides whether to adopt the amendment (and, if so, whether to incorporate any suggested changes) to abandon the amendment or to refer the submissions to a Panel.

If there are no objecting submissions and Council decides to adopt the amendment then it is forwarded to the Minister for Planning requesting approval.  The Minister may approve, change or refuse it.

If there are objecting submissions Council will, if possible and appropriate, negotiate a change to the proposed amendment which is acceptable to the proponent, the objector and the Council.  If an objecting submission cannot be satisfactorily accommodated in the Amendment and Council decides to support the Amendment, then the submission must be referred to an Independent Panel (appointed by the Minister for Planning) for assessment.  Fees apply for the consideration of submissions, and the proponent must pay all costs for a hearing by any Independent Panel.

The Panel convenes an informal Hearing to examine the Amendment and the submissions received.  The Council, Applicant and Submitters are invited to make verbal or written presentation to the Panel at the hearing.  The Panel will report back to the Council with its recommendations.  As a result, the Council may decide to change the Amendment, adopt it unchanged or abandon it.  Unless Council decides to abandon the proposal, the amendment is then sent to the Minister for Planning and Local Government requesting approval.  The Minister may approve, change or refuse it. If Council abandons the Amendment there are no appeal rights to the Victorian Civil and Administrative tribunal and no refund of any fees.

TIME

The adequacy of information submitted with the application, the complexity of the proposal, the extent and nature of public submissions, the necessity for an Independent Panel etc, all influence the length of time that it takes to make an Amendment to the Planning Scheme, It is not a rapid or simple procedure and depends on input from several people and organisations apart from Council e.g. Department of Sustainability and Environment, Vic Roads, Water authorities etc.

For a reasonably straight forward amendment (with no objections) Applicants should expect a minimum time of up to six months for the whole process.  Where Section 173 Agreements have to be negotiated, Independent Panel hearings conducted or other government agency requirements satisfied, anywhere from one to six months additional time could be involved.

FEES

Planning Scheme Amendment fees are set by the Minister under the Planning & Environment Act 1987.The fees apply at various stages in the process and are payable by the applicant. Council will not continue to process an amendment while the applicable fees are unpaid.

The State Government has passed the new Planning and Environment (Fees) Regulations 2016 which will commence on the 13 October 2016. Please familiarise yourself with the new fee schedule as a number of fees have increased significantly together with the creation of new fees.

Stage of Amendment Process Fee Payable

Stage      

Stage of Amendment                       

Fee*

1

For:
a)    considering a request to amend a planning scheme; and
b)    taking action required by Division 1 of Part 3 of the Act; and
c)    considering any submissions which do not seek a change to the amendment; and
d)    if applicable, abandoning the amendment

$2,872
(206 fee units)

2

For:
a)    considering

 

 

(i)    up to and including 10 submissions which seek a change to an amendment and where necessary referring the submissions to a panel; or

$14,233
(1021 fee units); or

 

(ii)    11 to (and including) 20 submissions which seek a change to an amendment and where necessary referring the submissions to a panel; or

$28,438
(2040 fee units); or

 

(iii)    Submissions that exceed 20 submissions which seek a change to an amendment, and where necessary referring the submissions to a panel; and

$30,014
(2727 fee units)

 

b)    providing assistance to a panel in accordance with section 158 of the Act; and
c)    making a submission to a panel appointed under Part 8 of the Act at a hearing referred to in section 24(b) of the Act; and
d)    considering the panel's report in accordance with section 27 of the Act; and
e)    after considering submissions and the panel's report, abandoning the amendment.

 

3

For:
a)    adopting the amendment or part of the amendment in accordance with section 29 of the Act; and
b)    submitting the amendment for approval by the Minister in accordance with section 31 of the Act; and
c)    giving the notice of the approval of the amendment required by section 36(2) of the Act.

$453
(32.5 fee units) if the Minister is not the planning authority or nil fee if the Minister is the planning authority

4

For:
a)    consideration by the Minister of a request to approve the amendment in accordance with section 35 of the Act; and
b)    giving notice of approval of the amendment in accordance with section 36(1) of the Act.

$453
(32.5 fee units) if the Minister is not the planning authority or nil fee if the Minister is the planning authority

 

 *For the first 12 months from commencement of the regulations, the fees for planning scheme amendments  will be charged at 50% of the fees set out in regulations.

OTHER FEES (Effective 13 October 2016)

Regulation

Type of Application

Fee

7

For requesting the Minister to prepare an amendment to a planning scheme exempted from the requirements referred to in section 20(4) of the Act.

$3,764
(270 fee units)

8

For requesting the Minister to prepare an amendment to a planning scheme exempted from certain requirements prescribed under section 20A of the Act.

$906
(65 fee units)

10

For combined permit applications

Sum of the highest of the fees which would have applied if separate applications were made and 50% of each of the other fees which would have applied if separate applications were made

12

Amend an application for a permit or an application to amend a permit

a)    Under section 57A(3)(a) of the Act the fee to amend an application for a permit after notice is given is 40% of the application fee for that class of permit set out in the Table at regulation 9
b)    Under section 57A(3)(a) of the Act the fee to amend an application to amend a permit after notice is given is 40% of the application fee for that class of permit set out in the Table at regulation 11 and any additional fee under c) below
c)    If an application to amend an application for a permit or amend an application to amend a permit has the effect of changing the class of that permit to a new class, having a higher application fee set out in the Table to regulation 9, the applicant must pay an additional fee being the difference the original class of application and the amended class of permit

13

For a combined application to amend permit

The sum of the highest of the fees which would have applied if separate applications were made and 50% of each of the other fees which would have applied if separate applications were made

14

For a combined permit and planning scheme amendment

Under section 96A(4)(a) of the Act:
The sum of the highest of the fees which would have applied if separate applications were made and 50% of each of the other fees which would have applied if separate applications were made

 

Additional fees could also apply depending on whether a Section 173 Agreement is required or an Independent Panel is appointed to consider any objections. There will be costs associated with the preparation of a Section 173 Agreement, with costs rising as the terms of the agreement become more complex and require further negotiation.

 

 


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