Leaked proposal’s sweeping changes to appeal rights, height limits, overlooking rules

Residents’ right to challenge developments in their street would be severely curtailed and basic standards for new projects redrawn under a proposed overhaul of the state’s planning rules.

The fundamental changes to Victoria’s planning laws, the most sweeping since the advent of rules dubbed “ResCode” by the Bracks Labor government in 2001, are contained in leaked planning department documents obtained by The Age.

While neighbours will lose some of their rights to appeal to the state planning tribunal, the changes would see developers still able to appeal against a council decision if their proposal is refused.

The proposed changes remove a requirement for councils to consider “neighbourhood character” when assessing a permit application and loosen a raft of other development standards including those related to setbacks from the street and neighbours, site coverage, overlooking, overshadowing and the provision of private open space.

Victoria’s neighbourhood character rules require developments to take account of their surroundings even when a neighbourhood or heritage overlay isn’t in place.

The leaked proposal would largely remove these neighbourhood character rules, and is part of the government’s effort to encourage development, as it attempts to meet ambitious housing construction targets.

A backlog at the Victorian Civil and Administrative Tribunal means disputes over residential development permits are now stuck there for an average of more than 200 days before resolution.

Last September, then-premier Daniel Andrews released the state government’s Victoria’s Housing Statement, which outlined setting a target to deliver 80,000 new homes a year, almost double the state’s annual average since 1990.

As part of its pledge to speed up construction, the government last year promised to “clear the backlog [of housing applications by] giving builders, buyers and renovators certainty about how long approvals will take”.

The leaked documents from the Department of Transport and Planning propose removing the ability for Victorians to appeal a planning decision at the state planning tribunal if it meets the new code’s rules.

The government’s draft changes to the planning system “propose to remove the ability for objectors to seek review of a ResCode decision if all the applicable deemed to comply standards are met”.

A government summary of the changes says if a project meets the new standards that would be “sufficient to provide certainty of an acceptable outcome, removing the need for a VCAT review”.

A key change will be the dumping of ResCode’s guidelines to ensure new residential developments fit with the neighbourhood character of the local area.

The leaked documents suggest residents will still get “to have their say” about local developments at council meetings.

The proposed laws allow a developer to build new housing in a “general residential zone” – the most common zone across most of Melbourne – to 11 metres, as high as tall three-storey building, without any ability for a resident to object at the state planning tribunal.

Minimum setbacks from neighbours would also be changed, providing developers with an option to ditch the current gradual height increases next to boundary fences and instead build straight up 11 metres provided the building was set back three metres from the property’s edge.

Another core rule governing the size of a building’s footprint on a site will rise from its current 60 per cent, to as much as 80 per cent depending on the zone.

Opposition planning spokesman James Newbury said the planned changes would “scrap community character” and should be taken to an election rather than be rammed through without proper consultation.

The Age asked the state government what consultation was planned before the changes were rolled out, but it did not respond to this question.

“Labor’s secret plans attack the heart of what is best about our city,” Newbury said, pointing out that scrapping the need for developments to match neighbourhood character would be very destructive.

“Removing the requirement for development to suit the surrounds will mean the worst type of 1970s box flats will become the new normal.”

Newbury said the plan to scrap resident appeal rights to VCAT was outrageous, particularly when developers would retain their rights to appeal.

“Labor’s plan to allow developers VCAT rights, but not residents, strips away the most basic right every Victorian should have,” he said.

Planning Minister Sonya Kilkenny said, through a spokeswoman, that the proposed changes would “streamline assessment pathways with a range of new residential standards for different types of homes”.

“These reforms will bring much-needed certainty to communities and industry about what can be built and where, cutting through the confusion that has delayed new homes from being built,” she said.

The government is yet to decide exactly which parts of the proposals will be implemented.

The Urban Development Institute of Australia, which represents developers, has been part of the group devising the proposed changes.

Its Victorian division chief executive, Linda Allison, said it could often take longer to get a planning permit than it took to build a new house

She said the status quo would not build the tens of thousands of houses Victoria needed.

“That simply is not workable – especially during a deepening housing crisis,” she said.

“In 2023, approximately 52,300 homes were commenced in Victoria – the lowest figure in 10 years. Changes to the way ‘neighbourhood character’ is assessed and removing third-party appeal rights where a project complies with relevant standards are important first steps.”

Planning Institute of Australia’s Victorian division president, Pat Fensham, said ResCode reform was welcome in principle, but the institute was very concerned about the impact of some of the proposed changes particularly on design quality.

“Wider industry input could significantly improve the current drafting,” he said, adding that “much greater rigour” was needed “to ensure controls are fit for purpose and deliver the government’s objectives in ‘streamlining’ approval timeframes”.

“If fundamental changes to review rights at VCAT are proposed, the controls need to be carefully crafted and provide a level of certainty to the community about the quality of future medium density housing,” Fensham said.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.