Going round the Bend – New Fishermans Bend Planning Controls Released

November, 2017

By Jenelle Cramer, Senior Associate and Hannah Wilson, Law Graduate

Following the release of the Draft Fishermans Bend Framework Plan (Framework Plan) in the last fortnight, the Fishermans Bend Taskforce has now published the accompanying draft planning controls intended to be incorporated into the Melbourne and Port Phillip Planning Schemes as GC Planning Scheme Amendment 81 (GC81). These are intended to replace interim planning measures for the Fishermans Bend precincts of Montague, Lorimer, Sandridge and Wirraway. The fifth precinct, the Employment Precinct, will be progressed via separate planning processes.

As promised, GC81 proposes built form controls including a new Floor Area Ratio and Floor Area Uplift scheme, overshadowing controls, dwelling density controls, identified locations for public infrastructure, and environmental sustainability measures. We run through a few of the headliners below.

Maximum dwelling density

The proposed new MSS provisions seek to set novel maximum dwelling density limits for each of the precincts, as set out below.

Height Controls: Storeys, FARS and FAUs

Height will be controlled by storey height limits, Floor Area Ratios (FAR) and potential Floor Area Uplifts (FAU).

Storey height limits appear to be discretionary rather than mandatory unless otherwise stated. In Lorimer and Sandridge this ranges from 4 storeys through to unlimited, with the latter representing significant land area. In Wirraway and Montague, it ranges mainly from 4 to 24 storeys, with small pockets of designated ‘unlimited’ areas. Wirraway seems to be the only precinct with mandatory 4 storey areas.

In conjunction with building storey height restrictions, FAR controls will be implemented, comprised of:

  1. prescribed FARs for each precinct, being calculated by dividing the total floor area of a building by the total developable site area (FARs are generally higher in core areas and lower in non-core areas and range from as high as 8.1:1 in Sandridge to a much lower 2.1:1 in Wirraway);
  2. minimum preferred (rather than mandatory) employment generating, non dwelling use FARs, ranging from 1.6:1 in Montague to 3.7:1 in Sandridge. It appears that these will only be available for core areas, and will be in addition to rather than within general FAR controls, i.e. commercial floor area can sit outside the general FAR calculations; and
  3. Floor Area Uplift controls, allowing developers to achieve floor area in addition to the applicable FAR in exchange for provision of a public benefit contribution discussed below.

FAUs are calculated by reference to the Public Benefits Ratio Schedule. Subject to agreement, a developer could achieve:

  1. for each affordable housing unit provided, an uplift of eight additional dwellings, subject to the affordable housing mix replicating the dwelling mix proposed within the development;
  2. for additional public open space, one additional dwelling to the equivalent value of the additional open public space subject to specified approvals on value; and
  3. for delivery of community infrastructure, one additional dwelling to the equivalent value of the community infrastructure, subject to the approval of the Valuer General and the Victorian Government Land Monitor.

Built Form Requirements

Development must achieve all built form requirements which cannot be varied, save for in the expressly stated circumstances. There are a range of different built form specifications including:

  1. preferred and mandatory street setbacks ranging from a preferred 5 metre setback and a mandatory 3 metre setback for buildings up to 8 storeys in height to a mandatory 10 metre setback for buildings exceeding 20 storeys;
  2. building separation within a site ranges from 6 metres to 20 metres depending on building height and the presence of habitable rooms;
  3. side and rear boundary setbacks apply to building storey heights as follows:
    1. 6 storeys high – 6 metre setback (or 3 metres where walls do not include a habitable room window and/or balcony);
    2. 7 to 8 storeys high – 9 metre setback (or 3 metres where walls do not include a habitable room window and/or balcony);
    3. 9 storeys to 20 storeys high – a setback of 6 metres is required for the first 6 storeys and a minimum of 10 metres is required for levels above this (noting that anything exceeding 6 storeys can have a 5 metre setback where walls do not include a habitable room window and/or balcony); and
    4. Above 20 storeys high – a setback of 6 metres is required for the first 6 storeys and a minimum of 10 metres is required for levels above this.

No Public Acquisition Overlay proposed

No Public Acquisition Overlay is proposed even though there are numerous proposed public parks, roads and other public infrastructure traversing sites within Fishermans Bend.

Additionally, the new proposed Capital City Zone Schedules stipulate that a planning permit must not be granted for buildings and works where provision for new designated streets, laneways or public open spaces has not been made.

It will be interesting to understand how privately owned land identified for public spaces and infrastructure will be secured and the process pursuant to which landowners will be appropriately compensated.

Transitional Provisions

Crucially, there do not appear to be any transitional provisions throughout the various schedules and overlays contained within the GC81. This could raise concerns for developers with planning permit applications on foot or who are thinking about amending existing planning permits.

The lack of transitional provisions is contrary to the fair and orderly planning principles enshrined in the Planning and Environment Act 1987.

Submissions and the process going forward

Public consultation on both the Framework Plan and GC81 is now open and submissions can be made here until 5pm on 15 December 2017.

Going forward, these documents will then be considered by an independent Panel. A Directions Hearing will be held on 20 December 2017 to resolve procedural issues and set timelines, and a Public Hearing is scheduled to begin in the week commencing 12 February 2018.

If your land is affected by the Framework and GC81, our team is extremely experienced in this area and would be pleased to help you navigate this process.

Contact Mills Oakley

For further information, please do not hesitate to contact:

david-passarella

David Passarella | Partner 
T: +61 3 8568 9527
E: dpassarella@millsoakley.com.au

Jenelle Cramer | Senior Associate 
T: +61 3 8568 9534
E: jcramer@millsoakley.com.au

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