Amendment GC172- policy neutral or material impact?

Edward Mahony
29 March 2021

Recently, the Minister introduced Planning Scheme Amendment GC172 into a number of planning schemes across the State. The reasons for the intervention, which was introduced pursuant to section 20(4) of the Planning and Environment Act 1987 (Vic) without any public consultation, was purportedly to correct building height inconsistencies which arose from the reformed residential zones introduced under Amendment VC110 in 2017.

At the time of the approval of VC110 in 2017, the Department highlighted its intention to rectify ‘within three years’, a number of instances where some municipal schedules to the General Residential Zone and Neighbourhood Residential Zone varied the maximum building height contemplated by the State wide zone control. This brings us to the current Amendment GC172.

The Minister states that Amendment GC172 is ‘policy neutral.’ However it is evident that this is not the case and rather, the Amendment has had a material impact on a number of our clients in a number of municipalities, including those that are well progressed in planning permit applications. The effect of GC172 is that the development outcomes progressed by our clients are now prohibited given that the building heights for their respective developments have been reduced through the introduction of GC172. 

We believe that there has been fundamental error made in gazetting GC172 and if this was a deliberate decision (i.e. if the intent of the Amendment was to reduce building heights across different municipalities), we believe this decision is unreasonable, unfair and, in making his decision, the Minister has denied natural justice to landowners affected by these changes. The absence of transitional provisions applying to applications lodged before the gazettal of GC172 only exacerbates the unreasonableness, unfairness and lack of natural justice that the gazettal of the amendment demonstrates. On behalf of a number of clients, we have filed proceedings at the Supreme Court challenging the validity of GC172 and will update this article as relevant developments occur.

Should you have any questions in respect of Amendment GC172 and the potential impacts to your application/permit, please do not hesitate to contact our office.