_A Developers right to ‘a fair go’

Tuesday saw an interesting development in the planning world, with the Minister for Planning introducing a new interim Design and Development Overlay (DDO) into the Yarra Planning Scheme without any opportunity for public comment.


We understand that in 2008, Yarra City Council (Council) commenced structure planning of an area of land in Fitzroy North however, Council never sought changes to the planning controls over the area as a result of this work.  In 2016 a planning permit application was submitted to the Council for a 16-storey apartment building at 26 to 56 Queens Parade, Fitzroy North.

The site in question at Queens Parade, Fitzroy North (photo source The Age)

The site in question at Queens Parade, Fitzroy North (photo source The Age)

At the time the application was submitted, the Yarra Planning Scheme contained no built form / height controls over the site.  The applicant subsequently requested a review by VCAT on the ground of Council failing to make a decision in the prescribed time, with a VCAT hearing date scheduled for 3 April 2017.  In the meantime and due largely to resident concerns, Council undertook a quick built form review for the site and requested that the Minister for Planning intervene to introduce more restrictive controls that would prohibit the application as proposed.  This ‘quickie’ amendment was not exhibited as would be the normal case with planning scheme amendments.  The Minister brought it in ‘overnight’.

New Controls 

The new Schedule 16 to the DDO (DDO16) imposes mandatory built form controls on the Queens Parade site that, in addition to various setback requirements, require a maximum building height of 31 metres (10 storeys).  In response to DDO16, the developer must redesign the proposed apartment building to comply with these new controls.  It should be noted that these new controls were introduced less than one week before the VCAT hearing on the proposal was scheduled to commence. This short timeframe in this situation raises questions as under Victorian law, the application is determined in accordance with the planning controls now in force.  The applicant must now amend the proposal to address the planning controls that are current at the date of the hearing / any determination.


The process of the built form review raises the following questions.

  • Was the built form review reasonable and transparent given it commenced after the application was submitted and almost exclusively targeted the site (with the exception of a limited number of adjoining and adjacent properties)? Note: built form reviews generally cover a broader precinct / area.
  • Should the DDO16 have included transitional provisions so the application could be considered against the planning controls that applied at the time of submission?
  • If a Council has not done its homework, should it be allowed a ‘quickie’ untested change in planning controls to stop a proposal it does not like?
  • Should the media and residential backlash play such a role in influencing planning controls independently of due process?
  • Should a Council be made liable for the cost incurred by the applicant if planning controls are to change post-lodgement of an application in such a manner?


Whilst Collie does not oppose the Minister for Planning intervening in situations where a significant negative planning outcome appears likely, we question whether in this particular situation it was warranted to not allow VCAT to ‘test’ independently such a proposal in these cases?  This is especially so given the timing of the intervention by the Minister so close to the VCAT hearing.  It should be noted that Collie has no involvement in this application and does not speculate as to whether it is an appropriate development, but questions whether this is a case of the goal posts having moved after the game has started?