New Yarra River Protection Planning Controls

On 26 February 2017, the Victorian Government (Government) formally released the Yarra River Action Plan and the new Yarra River Protection Planning Controls (Yarra Controls) intended to protect the Yarra River from “inappropriate” development.  This follows a discussion paper, Protecting the Yarra River (Birrarung), which was released for public consultation on 1 July 2016.

Partner, Meg Lee, and lawyer, Linda Choi, provide an overview of the new framework.

Where do the new Yarra Controls apply?

The Yarra Controls will affect land within six local councils – Banyule, Boroondara, Manningham, Nillumbik, Stonnington and Yarra – and apply to the land within approximately 500 metres of the Yarra River between Punt Road, Richmond and the outer extent of the township of Warrandyte in the areas shown as red on the attached maps The extent of the area under the Yarra Controls was determined through a local level assessment of the landscape and environmental characteristics which the Government assessed as best reflected the area between the ‘Waterway Corridor’ and the ‘River Experience Corridor’ of the Yarra River.¹

Map of Lower Yarra River (Lower Yarra River – Summary Pamphlet, Department of Environment, Land, Water and Planning 2017)

Map of Middle Yarra River (Middle Yarra River – Summary Pamphlet, Department of Environment, Land, Water and Planning 2017)

How are the Yarra Controls being implemented?

The Yarra Controls are implemented under Amendment GC48 and follows the gazettal of VC121 which amended the State Planning Policy Framework by deleting clause 11.04.09 River Corridors and inserting clause 12 Rivers including the Yarra River Protection clause 12.05-2.

GC48 introduces new and/ or amends existing Design and Development Overlay (DDO) and new Significant Landscape Overlay (SLO) Schedules on an interim basis for four years within the planning schemes of the six councils.  It also amends the planning scheme maps of the six councils.

As part of the Yarra River Action Plan, the Government will also establish a ministerial advisory committee called the Birrarung Council.  This will be a new independent statutory body established under the Yarra River (Birrarung) Protection Bill and will consist of an independent chair, traditional owners and representatives from environmental, agricultural peak bodies, community and skill-based members.  It will provide independent advice on the protection and improvement of the Yarra River, its parklands and values and become “the voice of the Yarra River”.²  A detailed legislative framework for this is yet to be developed by the Government but this has been identified as a “short term” action that will occur by the end of 2018.³

What are the key elements of the Yarra Controls?

A new DDO Schedule 1 titled ‘Yarra River (Birrarung) Protection’ has been applied to specific areas of private land immediately adjacent to, or within close proximity of the Yarra River (these areas are identified on various planning scheme maps as DDO with a number).  It seeks to govern and guide three key parameters:

• landscape protection;
• siting and design;
• site coverage and permeability

Under the new DDO Schedule 1, a permit is required to construct a building including a fence within the prescribed setback in each table of the DDO Schedule and construct a swimming pool or tennis court associated with a dwelling.

The DDO Schedule 1 contains a mix of mandatory and discretionary requirements. Importantly, for a new building, there is:

• a prohibition on additional overshadowing of the banks and waters of the Yarra River measured on 22 June between 11am and 2pm; and
• a mandatory maximum building height (generally ranges between 7.5 – 11 metres for a relatively flat site) and setback which ranges between 25 – 150 meters depending on the location of the land.  These are specified in the tables contained in the DDO.

The mandatory requirements are similar for complete or partial replacement of an existing building in that it a permit cannot be granted to vary the following:

• exceed the maximum building height specified in each table in the DDO;
• reduce the existing setback of the building from the Yarra River and public open space; and
• increase the existing gross floor area of the existing building.

All applications within 100 metres of the banks of the Yarra River must be referred to Melbourne Water as the Recommending Referral Authority, meaning their views will be sought, but their comments or conditions do not have to be imposed by the Councils as would be the case if Melbourne Water were instead a Determining Referral Authority.  However, this is a new measure in addition to any referral requirements which may already exist on an allotment for flood control.  Under the proposed Yarra River (Birrarung) Protection Bill, Melbourne Water will also be designated as the “lead agency” to develop the initial Yarra Strategic Plan and coordinate its delivery and therefore is given a greater role in the protection of the Yarra River.

In addition to the DDO Schedule 1, a revised or new SLO schedule has been applied to an area identified within the “Landscape Setting Corridor” – all land irrespective of tenure (i.e. both public and private land) within approximately 100 to 400 metres from the centreline of the Yarra River on both sides.   The SLO provides uniform controls by replacing the previous planning controls (existing Yarra River specific Environmental Significance Overlay (ESO) and other SLOs) which varied from council to council.  These areas are identified on various planning scheme maps as SLO with a number and the extent varies depending on its location.

Under the new SLO, a permit is required for all buildings and works, to remove, destroy or lop any vegetation (above a prescribed size) specified in a schedule to the DDO, and to construct a fence within 30 metres of the banks of the Yarra River or where it abuts public land.  Some permit exemptions are provided.

The SLO must be read in conjunction with any DDO requirements affecting a land.

The requirements under the new SLO and DDO Schedules do not apply to development of land for which a building permit or a planning permit was issued before 24 February 2017.

Conclusion

Despite Amendment VC96⁴  (gazetted in 2012) which represented a significant, but only interim, step towards the protection of the Yarra River corridor, the use and development along the Yarra River has largely been subject to a patchwork of overlays and policies in each of the Council areas through which the Yarra River flows.  This approach, which included various height and setback limits with no maximum height limits in some councils, resulted in inconsistent decisions and variable amenity impacts on the Yarra depending upon the location.

The new planning rules help to provide a more consistent approach to the way the Yarra River banks are used and developed by setting clear height and setback limits for where a permit cannot be granted “under any circumstance”⁵  for all areas identified in the new DDO Schedule.

The new Yarra Controls along with the establishment of the Birrarung Council and the expanded role of Melbourne Water are therefore a welcome step towards for ensuring that one of Victoria’s most well-known and iconic waterways are protected for the present and future generations.

¹ Yarra River Protection Planning Controls Planning Advisory Note 65, Department of Environment, Land, Water & Planning 2017, p3.

 ²Yarra River Action Plan, Department of Environment, Land, Water & Planning 2017, p13.

 ³ Ibid.
⁴ Introduced in response to a VCAT hearing regarding a proposal for three dwelling fronting the Yarra River, see Watkins v Boroondara CC [2013] VCAT 824.