The City of Port Phillip has received Ministerial authorisation to commence formal exhibition of:
- Design Guidelines 1-7 Waterfront Place Port Melbourne.
- Amendment C104 to the Port Phillip Planning Scheme, which will give statutory effect to the draft Design Guidelines 1-7 Waterfront Place.
Amendment C104 proposes to rezone the land at 1-7 Waterfront Place to a mixed use zone, introduce a Design and Development Overlay including a mandatory height limit of 10 storeys and include the draft Design Guidelines 1-7 Waterfront Place as a reference document to the Port Phillip Planning Scheme.
These documents will be available on the Council website on 21 June 2013., and formal exhibition will commence on 4 July 2013.
Importance of Amendment C104
Whereas restrictive covenants are protected to an extent under Section 60 of the Planning and Environment Act, an amendment of a planning scheme under section 6(2)(g) of the Planning and Environment Act 1987 does not require any steps to be taken to protect the interests of the persons entitled to the benefit of the covenant.
From the Victorian Law Commission, “Easements and Covenants, Consultation Paper” (pages 128-129)
“Restrictive covenants and easements can be varied or removed by the making or amendment of a planning scheme under section 6(2)(g) of the Planning and Environment Act. There are some restrictions on the scope of the power to regulate easements and covenants by a planning scheme.
A planning scheme amendment can be requested by anybody, but must be prepared by a planning authority (usually a council) with the authorisation of the Minister for Planning. The planning authority must give notice to owners and occupiers of land that may be affected, and consider all submissions. If the planning authority does not accommodate a submission requesting a change, it must refer it to a planning panel. The panel must consider all submissions referred to it and give a hearing to the persons who made the submissions. The panel must report its findings to the planning authority and may make recommendations. The planning authority must consider the panel’s report in deciding whether to adopt or change the amendment. The amendment comes into operation when the notice of approval is published.
If a planning scheme or amendment authorises or regulates the removal or variation of an easement or restriction, the owner of the servient or burdened land must prepare a plan, have it certified by the council, and lodge it for registration by the Registrar. The consent of the dominant or benefited owner is not required. When the plan is registered, the easement or covenant is removed or varied as specified in the plan.
The legislation specifies no criteria for a planning authority to apply in deciding whether to adopt an amendment that authorises the removal or variation of easements or covenants, other than broad planning policies. In some cases planning panels have identified special considerations relevant to the removal or variation of covenants. For example, in one report a planning panel took into account the following considerations:
- whether the proposed amendments would further the objectives of planning in Victoria;
- the interests of affected parties, including the persons who have the benefit of the easement or restrictive covenant;
- whether the removal or variation of an easement or restrictive covenant would enable a use or development that complies with the planning scheme; and
- whether the amendment will provide a net community benefit and promote sustainable development.
Although a planning scheme amendment can authorise the removal or variation of easements and covenants on specific lots, amendments usually affect a larger area and require consideration of many interests and policy considerations. Amendment of planning schemes is a time-consuming process, which requires the support of a planning authority and ministerial approval. It is not a method which is generally suitable for removing covenants on individual lots at the request of the owner.”
Update: 28 June 2013
Councillor Bernadene Voss followed up this issue with Council officers and passed on the following response:
“6(2)(g) allows a planning scheme (through an amendment) to direct the
creation, removal or modification to a covenant.
However, Council has chosen not use this this provision and the amendment
about to be exhibited will not impact on the covenant.“