Mornington Peninsula Housing and Settlement Strategy

The Mornington Peninsula Housing and Settlement Strategy, was adopted by Council in December 2017. It aims to address the future housing and population growth over the coming years to protect the unique character of the Mornington Peninsula. In early 2018, the Council sort authorisation from the Minister to commence exhibition and this is still yet to begin. The MPHSS seeks to limit development densities by restricting unit developments / subdivisions on lots of a minimum size.

In this context, a minimum site or lot area of 450 m² for new dwellings (requiring an existing lot area of at least 900 m2 for any further development) has been applied as a “base case” to areas considered to be reasonable candidates for a future Neighbourhood Residential Zone, with some additional density (a minimum site or lot area of 300 m² per dwelling) closer to major activity centres and a lower density (a minimum site or lot area of 1,000 m²) on the edge of larger townships. The MPHSS has been used by Council to discourage the development of sites which do not fit this criteria, however, at this stage, as confirmed by dozens of recent VCAT decisions (a few listed below), this is only at a very early stage of development and yet to be refined following the review process.

VCAT has accordingly determined that until such time as the Housing Strategy is subject to the planning amendment process or alternatively is introduced into the Planning Scheme, it can only be given limited weight. As recently as 5th April 2019, the VCAT Member stated in his decision (Koletas v Mornington Peninsula SC – VCAT 498) “I endorse other divisions of the Tribunal’s view that little weight should be given to Amendment C219 (MPHSS). It cannot be considered as seriously entertained.” Below is a list of VCAT decisions where the Member specifically makes reference to the Mornington Peninsula Housing and Settlement Strategy and the little weight this document should have in the decision making process.

Staffy Pty Ltd v Mornington Peninsula SC [2018] VCAT 887 (8 June 2018)
Amendment C219 is not therefore a seriously entertained planning policy and I have accorded it no significant weight. The Housing Strategy is a document that has been adopted by the Council and it is therefore relevant for me to consider it. It is however a document that sits outside the planning scheme and because aspects of it conflict with the provisions of the planning scheme, the weight that I accord to that document is diminished, particularly in circumstances where attempts to implement its recommendations into the planning have been unsuccessful.

Azzi v Mornington Peninsula SC [2019] VCAT 273 (26 February 2019)
Until such time as the Housing Strategy is subject to the planning amendment process or alternatively is introduced into the planning scheme, I can only give it limited weight.
Having regard to the above, and giving greater weight to the planning scheme, I conclude that the proposal is generally consistent with policy in that it seeks additional housing of a moderate nature, that is two dwellings, within an established town and urban area, with reasonable access to services and recreation facilities.

Le v Mornington Peninsula SC [2019] VCAT 335 (8 March 2019)
Adopted policy is a relevant consideration.[8] However, the weight I place on the HSS and the associated Amendment C219 is limited. The amendment has not been authorised for exhibition, it has not been the subject of public exhibition, submissions on the amendment have not been assessed by an independent panel and the Minister has not granted approval. This creates circumstances where the future of the amendment is unknown and reliance on proposed provisions, in preference to the current Planning Scheme, would be inappropriate.

Conto v Mornington Peninsula SC [2019] VCAT 532 (12 April 2019)
Consistent with numerous decisions of the Tribunal, including mine, this amendment is at a very early stage of the process, since it has yet to be authorised. I have commented on the issue previously and elsewhere, that it should be given consideration pursuant to section 60(1A)(g) of the Planning and Environment Act 1987, but not as a determining factor, as it cannot prevail over current zoning and policies in the planning scheme. I also commented that the Housing and Settlement Strategy reflects council’s current thinking of how residential development should proceed in the municipality. The amendment is subject to changes during the amendment process, depending on submissions, a likely panel hearing and final decision. For this matter, the amendment can only be given limited weight.

Glencoe Investments Pty Ltd v Mornington Peninsula SC (Corrected) [2019] VCAT 369 (3 April 2019)
With regards to the Mornington Peninsula Housing and Settlement Strategy 2017 – Amendment C219 that seeks to introduce a 450 m² minimum lot size per dwelling in the municipality, I will give little weight to this amendment in relation to this application because although adopted by Council in December 2017, Ministerial authorisation has not been granted as yet. This has been a consistent response by the Tribunal and I was directed to a number of cases of recent date by the permit applicant to reinforce this position.

Koletas v Mornington Peninsula SC [2019] VCAT 498 (5 April 2019)
I endorse other divisions of the Tribunal’s view that little weight should be given to Amendment C219 . It cannot be considered as seriously entertained.

Mahmoud v Mornington Peninsula SC [2018] VCAT 1518 (5 October 2018)
I cannot conclude that Amendment C219 which seeks to implement the HSS is a seriously entertained planning document. It has not been authorised for exhibition, there has been no public exhibition and no independent assessment of its provisions.

Jafar v Mornington Peninsula SC [2019] VCAT 180 (11 February 2019)
I endorse the Tribunal’s comment[6] that little weight should be given to Amendment C219 . This amendment has yet to start off the block, as it has not yet been authorised by the Minister. It cannot be considered to be seriously entertained.

The Housing Distribution Maps from the Council website show the proposed Neighbourhood Residential Zones & Schedules which regulate this proposed change. NRZ1 – 1 dwelling for every 300m² of site area & NRZ2 – 1 dwelling for every 450m² of site area.

If you are considering a subdivision or multi-residential development on the Mornington Peninsula, then I suggest you obtain expert advice early, consider all the options you have available and assess the likelihood of obtaining either Council support or the likelihood of ending up at VCAT (a drawn out & costly process). We have extensive experience in liaising with Planning professionals & Council to achieve a high success rate in obtaining permits.

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