Why begin with ResCode?

With 30% of all 40,000 2019-20 planning applications in Victoria involving a ResCode assessment, the provisions at Clauses 54, 55 and 58 are a good candidate for the introduction of the PAM model.

There is also a significant body of case law that involves ResCode and has elicited considerable conjecture and controversy. One of these notable decisions is that of Li Chak Lai v Whitehorse CC [2005] which essentially states that if ResCode standards are met, the associated objective is also met. This decision was later contradicted by subsequent VCAT decisions (e.g. in the case of Lamaro v Hume CC [2013]) and, to this day, there remains various views amongst decision-makers about the correct and proper application of ResCode.

A benefit of a ‘deemed to comply’ model using quantitative methods of assessment (such as numerical standards of ResCode) is that it provides more clarity about whether compliance with an objective is achieved. On the other hand, certain complex issues arise when considering a development proposal that invariably demands a level of discretion ‒ such as when considering neighbourhood character ‒ which requires a qualitative approach.

An overarching theme of the proposed PAM model as it applies to ResCode, is that it will follow the approach of Li Chak Lai v Whitehorse [2005] in clarifying that if a standard is met, the objective is therefore also met. This will create more consistency in decision-making and increase developer confidence that compliance with PAM performance measures (previously ResCode standards) will lead to a permit being issued.

PAM Structure and Operation

The PAM model consists of four elements:

1. Performance objectives: outlines acceptable design outcomes.
2. Performance measures: specifies quantitative/objective conditions; compliance will determine whether the performance objective is met.
3. Performance criteria: applies where a performance measure is not complied with or cannot be specified. Consequently, qualitative standards apply to determine whether the objective is met.
4. Information required: includes specific info needed to inform a decision on whether an objective is achieved.

It is important to note that:

• The PAM model would be inserted into the current ResCode provisions to replace its structure.
• ResCode provisions will retain current numbers/order and PAM will be added as an operational provision at Clause 71, similar to the VicSmart system.

Neighbourhood Character

While local Neighbourhood Character study documents exist largely outside of planning schemes, the PAM model allows policy to be incorporated more clearly and enable Councils to specify more precise measures for Neighbourhood Character policy (currently at Standards A1 and B1 of ResCode) and Detailed Design (A19 and B31).

Neighbourhood Character policy under the PAM structure can also be incorporated into schedules of residential zones. Neighbourhood Character Study documents will continue to exist but the PAM system will encourage Councils to include key policy under schedules to a zone which will carry more statutory weight.

Broader Applications

While the PAM system proposal will begin by restructuring ResCode provisions, it can be applied to other areas of the planning scheme. For instance, the Design and Development Overlay (DDO) which varies significantly across different Local Government Areas (LGAs), both in terms of content and structure, can be simplified and more consistently operated under the new PAM structure.

By standardising more provisions of the planning scheme and favouring more quantitative methods of assessment, the PAM model seeks to prepare us for a more digitised future where planning policy can be readily and seamlessly applied to digital platforms. This digital approach will create a more accessible and consistent assessment process for developers, permit applicants, decision-makers and members of the community.

Have your say here.