Planning and building regulations – BuildAdvisor

Are you allowed to build three storeys, add a new driveway, remove the council tree, cut down your old oak tree, or paint your heritage cottage a different colour?  It’s a big maybe.  One of the mistakes people make when building or renovating is assuming they can do whatever they want on their property.

Can I build what I want?

Unfortunately, you can’t always build what you want.  There are regulations that govern what you can and can’t build and these regulations are varied based on your council district and can be quite complicated. Usually, your architect or building designer will help guide you.  You could also discover some of the regulations for yourself.  If you take a list to your local council, they should help you find the answers.  It might take you a day or perhaps weeks to uncover and understand all the regulations relevant to your project, whereas an architect or building designer will know most of the answers.

There are two sets of rules and regulations you’ll need to follow, planning regulations and building regulations.

What are planning regulations?

Planning covers how your land is used, and how construction on that land will affect the environment or the neighbourhood.  Planning covers zones (such as residential, commercial, industrial, and rural) and overlays (such as flood, bushfire, heritage, area of Indigenous significance, and high wind area).  Being in a zone or overlay will affect what you can and can’t build.  For example, you can’t build an industrial factory in a residential zone and you may not be able to demolish a house in a heritage overlay.

Planning regulations include:

• The State planning scheme:  Victorian Planning Provisions
• The Council planning scheme:  each council interprets the Victorian Planning Provisions and has their own version of a planning scheme.

What are building regulations?

National and State building regulations are a set of technical provisions for the design and construction of buildings, plumbing, and drainage systems.  They regulate safe building materials and practices.  Council Building Regulations are a series of guidelines and objectives that affect the parameters of your building and the external look.  For example, how high and close you can build to the neighbours, rules about overlooking and overshadowing, the setback from the street, and the external materials and colours you can use.

Building regulations include:

• National regulations:  The Building Act 1984 and the National Construction Code 2019
• State regulations:  The Victorian Building Act 1993 and Building Regulations 2018
• Council regulations:  Council Building Regulations are a series of guidelines and objectives.

The good and bad news

The good news:

• It is possible to apply for a dispensation from a particular council regulation (such as distance to the boundary) if you have a good reason.  For example, you could request to remove a heritage-listed house or wall if you can provide a report from an engineer about the danger of keeping the house or wall.  Or you could request to remove a significant tree if you can provide a report from an arborist about the danger of keeping the tree.  Having said that, be very careful when pursuing this route.  The cost of council applications and expert reports can quickly add up.  Also, if you don’t get the dispensation, you’ll have to change your design, so always balance the risks and rewards.
• If the council rejects your planning application, you can always appeal the decision and go to court.  In Victoria, the relevant court is the Victorian Civil Administrations Tribunal (VCAT).  Again, be careful because VCAT applications and legal representation can be expensive.  Also, it can take up to a year to get VCAT to hear your case.  If VCAT rejects your appeal, you will have to redesign at your own cost.

And the bad news:

• Council building regulations differ.  Each council has its own building regulations.  This means, if your house is in one council district, and the house across the road is in another council district, the building regulations might be different.
• Many of the State and council planning regulations are a set of guidelines (called standards) and objectives that are open to interpretation.  They are not a set of hard and fast rules.  For example, the council planning height guideline could be a maximum of eleven meters, while the objective is to ‘fit in with the neighbourhood character’.  If all the surrounding houses are single-storey four-meter terrace houses, you might not be allowed to build a three-storey eleven-meter dwelling as it will need to ‘fit in’.
• The State and council planning schemes are huge and incorporate over 9,000 planning amendments and practice notes (like ResCode).  The National, State, and council building regulations incorporate all the building amendments.  Planning and building is definitely not a straightforward matter!

Steps you can take yourself

Before you visit an architect or building designer these are some steps you could take yourself to discover planning/building related information:

Get a copy of your land title

Check for easements and covenants.  If you want to build over an easement, you’ll need to apply for permission from the owner of the underground infrastructure provider.  Covenants restrict how the property is used and sometimes restrict the building materials you can use, for example a brick house only or tiled roof only.  And check for caveats. Caveats affect the transfer of ownership.
How do I get a copy of my land title?  In Victoria, you can order a copy online https://www.landata.vic.gov.au/

Get a land re-establishment report

If you live in the inner city and you intend to build on the boundary, you need to know how much land you have and the exact location of the boundary.  You need to check that what you think you own is actually your land.  You’d be surprised how fences, boundaries, driveways, and footpaths can mysteriously move over the years.
How do I get a land re-establishment report?  You need to hire a land surveyor to complete this report.

Check the council policy on trees

Do you need to remove a council tree, a significant tree, or a protected tree?  You might need a council permit to do so.
How do I get a council permit for tree removal?  Ring your local council, or search online for your council’s tree management policy.

Check your council planning register

Got a 3-storey development going up beside your property?  You might want to rethink your window placements.  Check your council planning register for pending and approved plans near your address.
How do I do check my council planning register?  Ring your local council or search online as most councils have an online planning register.

Check the essential services

If you have a rural property, you need to know if your property is already connected to electricity, natural gas, telephone, broadband, water, and sewage or whether you’ll have to pay to get it connected.
How do I check for essential services?  Get a free report (map) from Dial before you Dig that shows all the services to your property.  Or you could contact each of your local authorities (such as your local electricity, gas, telecommunications, and water authority) and they will point you in the right direction.

Disclaimer:  The information in this article is general advice only, and should be used as a general guide only, and not relied on for decision making purposes.  Every building and renovation project is different, so before acting on the information in this article you should consider its appropriateness to your specific project.  For guidance around your specific building or renovation project, seek assistance from a building consultant such as a qualified architect or building designer.