What changes can be made to a dwelling in a Heritage Overlay without a planning permit?

At some point in time you may find yourself owning a property that is affected by the Heritage Overlay or is about to become affected by the Heritage Overlay. The prospect of this may put forward the question ‘What changes can be made to a dwelling in a Heritage Overlay without a planning permit?’. Hint: Demolition is not one of those things!

Councils are responsible for the identification of properties with heritage value. This is done through heritage studies carried out by qualified heritage consultants. Places are assessed to determine whether they are significant and warrant State or local protection.

State protection is undertaken by including the site in the Victorian Heritage Register. Local protection is undertaken by the application of the Heritage Overlay. Sites may have individual significance or form part of a broader precinct. Within a precinct, sites may be identified as having contributory values or non-contributory values.

The value of the building will influence the extent by which modification or demolition may be undertaken. This information would be found in a relevant Council Heritage Study. Councils are responsible for issuing a planning permit for use and development of local heritage places under the Planning and Environment Act 1987.

How to establish if your property is affected by heritage controls

You can determine whether your property is affected by heritage controls by contacting our firm.

Alternatively, a planning property report can be obtained by using the DELWP service ‘searching for a planning report’ at https://www.planning.vic.gov.au/schemes-and-amendments/planning-report-search and a review of the relevant controls can be obtained from the relevant planning scheme https://www.planning.vic.gov.au/schemes-and-amendments/browse-planning-schemes.

So, what changes can be made to a dwelling in a Heritage Overlay?

The starting point to determine this, is to review the Schedule to the Heritage Overlay in the relevant Planning Scheme. The schedule allows for “yes/no” variations on:

  • External paint controls
  • Internal alteration controls
  • Tree controls
  • Outbuildings or fences not exempt under Clause 43.01-4
  • Included on the Victorian Heritage Register
  • Prohibited uses may be permitted
  • Aboriginal heritage place

It may also refer to an Incorporated Plan, which can provide specific exemptions.

Within the body of the Heritage Overlay provisions, at Clause 43.01, it lists matters which require a planning permit. It does not specifically list matters which do not require a planning permit. This information is to be extracted by reviewing Clause 62.02, Buildings and Works. It is a rather convoluted process, which is often the case with Planning Scheme Provisions, that’s why we recommend you seek our professional advice.

Relevantly, at Clause 62.02-1 (Buildings and works not requiring a permit) includes:

  • Gardening (except to remove, destroy or lop a tree which is addressed below).
  • A children’s cubby house.
  • External lighting normal to a dwelling.

Clause 62.02-2 (Buildings and works not requiring a permit unless specifically required by the planning scheme) lists matters which must be read in conjunction with the permit requirements at Clause 43.01-1. These are summarised as follows (this list is not exhaustive but extracts the works considered most common to a dwelling):

  • A fence, except if it is visible from a street (other than a lane) or public park.
  • The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased and the number of dwellings is not increased. This includes internally altering a building, unless the Internal alteration controls apply as a “yes” variation in the schedule to the Overlay, then a permit would be required.
  • Repairs and routine maintenance to an existing building or works, unless it results in external alterations to a building by structural work, rendering, sandblasting or in any other way. In other words, to carry out works, repairs and routine maintenance which do not change the appearance of a heritage place or which are undertaken to the same details, specifications and materials.
  • Externally paint a building, unless the External Paint controls apply as a “yes” variation to the Overlay, then a permit is required. This does not include externally painting and unpainted surface or if the painting constitutes an advertisement.
  • Domestic services normal to a dwelling, except if it is visible from a street (other than a lane) or public park.
  • A rainwater tank with a capacity of not more than 10,000 litres, except if it is visible from a street (other than a lane) or public park
  • A television antenna.
  • A domestic swimming pool or spa and associated mechanical and safety equipment if associated with one dwelling on a lot, except if it is visible from a street (other than a lane) or public park.
  • A deck to a dwelling with a finished floor level not more than 800 mm above ground level, except if it is visible from a street (other than a lane) or public park.
  • A domestic disabled access ramp.
  • A solar energy facility attached to a building that primarily services the land on which it is situated, except if it is visible from a street (other than a lane) or public park.
  • Buildings and works associated with cat cages and runs, bird cages, dog houses, and other domestic animal enclosures associated with the use of the land as a dwelling.
  • An electric vehicle charging station, except if it is visible from a street (other than a lane) or public park.
  • Remove, destroy or lop a tree, unless Tree Controls apply as a “yes” variation the schedule to this overlay specifies the heritage place as one where tree controls apply, then a permit is required. This does not apply:
    • To any action which is necessary to keep the whole or any part of a tree clear of an electric line provided the action is carried out in accordance with a code of practice prepared under Section 86 of the Electricity Safety Act 1998.
    • If the tree presents an immediate risk of personal injury or damage to property.

While the list of things that can be done without a permit seems lengthy, it is limited to very specific things and needs to be assessed on a case-by-case basis. We can assist you in determining whether your works needs a planning permit.

Contact us on 9329 2288 or via email at mail@glossopco.com.au to see how we can assist you!

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