This is a substantial General Residential Zone 1 (GRZ1) lot in Bairnsdale, and the customer has indicated they want to develop an apartment building or mixed-use development with apartments — a Clause 58 proposal. Before working through the Clause 58 framework, there are several threshold issues that will shape the entire project. Let me take them in order of materiality.
MOST MATERIAL FINDING — Clause 58 applicability and the GRZ1 context
Clause 58 applies to 'apartment developments' in Victoria — broadly, residential buildings of five or more storeys, or in some circumstances four or more storeys where the development is not assessed under Clause 54 or 55. In the GRZ1 (General Residential Zone), the zone purpose is to 'encourage development that respects the neighbourhood character of the area' and to provide for 'a range of housing types.' GRZ is the standard residential growth zone, but it is not a Commercial, Mixed Use or Residential Growth Zone (RGZ) — the zones most commonly associated with apartment towers.
The critical question for this property is: does the GRZ1 permit a Clause 58 apartment development at all, and what height does the zone schedule allow? Under Clause 32.08 (GRZ), a permit is required to construct two or more dwellings on a lot (Cl 32.08-7). A permit is also required for any building or works associated with a residential building. The GRZ does not have an outright prohibition on apartment buildings, but the zone's default building height is set by the zone schedule — and the East Gippsland GRZ1 schedule text has not been loaded here, so I cannot quote a specific maximum height. The default maximum height under GRZ (where no schedule specifies) is 11 m / 3 storeys, which is marginal for a conventional apartment building. A Schedule 1 variation may raise or lower this. If the intended apartment building is genuinely 5+ storeys, the zone height controls would almost certainly be exceeded, and the Heritage Overlay (addressed below) would be a further critical constraint. A lower-scale apartment building of 2–3 storeys assessed under Clause 55 (two or more dwellings) is a more realistic starting point for GRZ1 in a regional town like Bairnsdale — Clause 58 is typically applied in metropolitan activity centres, mixed-use and commercial zones. However, Clause 58 can technically be triggered in GRZ if the building meets the definition, so I will address the full framework.
Heritage Overlay HO7 — the dominant constraint on this lot
HO7 (Heritage Overlay, Schedule 7) covers 97% of this lot — effectively the whole property. This is the single most significant planning control. Under Clause 43.01-1, a permit is required to:
- Demolish or remove a building
- Construct a building or carry out works (including an apartment building and all associated site works)
- Externally alter a building by structural work, rendering, sandblasting or in any other way
- Subdivide land
- Construct or display a sign
The character of heritage protection in Bairnsdale and the specific significance of HO7 is critical. HO schedules in East Gippsland typically apply to individual heritage places or heritage precincts. The schedule will specify whether the overlay applies to: a single building or structure on the site, the whole property as a precinct, the streetscape context, or contributory/non-contributory elements. A large-scale apartment building on a heritage-listed lot is one of the most contested and difficult permit types to achieve in Victoria. The Responsible Authority and Heritage Victoria (if the place is on the Victorian Heritage Register) will require a Heritage Impact Statement (HIS) prepared by a heritage architect or heritage consultant. The HIS must address: the heritage significance of the place, the impact of demolition or modification of existing heritage fabric, whether the proposed new building is sympathetic in scale, form, massing, materials and setback, and whether the heritage significance is preserved or enhanced.
For a multi-storey apartment building on a heritage-listed lot, the core design tension is that apartment developments typically require: large floor plates, underground car parking with ramps, significant cut-and-fill earthworks, large building footprints, and building heights that are often inconsistent with the heritage streetscape. These will all need to be carefully managed. A heritage architect should be engaged at the concept design stage — before any planning application is prepared — to assess feasibility and guide a design that the Heritage Overlay will accommodate.
If the site contains a heritage building and demolition is required for the apartment development, a demolition permit under Cl 43.01-1 is required, and demolition of a contributory heritage building is rarely supported. If the intent is to retain the heritage building and construct apartments to the rear or alongside it, this is a more viable (but still complex) pathway.
Land Subject to Inundation Overlay (LSIO) — adjacent land, not this lot
The LSIO maps to adjacent land only (approximately 2% of lot contact) and is classified as an adjacent overlay, not a direct overlay on this lot. Per the overlay classification rules, this does NOT apply to this development as a controlling overlay. However, the proximity of inundation-affected land is worth noting: if any part of the proposed development is near the LSIO boundary, a hydraulic assessment may be required to demonstrate no adverse impact on flood flows. This should be confirmed against the PPR mapping. Melbourne Water (or the relevant regional catchment authority — in this case East Gippsland Water or the Gippsland CMA) may be a referral authority depending on drainage arrangements.
Erosion Management Overlay (EMO) — adjacent land, not this lot
The EMO similarly maps to adjacent land at 0% lot coverage — it does not directly apply to this lot as a controlling overlay. No EMO permit trigger applies to this development based on current mapping. Mention only for completeness: if earthworks for basement car parking are proposed, confirm the site's geology with a geotechnical report as standard practice for any significant excavation.
Bushfire Prone Area — BAL assessment required
This lot is in a Bushfire Prone Area under the Building Regulations 2018. For any new building, a Bushfire Attack Level (BAL) assessment is required by a suitably qualified assessor. The BAL rating will determine the construction standard required under Australian Standard AS 3959 (Construction of Buildings in Bushfire-Prone Areas). For a multi-storey apartment building, higher BAL ratings (BAL-29, BAL-40, or BAL-FZ) significantly increase construction costs and may affect facade materials, window systems, eaves and balconies. The Bushfire Management Overlay (BMO) is not shown on this lot — the Bushfire Prone Area designation under the Building Regulations is a separate, building-permit-level requirement, not a planning permit trigger in the absence of a BMO. Nonetheless, the BAL assessment should be commissioned early as it will influence facade design and costs.
Clause 58 standards — key requirements if an apartment development proceeds
If the development meets the definition of an apartment development and Clause 58 is the applicable assessment framework, the following standards are the most material for feasibility planning on this site:
- D1 (Urban Context, Cl 58.02-1): The design must respond to the existing urban context of Bairnsdale. This is a large lot in what is likely an established residential or heritage streetscape context. A heritage architect's urban context analysis will be essential.
- D3 (Dwelling Diversity, Cl 58.02-3): For developments of 10 or more dwellings, a range of dwelling sizes and types (1-bed, 2-bed, 3-bed) is expected.
- D7 (Communal Open Space, Cl 58.03-2): For 13+ dwellings: minimum 30 m² base + 2.5 m² per dwelling (capped at an additional 220 m²), maximum total 250 m². A lot of this size is generous — communal open space provision should not be a constraint.
- D10 (Landscaping, Cl 58.03-5): Deep soil areas for canopy trees are required. Given the large lot, this is achievable but must be planned around basement car parking footprints.
- D14 (Building Setback, Cl 58.04-1): Setbacks must respond to the DDO / zone requirements and the existing heritage streetscape. Heritage interface setbacks are particularly sensitive.
- D20 (Private Open Space, Cl 58.05-3): Balconies must meet minimum sizes: 8 m² (1-bed, 2-bed) or 12 m² (3-bed+) with minimum dimensions of 1.8 m–2.4 m depending on bedroom count. Ground-floor dwellings need 25 m² at a 3 m minimum dimension.
- D26 (Functional Layout, Cl 58.07-1): Minimum apartment sizes apply: studio 35 m², 1-bed 50 m², 2-bed 65 m², 3-bed 90 m². Individual bedroom minimums also apply: main bedroom 10 m² at 3 m dimension, other bedrooms 9 m² at 3 m.
- D29 (Natural Ventilation, Cl 58.07-4): At least 40% of apartments must achieve cross-ventilation (openable windows on two different orientations, maximum 18 m breeze path). Building layout will need to be designed around this.
For multi-dwelling developments in GRZ, the mandatory garden area requirement under Clause 32.08-4 applies regardless of the Clause 55 or 58 assessment. A permit CANNOT vary the garden area requirement. For a lot of this size — well above 650 m² — the mandatory garden area is 35% of the lot area. This is a substantial mandatory open-space reservation that will directly constrain the buildable footprint. A basement car park extending under the building can help preserve above-ground garden area, but the gardenarea calculation excludes areas over basement structures. This is frequently the binding constraint on multi-dwelling yield on large lots and must be addressed at the concept design stage.
Clause 52.06 Car Parking
A permit may be required under Clause 52.06 if the parking provision does not meet the applicable rate. For dwellings, the resident parking rate and visitor parking rate under Table 1 of Clause 52.06 apply based on the lot's Car Parking Requirement Map category. Visitor parking is commonly required at 1 space per 5 dwellings at Category 1 — if the proposal provides fewer, a Clause 52.06-3 reduction permit trigger arises. The GRZ1 context in Bairnsdale (a regional town with limited public transport) may attract higher parking expectations from council than a metropolitan site.
Clause 52.34 Bicycle Parking
Clause 52.34 requires bicycle parking for apartment developments of 4 or more storeys. For a Clause 58 building, resident and visitor bicycle spaces are required. For a lower-rise scheme (under 4 storeys) assessed under Clause 55, Clause 52.34 does not engage on the dwelling use.
Aboriginal Cultural Heritage Sensitivity
This lot is in a mapped area of Aboriginal Cultural Heritage Sensitivity under the Aboriginal Heritage Act 2006. A Cultural Heritage Management Plan (CHMP) may be required before the planning permit application is assessed, depending on the scope of earthworks. Significant excavation for basement car parking is a 'high impact activity' that commonly triggers CHMP requirements. This process takes 3–6 months and requires engagement with the Registered Aboriginal Party for the area (likely the Gunaikurnai Land and Waters Aboriginal Corporation for East Gippsland).
Title search — essential before committing to design
This is a large lot with a Heritage Overlay. Before committing to design or application preparation, a title search is essential to confirm whether there are any registered covenants, Section 173 agreements or easements that restrict development, subdivision or use. Heritage precinct properties often have Section 173 agreements registered from prior permits that may constrain what can be built. A title search costs approximately $30 and is the cheapest way to identify deal-breaking restrictions.
Summary
A Clause 58 apartment development on this site is theoretically possible but faces a demanding set of overlapping constraints: the Heritage Overlay HO7 covering virtually the entire lot is the primary gateway (a Heritage Impact Statement and sympathetic design are mandatory), the GRZ1 zone likely limits height to 3 storeys (insufficient for a conventional Clause 58 building unless the zone schedule provides more), and the mandatory 35% garden area reservation will consume a substantial share of this already constrained lot. A heritage architect should be the first professional engaged — before an architect or town planner — to determine what the HO7 schedule will and will not accommodate. The bushfire BAL assessment and CHMP process should run concurrently with early design work.