Blog

August 26, 2020 Written by: Hew Gerrard, Senior Associate

What happens when council wants your development to be bigger?

Landowners will be familiar with councils wanting to reduce the size and scale or a development. But what happens when they refuse it because they think it’s not big enough?

John Glossop of Glossop Town Planning was called by Romy Davidov, Principal Lawyer of Best Hooper Lawyers as an expert town planning witness in the matter of R & D Finance Consultants Pty Ltd v Darebin CC [2020] VCAT 892.


Designed by well-known Melbourne architect Youseph Taouk of Taouk Architects, this matter involved a proposal for a four storey building fronting Plenty Road transitioning down to two levels at its rear where it abutted an existing single storey residential property.


Of note was the responsible authority’s opposition to the proposal on the not often seen grounds of ‘underdevelopment’. The responsible authority’s position in this regard was principally based on the part townhouse typology of the development and the 2-4 storey height proposed. The review site was located within an area where planning controls and policy sought development of up to six storeys in height and where ‘underdevelopment’ was specifically discouraged.


Following the logdement of amended plans (which added two apartments and made the commercial offer larger), the Tribunal determined that the proposal did not represent an underdevelopment of the land. In recommending the granting of a town planning permit for the development, the Tribunal indicated that John’s evidence was persuasive in helping form its opinion.


The Tribunal agreed that the proposal did represent a higher density outcome having regard to the approximately 500 square metre size of the land, that the six storey height limit was a maximum height limit with no minimum height limit prescribed, and the transition in heights along the site was appropriate to its context.


The Tribunal was further persuaded by John’s evidence that the dwelling typologies were supported by the planning policy framework and that not only was there no basis to require only apartments to be developed, but that the dwelling typology proposed would contribute to broader housing diversity.


The Tribunal further concurred with the findings of a separate Tribunal in 295507 Barkly St Pty Ltd v Maribyrnong CC [2020] which rejected another ‘underdevelopment’ argument advanced by a responsible authority and for which John also appeared in as the town planning expert for the permit applicant.


Other issues relating to street interfacing, orientation of dwellings and off-site amenity impacts were also explored, and we are pleased to say that the Tribunal also found in favour of the permit applicant in relation to each of these matters.


For further information please call Hew Gerrard (Senior Associate) or John Glossop (Director) on 9329 2288.