Kooroora Developments Pty Ltd v Mornington Peninsula SC [2023] VCAT 1083, which was an unusual application involving the laying of turf on privately owned land zoned PCRZ. Apart from the unusual nature of the subject matter, the matter came before the Tribunal as a conditions appeal against the apparent contradiction in the permit allowing turf but including a condition requiring the turf to be replaced with native species. The Tribunal said:
25. I accept that the planning scheme has strong policy and direction for the protection and restoration of the coastal environment. The Mornington Peninsula Shire contains coastal areas iconic for their cultural, landscape, conservation, and recreational values.
26. Replanting of the subject area with coastal native vegetation of suitable EVCs may be a better outcome in terms of coastal habitat and conservation, but if this is what was sought it arguably should have been considered during the decision to issue the permit, and not left to be achieved via condition.
27. The permits are in my view internally contradictory. They give permission for the development of turf, but then require the replacement of the ‘turfed area’ in condition 1(a). If Council did not want to legitimise the turf that exists, they could have refused the permit applications and contested any review on the full weight of policy that was identified during this proceeding.
28. As it is, Council has approved ‘turf’. In the context of the application, being an extended garden area on a residential site, albeit in an unusual foreshore context, I consider the conceptualisation of turf as a manicured grassed area is the appropriate one. I do not think native grassland or shrubland sought to be imposed by Council via a permit condition could be conceived of as ‘turf’, regardless of the benefits of such native grassland. Overall, I do not think the approach sought in condition 1(a) is reasonable or sound planning.
29. Conversely, given that approval for turf was given, and turf exists, I think in the circumstances the existing turf (and irrigation) is an acceptable planning outcome.
Cysur Developments Pty Ltd v Merri-bek CC [2023] VCAT 1104, which received a write-up in The Age recently due to its use of ‘tiny’ apartments. What was equally notable was the proposal to provide no private open space i.e. balconies, for the proposed apartments with instead reliance on communal open space. The Tribunal said:
54. Usually I would be concerned as to whether this approach would achieve an outcome consistent with Clause 58 of the Merri-bek Planning Scheme. Clause 58 includes the following guidance.
Requirements
A development:
Must meet all of the objectives of this clause.
Should meet all of the standards of this clause.
55. The relevant objective relating to the provision of private open space is found at Clause 58.05-3, and sets out the following.
To provide adequate private open space for the reasonable recreation and service needs of residents.
56. It is an interesting conundrum as to whether the provision of no private open space can be said to meet the objective of providing adequate private open space. In responding to that conundrum, it might be interesting to compare this part of the Victorian Planning Provisions with Clause 52.06, and the scenario where zero car parking is at times provided in response to a purpose that seeks, “To ensure the provision of an appropriate number of car parking spaces…” Another interesting conundrum is whether the failure to meet an objective at Clause 58, means that I must refuse to grant a permit for the proposed development. To this end I note that while Clause 58 says that a development must meet all of the objectives, there is no words to the effect of, ‘A permit cannot be granted if the objectives are not met.’ I might observe that on one view, words to this effect are likely to be needed in order to make the objectives a mandatory requirement.
57. These conundrums are muddied in this proceeding as it involves an application to amend an existing permit, where the existing planning permit allows the construction of 16 apartments, all without any private open space. As such, the proposal that is before me is to extend the existing approved ‘style’ of residential development to a further 8 apartments on an adjoining property. In making a decision on the original planning permit application, the Council’s delegate wrote the following in their assessment as justification for the non-provision of private open space.
Communal open space is the sole open space for residents with no private balconies provided for any dwelling. A total common area of 85sqm is provided for residents in the form of 25.5sqm wintergarden, 14.5sqm communal kitchen, 31.5 sqm pergola area and 13.5sqm community laundry. The common areas cater for a variety of residents needs which in a sense is private given that only residents can access this space. Arguably these larger spaces are more useable than an 8sqm balcony would be to residents and provide a better amenity having integrated landscaping and furniture. The shared facilities encourage interaction between residents which is a key initiative of the development that adopts a new type of housing model aimed at a particular demographic. It is considered that the provision of open space would satisfy the objectives of Clause 58.
59. I have not been informed why this analysis would not also be relevant and applicable to the 8 additional apartments that comprise the proposed amendment to the existing permit…
Glossop Town Planning enjoyed another busy month appearing before the Tribunal either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). If Glossop Town Planning could potentially be of assistance with any VCAT related matters, please contact our office on 9329 2288 or via email at mail@glossopco.com.au.
