April VCAT Update

Forty-nine decisions in the Planning and Environment List at VCAT in April including the first appearances for the year for Benalla RCC, Hindmarsh SC and Alpine SC.

The Hindmarsh SC decision (Shearwood v Hindmarsh SC [2024] VCAT 345) was of interest in that the Council sought to argue that the codification of some ResCode standards didn’t automatically mean the objective was met based on previous Tribunal determinations. The Tribunal did not support this position stating:

41.       Council accepted that the amended proposal would comply with Standard B22 of Rescode and the objective in Clause 55.04-6. However, it considered that the Tribunal still retains a residual discretion to consider the changes unacceptable. It relied on case authority including Lamaro v Hume CC.

42.       I prefer the reasoning of the Tribunal in D’Andrea v Boroondara CC over others applying VC243 provisions, to the effect that the codification of nominated standards removes the discretion associated with a qualitative assessment – meeting the standard is deemed to comply with the relevant objective and the decision guidelines do not come into play.

Sticking with ‘codification’, in Miller v Port Phillip CC [2024 VCAT 296 the Tribunal commented on several recent decisions on this subject in relation to a rear boundary wall. The Tribunal stated:

10.       As concluded in D’Andrea v Boroondara CC and Forecho Brighton Pty Ltd v Bayside CC, if the objective of the standard is met, the conclusion drawn in this case is that the rear wall on the boundary respects the existing neighbourhood character and the Tribunal does not have any ability to require a different height.

11.       The ground raised in dot point one which refers to a previous decision in relation to the subject land is not relevant and cannot be given any weight. This is because the Tribunal member in the previous decision was able to consider the decision guidelines under Standard A11. As a result of Amendment VC243 the Tribunal is no longer able to consider the decision guidelines if there is deemed compliance with Standard A11. Whilst the Tribunal in the previous decision acknowledged the rear wall height complied with Standard A11, considering the decision guidelines the Tribunal determined to reduce the height of the rear wall. The Tribunal in this instance does not have the ability to reduce the height.

12.       As the height and length of the wall on the rear boundary complies with Standard A11 then it is deemed to meet the objectives. Dot point 3 raises neighbourhood character which is referred to in the objective which is deemed to be met. No further consideration can be given as the proposal is deemed to comply with the objective namely ‘respect the existing or preferred neighbourhood character’.

13.       As stated in Costa v Banyule CC if a standard is met and there is deemed compliance with the objective of the standard this may not necessarily result in a consideration of neighbourhood character issues that may arise under uncodified provisions. In Costa the Tribunal considered that general consideration of neighbourhood character objectives referred to in clause 55.02-1 could be considered by the Tribunal as these were not codified.

14.       In the present matter the grounds relied upon by the applicants for review relate specifically to the rear boundary wall and the objective to Standard A11 refers specifically to respecting the existing neighbourhood character. As such there is no ability to further consider neighbourhood character under general provisions when it is considered under the standard that it meets the objectives in relation to neighbourhood character and there is no discretion given to the decision maker be it the responsible authority or the Tribunal.

15.       The issue raised in dot point 4 refers specifically to the ‘proposed rear boundary wall’ as indicated above, once the standard is met in relation to the rear boundary wall, there is no ability for the Tribunal to look beyond in relation to general planning outcomes.

The application of Clause 53.18 and when it does and does not apply seems to be an ongoing issue with various approaches being taken particularly in relation to residential applications. In Dickinson v Warrnambool CC [2024] VCAT 315 a permit was sought for the construction of two dwellings and corresponding two lot subdivision in the GRZ. The Tribunal disagreed with the Council that Clause 53.18 did not apply to such an application stating:

40.       The application was not accompanied by any material that demonstrates compliance with clause 53.18 – Stormwater Management for Urban Development. The Council advised that the application was exempt from the provisions, and a condition was imposed on the NOD that will address appropriate stormwater and drainage matters.

41.       Clause 53.18 requires an application such as this to be accompanied by appropriate material to demonstrate that there is sufficient room to accommodate important stormwater and drainage infrastructure on smaller sites.

42.       In this instance I will issue a permit with stormwater and drainage conditions but encourage the council to seek this material as a part of the application, as envisaged by clause 53.18.

Long Island Residents Group Inc. & Frankston Beach Association Inc. v Frankston CC [2024] VCAT 359 and Brougham Street Cohousing Pty Ltd v Nillumbik SC [2024] VCAT 360 both received some media attention with the Frankston matter involving the ‘Great Wall of Frankston’ which was affected by the Minister for Plannings intervention to impose what turned out to be a temporary mandatory 3 storey height limit before becoming a preferred 12 storey height limit. Council supported this development and VCAT agreed approving the project.

The Nillumbik matter was more unusual in that it involved 15 parties pooling their resources to purchase and develop a property for individual dwellings with a large degree of communal facilities. The Tribunal reacted very positively towards the proposal stating:

1.         This case provides an exemplar of an innovative approach to dealing with the challenge of providing more diverse housing opportunities to meet the needs of all Victorians.

2.         In 2021 a group of people formed a housing co-operative and decided the best way to tackle housing supply and affordability was to purchase a site and develop a series of dwellings around a plethora of communal facilities. In short, this group of people decided to take action to solve their own housing affordability issues.

3.         This was by no means a half-baked idea. Instead, the group engaged highly respected professionals in a range of fields, including architecture, to design a series of dwellings that responded to the site’s constraints in an informed and clever manner. In a system where a development only needs to meet an appropriate or reasonable standard in order to gain a planning permit, it is our view that this proposal goes well beyond such measures. We have found that the proposal is an excellent response to its context both in terms of policy and its physical context. In summary, this is because:

a.         The proposed development is contained on land within the Mixed Use Zone, which is intended to support higher residential densities, and in a location in which medium density housing is strongly encouraged by policy in the local planning scheme.

b.         It has managed its interfaces so that from the public realm there will be minimal change, and arguably the streetscape will be improved.

c.         It limits impacts upon its neighbours with effective site planning and additional landscaping.

d.         It incorporates innovative architecture with a contemporary interpretation of what could be described as the Eltham style.

e.         And perhaps most importantly, it involves a community focussed approach that minimises private space in favour of communal open space and facilities, and produces a housing opportunity that is presently not available in a location known for its sense of community and architectural innovation.

4.         The proposed addresses the call for diversity in housing supply that is one of the key planks of the Nillumbik Planning Scheme. In our view, this is a project that could and should have been supported and fast tracked because of the qualities we have outlined above. That instead this project was met with substantial delays and opposition, is part of a wider trend we are observing, that will fail to produce appropriate housing projects that can start to address the existing shortfall of housing supply presently being experienced across Metropolitan Melbourne.

Last month the decision of Nasralla v Hobsons Bay CC raised the question of the exercise of discretion in relation to the risk of new dwellings in proximity to major hazard facilities finding it did not exist. This month, in Smith V Hobsons Bay CC [2024] the Tribunal considered a development of two dwellings in such a context, risk being the only issue at play. This decision explored in detail while the Tribunal considered the application acceptable but did not mention the Nasralla decision (presumably as the Hearing was held before Nasralla was issued).

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.