The relevant passage of Northcote Devco Pty Ltd v Darebin CC [2022] VCAT 515 read:
As was conceded by the Council during the course of the hearing, the Applicant’s proposed provision of social and affordable housing is a voluntary offer, in that it cannot be required or varied by a decision maker under the Darebin Planning Scheme. The Applicant offers to provide 8 dwellings as social housing to be managed by a registered housing provider, and a further 52 dwellings as rent reduced affordable housing managed by a registered Housing Association. The Council is critical that both the social and rent reduced affordable housing are to be provided over only a ten year period. In the context of a planning framework which cannot require any such provision of social or rent reduced affordable housing, we consider that the Applicant’s offer is a generous one. We also note that in our experience, the organisations that manage such housing also often provide other services that attempt to assist the occupants to obtain secure employment, become self-sufficient and be able to enter the private rental market. As such, a ten year period of operation would potentially allow multiple occupants to move through each of the dwellings, and break the cycle of homelessness. On this basis, we do not consider that the ten year window in which the social and rent reduced affordable housing is to be provided, as a reason to discount the value of the Applicant’s offer.
Of interest also were:
- Carney v Stonnington CC [2022] VCAT 574, which in part concerned a question of whether a development had started within the required two year window. In determining that works under the permit had not commenced, the Tribunal stated “…describing works or development simply as having a sufficient ‘nexus’ with development approved under a permit, as has been the tendency in previous Tribunal decisions, tends to misdirect the proper enquiry to be made when considering whether the development approved under a permit has started.” The decision is worth reading for applicants and authorities alike.
- Barnes v Boroondara CC [2022] VCAT 551, which involved a proposal for retrospective approval of solar panels on a dwelling within a Heritage Overlay. A VicSmart application, the applicant in part highlighted the environmental benefits of solar panels. Council, however noted that the under Clause 59.07-2, environmental considerations were not legitimate considerations and therefore unable to be considered. The Tribunal agreed and affirmed Council’s decision requiring the solar panels to be removed on heritage grounds.
- Stonehenge Constructions Aust Pty Ltd v Greater Bendigo CC [2022] VCAT 584, was an interesting decision in that following a four day Hearing the Tribunal ‘discovered’ a covenant on Title which no party had apparently been aware of. The Tribunal stated “The fact that this matter has only arisen after the conclusion of the merits hearing, and as a result of the Tribunal’s discovery of the restriction (as opposed to it being brought the attention of the Tribunal by the parties before or during the hearing as it ought to have been), leads us to this undesirable position of having to dismiss the application for review. This is unfortunate when there was a reasonable prospect of a permit being granted (subject to runoff matters) on the merits.”
- Munro v Whitehorse CC [2022] VCAT 580, involved an application for two dwellings where the Tribunal questioned achievement of energy efficiency objectives at Clause 55.03-5 as while each family room had a northern aspect that was fully glazed, a roofed alfresco beyond would limit solar access. The Tribunal included a condition requiring the alfresco roofing to be deleted or otherwise redesigned to allow northern solar access.
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.
