January VCAT Post

The beginning of 2024 saw 48 reported decisions in the Planning and Environment List. This included the Red Dot decision of Eddy v Yarra CC (Red Dot) [2024] VCAT 2 which considered an objector appeal where an amendment to the planning scheme had been approved before the application for review was lodged and which meant planning permission was no longer required. The Tribunal held that the application for review was now misconceived and a ‘bundle of rights’ did not exist.

Other decisions of interest included:

8 Florence Pty Ltd v Merri-bek CC [2024] VCAT 5 which involved a s80 appeal against various conditions associated with a s72 amendment to a multi-storey building.

The original permit granted was for a 5 storey building and the permit applicant now sought to increase the height to up to seven storeys. As part of their application, the permit applicant proposed to provide 10% affordable/ social housing with an affordable housing report provided. The Council approved the amendments, but conditions required the deletion of one level, the provision of an updated affordable housing report, and the entering into of a s173 Agreement related to the affordable/ social housing component.

The permit applicants subsequently appealed the need to delete one level, provide affordable housing, and enter into a s173 Agreement. The Tribunal found:

33.       At the hearing, Mr Munt made verbal submissions that the affordable housing component of the development can no longer be provided due to the financial impost resulting from the delays in the planning approvals process (including the imposition by the Councillors of Condition 1(m), requiring the deletion of the upper level of the building), and that the proposed development is an acceptable planning outcome without the provision of the 10% affordable housing. These verbal submissions essentially reflect the application for review document lodged with the Tribunal which states that in regards to Condition 51, “The requirement to incorporate affordable housing under this condition is too onerous given the scale of the proposed development, and time and cost associated with the planning approvals process.” In regards to Condition 1(l) the application for review document states that, “The affordable housing report required by this condition is [un]necessary as deletion of the corresponding Condition 51 is also included as part of the Application for Review.”

34.       Clearly, the applicant understood the scale of the development when it chose to include the provision of 10% affordable housing as an explicit part of the application to amend the permit. Further, I consider that it is reasonable to assume that the applicant would have been aware that it is not uncommon for Councillors to make planning decisions which do not reflect the recommendations of the Council’s planning officer. I have also determined, on the planning merits, that it is appropriate to retain the upper level of the proposed development by deleting Condition 1(m).

35.       I do not think that the reasons given by the applicant provide adequate justification for essentially reneging on their commitment to provide 10% affordable housing. I am therefore not persuaded that it is appropriate to delete Conditions 1(l) or 51 of the amended permit. Both of these conditions will therefore be retained on the amended permit.

36.       However, I do agree with Mr Munt’s written submission that the commitment to provide the 10% affordable housing can be achieved without the need for a section 173 Agreement. I am satisfied that the Affordable Housing Report that will be endorsed under Condition 1 of the permit, and will then form part of the permit, is a sufficient mechanism to implement the 10% affordable housing commitment. It is therefore appropriate to delete Condition no. 52 of the permit.

Martinez v Nillumbik SC [2024] VCAT 40 was slightly unusual in that it involved the refusal of Council to endorse plans under the secondary consent provision of a permit for reasons including that the proposed changes were ‘of consequence to the purpose of the planning control under which the permit was granted’. In undertaking its assessment of the proposal and whether it was ‘of consequence’ the Tribunal stated:

29.       Council submits the above issues are material changes that are not of ‘no consequence’ in the context of the third criteria in Westpoint. It appears council has opted for a cautionary approach, submitting the more ‘formal’ process of amendment pursuant to section 72 is the preferred pathway for consideration of the proposed amendments. I have some sympathy for the council position given the number of proposed and retrospective amendments to the endorsed plans being sought by the applicant, however, whether the proposed changes are of sufficient consequence to warrant a section 72 amendment process depends in my view on the effect of the amendments relative to the approved development and in context with the Westpoint criteria.

30.       It is also paramount that my assessment pertains to the planning permissions. In this regard, the applicant points out that a permit is not required under the LDRZ…

31.       I concur with Lyle’s submission concerning the role of the building permit process in relation to clause 54 compliance. If I am to assess the effect of the proposed changes to the endorsed plans in relation to (for example) building form, I must do so in the context of respective planning overlay permissions.

In Tarneit Derrimut Rd Land Pty Ltd v Wyndham CC [2024] VAT 63 Council issued a permit for a childcare centre with a condition included requiring the submission of an acoustic report within one month of a written request from Council. The condition was imposed on the basis that the land abutted currently undeveloped land but was earmarked for ‘high density’ development. The permit applicant appealed the condition on the basis it was unreasonable, did not provide certainty, was not specific and therefore invalid. The Tribunal agreed indicating the condition was not reasonably capable of implementing relevant policy, was unnecessary, and entirely vague and uncertain.

Forecho Brighton Pty Ltd v Bayside CC [2024] VCAT 72 involved a declaration proceeding as to whether Standard B6 was varied by DDO11 to the Bayside Planning Scheme. DDO11 relevantly states “Buildings in a residential zone should be setback in accordance with the relevant clauses 54 and 55 Standards except that the second floor should be set back a minimum of 4 metres behind the front wall of the floor immediately below, unless the second floor is an attic…”. The Tribunal found:

37.       … Clause 2 of DDO11 specifies for the purposes of the schedule that the Ground floor is the first storey; first floor is the second storey; second floor is the third storey, and the third floor is the fourth storey and so on. Under DDO11 buildings within residential zones are required to be setback in accordance with the relevant clause 55 standards, including Standard B6, except the second floor/third storey should be setback a minimum of 4 metres behind the front wall of the floor immediately below. In my view, this is not a variation rather it is an additional discretionary requirement over and above the relevant clause 55 standard.

38.       Standard B6 does not distinguish the setback from the street of various floor levels as identified in DDO11. My reading of Standard B6 in the present case is that the front walls at all levels must be setback 9 metres or more from the street frontage to be deemed to comply. Provided therefore all three levels are setback 9 metres then there is deemed compliance with Standard B6 and there is no further consideration required by the Tribunal.

39.       The requirement under DDO11 that consideration is given to the second floor being setback a minimum of 4 metres behind the front wall of the floor below. This is discretionary. This would if complied with when read in conjunction with Standard B6 result in the third storey being setback more than the 9 metres as required under Standard B6.

40.       As the requirement under DDO11 is discretionary. If Standard B6 is met, then it is a matter for the Tribunal to determine whether the additional 4 metre minimum setback is required at the second floor/third storey level which would result in the Tribunal requiring a further setback.

42.       DDO11 requires compliance with clause 55 as a consequence Standard B6 must also be applied to the second floor or third storey. If Standard B 6 is met. The decision guidelines for that Standard do not apply to the application. Consequently, the Tribunal does not have any ability to require a greater front setback at the ground, first and second floor levels as relevant to Standard B6. If Standard B6 is not complied with at the second floor/third storey level, then the objectives and decision guidelines cannot be deemed to comply.

43.       DDO11 provides a discretion to consider whether ‘the second floor should be set back a minimum of 4 metres behind the front wall of the floor immediately below’. I read this provision in DDO11 as a design outcome rather than a neighbourhood character outcome in light of the decision guidelines at clause 6 in DDO11…

45.       Like the conclusion reached in D’Andrea if the objective of the standard is met the conclusion drawn is ‘that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site’. Therefore, the Tribunal does not have any ability to require a greater front setback in relation to Standard B6 taking into consideration any neighbourhood character provisions within clause 55, policies within the planning scheme and/or impact on adjacent heritage buildings pursuant to Standard B1 and B2. However, with regard to the second floor the Tribunal can consider in accordance with the decision guidelines in DDO11 any additional setback over and above compliance with Standard B6.

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.

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