VCAT Volume 10 No 3

1. Protecting overshadowing by both mandatory and discretionary controls

The site at 1-7 Waterfront Place in Port Melbourne has been subject to a number of proposals and hearings over the years, including a Court of Appeal challenge where the Minister for Planning call-in powers were challenged (see editorial comment VCAT Vol 7 No 2).

In Waterfront Place Pty Ltd v Port Phillip CC [2022] VCAT 1157, the site was again subject to a review in the Tribunal. The application was for a 10 storey mixed use building.

Council approved the application but required conditions for amended plans to reduce the overall height of the building, the podium height and the height of roof-top building services.

The site is in a Design and Development Overlay (DDO) with mandatory controls on height and overshadowing. This  overshadowing control requires no overshadowing beyond the kerb line at the equinox. The DDO also contains a discretionary control that minimises overshadowing at the solstice.

While the Council accepted that the proposed development meets the mandatory requirements of the DDO, including the mandatory overshadowing requirement, it submitted that the following discretionary controls were not met:

  • Development should minimise overshadowing beyond the southern kerb line of Waterfront Place between the hours of 9:00am and 3:00pm at the June solstice; and
  • Buildings should be configured and designed to minimise negative amenity impacts of shadows on the public realm and other publicly accessible areas.

Further, Council submitted that because both the mandatory and discretionary controls are to be applied in assessing the proposal, compliance with the mandatory control should not be considered as deemed to comply. It stated that the notation of ‘Maximum 35 metre/10 storey towers (subject to overshadowing controls) on Figure 1 in DDO23 results in the “ultimate height of the development is to be assessed not with an expectation of a development right or legitimate expectation up to the mandatory height, but rather an ultimate height (no greater than the mandatory height) to be informed having regard to the shadow impacts. Those shadow impacts on the public realm are not confined to an assessment of shadow at the equinox but specifically include consideration at the winter solstice.”

In rejecting Council’s submissions the Tribunal stated:

The balance between the preservation of solar access to the area beyond the southern kerb line of Waterfront Place has been struck in DDO23 by the imposition of a mandatory overshadowing control to be assessed at the September equinox on the one hand, and on the other hand the discretionary requirements applying to the same area at the June solstice and requiring built form to be configured and designed to minimise negative impacts of shadows on the public realm

In that context –

    1. it is clear that overshadowing of the public realm beyond the southern kerb line is anticipated by a development that complies with the mandatory design controls in DDO23. That is evident from the very existence of the discretionary overshadowing control and its direction that development should minimise shadowing beyond the southern kerb line during the June solstice;
    2. there is no mandatory overshadowing control that applies during any time period on the June solstice; and
    3. ‘minimise’ does not mean ‘avoid’ or ‘prohibit’ shadowing between all or any part of the hours of 9:00am to 3:00pm during the June solstice. There is simply nothing in DDO23 that supports such an approach to the meaning of ‘minimise’. 

In context, whether the permitted development ‘minimises overshadowing’ during the relevant period on the June solstice involves the making of a judgment based on consideration of all the attributes of the development and all of the design objectives and design requirements (both mandatory and discretionary) of DDO23.

After consideration of all of the design objectives and controls expressed in DDO23 as informed by the Design Guidelines, I find that the siting, massing and orientation of the two-tower form minimises the extent of shadowing beyond the southern kerb line of Waterfront Place between the hours of 9:00am and 3:00pm on the June solstice. Specifically, the staggering back of the storeys above the podium together with the massing of these storeys in two towers with acceptable separation minimises overshadowing on the public realm (at any time of the year). [120-123]

Having both a mandatory and discretionary control with different requirements to address the same matter is somewhat perplexing. However, it is evident that the Tribunal clearly turned its mind to both controls and was satisfied the proposal met the more stringent discretionary control because it minimised the extent of overshadowing to an acceptable degree.

There was some media coverage after the Tribunal’s decision with some locals disappointed with the Tribunal’s decision in relation to the overshadowing on the public realm. However, provided the permit is acted upon, it would seem the site will be finally developed.

See also:

  • Guide to Planning Appeals: Public open space > Impacts on public open space

2. Easement sought for economical and efficient subdivision or servicing of land rejected

The orderly and sequencing of development in urban growth areas is a challenging exercise. To achieve planned growth, is it reasonable for one developer to require an easement on another developer’s land to ensure the provision of servicing infrastructure?

In Australia Red Hill Real Estate Group Pty Ltd v Melbourne CC [2022] VCAT 1165 [sic Melton CC), the developer of a 340 lot residential subdivision in the Toolern Precinct Structure Plan (PSP), requested the Council to amend its permit to include a statement that it considers the economical and efficient subdivision and servicing of the Applicant’s land requires the Applicant to acquire an easement over the Respondent’s land.

The Applicant has approval to proceed with Stages 1 and 2 of its subdivision utilising temporary stormwater and sewerage infrastructure. However, for Stages 3 onwards, its servicing plans involve the bringing forward of the development of the stormwater and sewerage infrastructure on the Respondent’s land. The Respondent’s land is approximately 17.32 hectares with no approvals for subdivision.

Council supported the amendment to the permit with the requested statement. As such, the Applicant contended that condition 23 of the permit provides it with the ability to apply under section 36 of the Subdivision Act 1988 (the Subdivision Act) for the leave of the Tribunal to acquire the easements compulsorily.

The Tribunal noted that Section 36 of the Subdivision Act itself provides little guidance to the Tribunal on the circumstances in which it should exercise its discretion to grant leave to acquire an easement. Some guidance has been provided in the relatively small number of applications made to the Tribunal for leave under section 36 of the Subdivision Act. (See Curry v Casey & Ors [2010] VCAT 2101; Gale v Frankston CC (Corrected) [2019] VCAT 62; Ringwood JV Pty Ltd v Maroondah CC [2020] VCAT 1393). Some guidance has also been provided in cases involving an application under section 40(2) of the Subdivision Act to review a refusal or failure of a council or referral authority to make a statement under section 36.(See JT Snipe Investments Pty Ltd v Hume CC (Red Dot) [2007] VCAT 1831; Barnett v Frankston City Council [2005] VCAT 1985).

The parties agreed at the Hearing that submissions on the jurisdiction of the Tribunal involved questions of law. In particular, the parties generally agreed that the following questions of law arose for determination in the proceeding:

  • Does the Tribunal have jurisdiction to consider the application?
  • What is the meaning of the terms ‘requires’ and ‘economical and efficient’ as used in section 36?
  • Is the question of the sequencing of development an irrelevant consideration, or is it able to be taken into account by the Tribunal in determining the application for leave?
  • If leave is to be given by the Tribunal, are some of the conditions which parties have sought to be applied beyond the scope of the Tribunal’s power?

On the first question, the Tribunal found it was not lacking jurisdiction to consider the application for leave made in the proceeding. It noted that previous Tribunal cases involving applications for leave under section 36 of the Subdivision Act have confirmed that such proceedings are brought in the Tribunal’s original jurisdiction as they do not involve the review of any decision. However, it has also been confirmed by previous cases that the Tribunal’s role in proceedings under section 36 of the Subdivision Act “goes beyond merely rubber stamping” the determination of the relevant authority to make a statement as to the requirement for the acquisition of the easement. It stated:

This leads to a somewhat unusual situation. It is clear the Tribunal is not charged with conducting a review of the determination to make a statement. However, by ‘not rubberstamping’ that determination and deciding itself whether to grant leave for the acquisition of the easement, it may appear the Tribunal is reviewing the determination to make the statement. [26]

The Tribunal was satisfied that Council formed a view in supporting the statement and that view was formed with proper foundation.

On the second question, the Tribunal agreed with JT Snipe that ‘requires’ should be given its plain meaning of ‘necessary or indispensable’. It should not be read as meaning ‘reasonably required’; if section 36 had intended this it would have said so.

However, the Tribunal also agreed with the Applicant that in section 36, the term ‘requires’ is qualified by the reference to ‘economical and efficient subdivision’. It considered this qualification is one which by its nature tempers the meaning of ‘requires’ by discounting options which are not economical and efficient. It stated:

While I can well understand why the proponent of a subdivision and their engineering consultants might be focused on the implications of infrastructure options on the overall economic viability of the subdivision, I am not convinced that this is the focus of the reference to ‘economical’ in section 36 of the Subdivision Act.

Firstly, as accepted by the respondent, the ordinary meaning of the term ‘economical’ is ‘avoiding waste or extravagance; thrifty’. A similar definition of ‘economical’ from the Merriam-Webster Dictionary was included in the evidence report of Mr Black, which defined the term as ‘marked by careful, efficient and prudent use of resources’ or ‘operating with little waste or at a saving’. These definitions are all more suggestive of considering the relative costs of various servicing options rather than the effect of those options on the economic viability of the subdivision as a whole.

Secondly, the authorities charged with making a statement under section 36 are councils and referral authorities. These are authorities which have statutory functions relating to the delivery of infrastructure. They are not authorities which have a role in ensuring the economic viability of private subdivisions.

In addition, the economic viability of a subdivision may not always be a good indicator of whether a property right should be allowed to be acquired or removed over another persons land. It is not hard to envisage circumstances were a subdivision that was of marginal economic viability for a range of unrelated reasons, might be rendered economically unviable by a servicing option that was only a little more expensive than another. It is hard to envisage that Parliament intended for property rights to be affected in such circumstances. 

For all of these reasons, I have concluded that the term ‘economical’ in section 36 of the Subdivision Act has its ordinary meaning of avoiding waste or extravagance. I therefore agree with the submissions of the responsible authority that it is a term that can involve consideration of more than just money/cost effectiveness and can include consideration of things like delay. [51-55]

On the third question on sequencing, the Tribunal considered matters involving the sequencing of the subdivision within the broader development to be potentially relevant to understanding the ‘economical and efficient servicing’ of land. However, the weight to which such considerations should be given is something to be determined by the Tribunal as part of its consideration of whether it should exercise its discretion to grant leave.

As to whether leave should be granted, the Tribunal stated that, in relation to the sewerage easement, “just because a servicing option is cheaper to an applicant does not mean that it is an option that is economical overall, particularly where there may be real costs incurred by the respondent as a result of it.” It further stated:

As observed by the Tribunal in JT Snipe, section 36 refers to the both the terms economical and efficient, as two separate terms that both need to be satisfied. In this instance, we are not satisfied that option of proceeding straight to the construction of the ultimate sewerage infrastructure is economical as well as efficient.

Furthermore, even if we were satisfied that construction of the ultimate sewerage infrastructure was an economical and efficient option, we would not be satisfied that it was required for the economical and efficient servicing of the applicant’s subdivision. This is because the information before us does not satisfy us that the option involving temporary rising mains is not also an economical and efficient means of servicing the applicant’s subdivision. [92-93] (Tribunal emphasis)

In relation to the drainage easement, the Tribunal was not satisfied that there were no other economical and efficient ways of servicing the Applicant’s subdivision until the long term servicing option becomes available upon the development of the Respondent’s land. It stated:

We are also not satisfied on the evidence before us that temporary options to manage stormwater associated with the subdivision would not be economical. We have not been provided with any detailed evidence as to the costs involved in any stormwater servicing option. For example, we have not been provided with any information as to the impact of development of the applicant’s land prior to and separate of the development of the respondent’s land, whether it will involve any wasted resources and effort, including in respect of those amenity impacts identified by the respondent.

While we accept that the information before us does suggest that there may be real impediments for the economical and efficient servicing of the applicant’s subdivision with stormwater infrastructure without the grant of an easement, the information is not sufficient for us to conclude that there are such impediments to the economical and efficient servicing so that an easement is required. [126-127] (Tribunal emphasis)

Its overall conclusions included:

While being at the ‘development front’ is an incentive for many like the applicant to wish to progress quickly with the residential subdivision of their land, there is no requirement in the Toolern PSP or elsewhere for this to occur. There are a range of reasons that some people will take longer than others to progress with the conversion of their non-urban land to part of the new residential area. Where this occurs, this can hold up the provision of some of the infrastructure that is part of the ultimate plan for the area and which may be needed to service other parts of it.

In circumstances where there is a real public need for this infrastructure, then we would expect that a public authority would step in and use the powers available to them to acquire the relevant land and provide the infrastructure.

Where this does not occur, then we agree with the evidence of Mr Black that section 36 provides a mechanism for a private landowner to seek to provide the infrastructure. But the mechanism provided by section 36 is not the same as the mechanism available to public authorities to acquire interests in land. As was stated by the Tribunal in JT Snipe: 

the consequence of the s 36 process is the compulsory acquisition by one private landowner of an interest in the land of another private landowner. This may have potentially significant impacts for the landowner whose interest is sought to be acquired, and there is no Public Acquisition Overlay or ‘public purpose’ test such as commonly applies to the compulsory acquisition of land by public authorities. Despite the potential for compensation to be paid, a provision that facilitates compulsory acquisition and affects private interests in land in this way must therefore be very carefully considered and strictly applied. [26]

The Tribunal’s findings in this matter demonstrate the relatively high bar to achieve in justifying an easement for the economical and efficient subdivision or servicing of land. It is interesting to speculate at which point in time in a growth area should a public authority step in and compulsorily acquire the land to provide the necessary servicing infrastructure to ensure orderly sequencing of development.

See also:

  • Guide to Planning Appeals: Subdivision

3. Should loss of vegetation be balanced with heritage issues?

In Baird v Ballarat CC [2022] VCAT 1151, the Tribunal held that, in considering an application to remove a tree under the Vegetation Protection Overlay (VPO), it was not required to consider the potential implications of the retention of the tree on a heritage asset, namely an historic fence. The site is also in the Heritage Overlay (HO).

Application was made for the removal of a Red Flowering Gum. Council officers had not supported the tree’s removal and had recommended refusal of the amended application. However, the Council supported its removal and issued a Notice of Decision.

In submissions to the Tribunal, Council contended it was required to make a judgement regarding the acceptability of losing the Red Flowering Gum or the historical fence. In this case, it argued the Red Flowering Gum should be removed to enable the historical fence to be reinstated in its original location on the review site. It considered this to be the preferred heritage outcome for the review site. It was satisfied the opportunity for replacement planting of flowering gums within the front setback after the removal of the Red Flowering Gum, will ultimately make an important contribution to the amenity and urban character of the area.

The Tribunal found the loss of the tree would be notable and adversely impact the high quality and distinctive urban character of the area. In response to Council’s contentions on the need to balance vegetation protection and heritage, it stated:

Council and the respondent submit the removal of the tree is a balancing act that includes an assessment against the proper reinstatement of the heritage fence to the street frontage. It says the fence has original heritage fabric associated with the former Victorian dwelling on the site. Therefore, the fence should be protected above the retention of the Red Flowering Gum.

I do not agree this is a balancing act between the VPO or HO policy values and settings that the Scheme places on the heritage fabric of the fence and subject tree. As I noted above, the planning permit trigger here relates specially to the application and consideration of the removal of the subject tree under the VPO2. For the reasons above, I have found the removal of the subject tree is not supported under the policy objectives and key purposes of the VPO2.

I have also noted that the SoS associated with the HO166 does not distinguish between the respective contributions that can be made by private landscaped gardens, fences and mature canopy trees. These are of equal contribution value to the area and must be assessed in this policy context. [86-88]

The Tribunal agreed with the Arborist who provided evidence to the Tribunal that it would be possible to find a solution where the original heritage fence elements could be used to re-construct a modified fence and retain the tree.

Whilst it may be understandable that in submissions Council approached the matter from the perspective of balancing competing policies, the Tribunal’s decision in this matter is generally consistent with the approach articulated in Boroondara City Council v 1045 Burke Road [2014] VSC 127, which is that decision-makers are bound to consider the purpose of the discretion to be exercised in the context of any planning permission required. In this case, a permit was only required under the VPO, not the HO.

See also:

  • Guide to Planning Appeals: Vegetation> Vegetation removal

4. Misconstruing Green Wedge policy: Market refused in Green Wedge

In Green Wedge Guardians Alliance Inc v Hume CC [2022] VCAT 1168, despite Council support for a market comprising 177 stalls (113 outdoor stalls, 31 indoors stalls within an existing shed and 33 stalls within a new shed), and an outdoor food court area, the Tribunal set aside the Council’s decision and refused the grant of a permit.

The Applicant submitted that because ‘Market’ and ‘Plant nursery’ are discretionary uses in the zone, unconstrained by a condition requiring the uses to be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry or Winery, the uses can be considered to be consistent with the purpose of the GWZ. However, the Tribunal considered the Applicant’s submissions on the planning scheme to be misconstrued. It stated:

The inclusion of a use in Section 2 of a zone cannot be interpreted to mean that it is a use consistent with the zone purpose.

The correct approach to the consideration of a section 2 discretionary use is articulated at Clause 71.03-2 which states that with respect to Section 2 uses, these are uses that require a permit. Any condition opposite the use must be met. If the condition is not met, the use is prohibited: 

When making a decision about Section 2 uses Clause 71.03-2 states that:

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the Municipal Planning Strategy, the Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.

The inclusion of a use in Section 2 of a zone has the effect of allowing for the consideration of the acceptability of that use. [60-63]

Approaching the proposal from this perspective, the Tribunal held that:

  • The Hume Green Wedge does not have a limited role in agriculture. The existing land uses of the area have a significant number of equestrian uses in the area which make a significant contribution to the agricultural and landscape values of the area.
  • The proposal will result in the loss of agricultural land. Whilst the site is within a Green Wedge Zone, and not a Farming Zone, it is still a rural zone which seeks to ‘recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.’
  • The application will result in the loss of a significant amount of vegetation from the site. Whilst the Tribunal was not overly concerned with the proposed landscaping or loss of vegetation from the site, the proposed landscaping is a reflection of the scale of the proposal and its urban form which it found to be at odds with the character of the area and the values of the Green Wedge Zone.
  • The built form follows the proposed use of a large scale market on the site. Having found that the use is inconsistent with planning policy and the purposes of the zone, it follows that the built form will not be a comfortable fit within the area. The scale of the built form, including the expansive car park areas is a further indication that the scale of the development is inconsistent with the values of this green wedge.

Further, the Tribunal found that the tourism benefits of the proposal was overstated in that  the primary purpose of the market was to provide for the retail needs of a relatively local community.

See also:

  • Guide to Planning Appeals: Green Wedge, Market

5. Using enforcement order proceedings for ulterior motives

In O’Bryan v Hepburn SC (Red Dot) [2022] VCAT 1184, a seemingly very angry neighbour sought an enforcement order that works involving alterations to a miner’s cottage in Daylesford cease.

The site is in the Heritage Overlay. Application was made for a new front door though the plans endorsed by Council also referred to ‘solar panel switch board’ and a notation with an arrow ‘roof mounted solar panels’. Apparently the works commenced prior to the grant of any permit. Council did not require notice of the application.

The Applicant for the enforcement order relied on the alleged contravention of the scheme that the buildings and works were constructed or carried out without the permission required by the Scheme. However, the Tribunal observed that, even if the Applicant was able to prove that was a contravention on the date he made his application, from the time the permit was granted, he could no longer prove that was a contravention.

The Tribunal summarily dismissed  the application. This Tribunal red dotted the decision  “because it is a reminder to self-represented third party applicants for an enforcement order that the Tribunal is not an investigative or law reform body and that the application cannot succeed if no contravention can be proven.” Its red dot summary further stated:

In this proceeding, an application by a self-represented third party for an enforcement order against his neighbour was dismissed when the responsible authority’s grant of a retrospective permit cured the alleged contravention.

The applicant did not withdraw the application and the respondents applied for an order to strike out or dismiss the application. The responsible authority supported the respondents’ application.

The applicant opposed the striking out or dismissal of the application on various grounds including failure by the responsible authority’s officers to properly investigate the alleged contravention, the failure to notify the applicant of the application for a retrospective permit, the misleading entries on the responsible authority’s application register, the need for the Tribunal to investigate the responsible authority’s conduct generally in administering and enforcing the planning scheme and abuse of authority by the responsible authority’s senior staff.

The Tribunal held that all of these grounds were irrelevant or misconceived and, at a practice day hearing, it dismissed the application for the enforcement order.

See also:

  • Guide to Planning Appeals: Enforcement Order

6. Should a serviced apartment be converted into a dwelling?

In Chapel Street there is an eight storey building with a permit for 48 serviced apartments. In Kraemer v Stonnington CC [2022] VCAT 1087, an amendment was sought to the permit to convert one of the serviced apartments to a dwelling.

The Applicant submitted the serviced apartment has all the requisite features of a dwelling and is well-proportioned with an area of approximately 56.5 metres squared and a north-facing balcony that has an area of 3.4 metres squared accessed directly from the main living area. The Applicant further submitted there is strong strategic support for the proposal as the site is located in the Chapel Street Principal Activity Centre.

On the other hand, the Council submitted the proposed dwelling represents an inappropriate planning outcome due to the internal amenity that would be provided to future residents. It considered the conversion to a dwelling to be unacceptable as serviced apartments generally provide a lesser standard of internal amenity due to the accommodation provided generally being temporary. It does not consider the level of amenity provided to be acceptable for permanent residents/occupants.

Reference was made to a number of cases where a distinction is made between permanent and temporary accommodation, including Adamco Developments v Monash CC [2004] VCAT 2359, 487-497 Flinders Lane Pty Ltd v Melbourne CC [1998] VCAT 192 and Australian Conservation Foundation Inc. and Surowee Pty Ltd v Melbourne CC and Anor [2002] VCAT 1.

In affirming the Council’s decision to refuse the amendment to the permit, the Tribunal stated:

As I am assessing the use of the existing serviced apartment as ‘permanent’ dwelling, I consider there is an expectation the amenity standards for a dwelling that typically has permanent residents is higher than that of a serviced apartment that is generally used for to short-term occupation and has less reliance on amenity in the same way as a dwelling. One of these expectations is the provision of private open space that is a key matter in this application for review. I am less concerned with the other matters raised by Council with respect to storage, kitchen facilities, access to the bathroom and waste collection.

The size, dimensions and accessibility of a private open space area should allow it to meet the reasonable recreation needs of residents. With respect to the provision of private open space I find the proposed balcony with its limited area of 3.4 metres squared and width of 1.0 metre fails to provide an acceptably useable area for future residents. [25-26]

See also:

  • Guide to Planning Appeals: Amenity > Internal amenity