VCAT is continually accused by councillors of being the fly in the ointment over planning applications, rather than looking elsewhere for the potential culprit. We highlight one recent case to illustrate the problems with this view.

On December 2nd VCAT varied conditions under appeal by the developer ‘at 257 – 259 Alma Road, Caulfield North for a shop and nine dwellings as a four storey development. This included a waiver of loading bay requirements and a reduction in car parking requirements”.  We focus on some of the member’s comments, especially since the Planning Scheme review basically ignored the following issues. The member’s comments also raise questions as to how well prepared Council officers are in defending the position taken, and whether councillors really understand what they’re doing!

“All parties acknowledged that local policy 22.07 was not clear in its direction to assess proposals in a Mixed Use Zone. Ms Bowden (for council) submitted the policy must be interpreted according to the “residential areas” provisions as a mixed use zone is a residential zone, although she acknowledged that some of the commercial area policies provide more relevant design considerations, notably about addressing interfaces to residential zones.

I agree that a mixed use zone does form part of the suite of residential zones and therefore the logical interpretation of clause 22.07 is to consider the site as part of a residential area. However, the reading of this section of the policy becomes somewhat illogical as one of the policy statements is to “Recognise that these areas offer opportunities for multi-unit development, but at a lower scale and density than development in the commercial and mixed use areas[5] of neighbourhood centres”.

A logical interpretation of this provision is that mixed use areas can and should provide more intensive scale and density than other residential zones. The policy is also to “encourage a decrease in the density of residential development as the proximity to the commercial area of the neighbourhood centre decreases”. 

A little further on we have: 

“It is within my scope in assessing review application P757/2010 to delete the condition to require balconies to be within the property boundary but as the condition was not contested I am unable to determine why Council imposed this condition. I note the urban design assessment tabled by Council makes no comment about the overhang of balconies other than to say “place the balconies on the building to create a more consistent building rhythm”. To build over public land requires consent of the public land manager, being Council. I therefore will not direct to remove the condition as I do not know if such permission would be granted. However, I note that based on submission and evidence put to me about the general building design I do not see that their overhang will necessarily result in excessive bulk to the building, provided the balconies are of a suitable material and form to break up the building mass. 

(Ms Bowden) stated Council had taken a cautious approach ….that requires the third level of the building be setback 9 metres from this side boundary. In response to my questions, Ms Bowden was unable to identify why 9 metres was the chosen distance to setback, as this was a condition imposed by the Councillors at the meeting that considered the application. The permit applicant contests that the permit condition is unnecessary, unfounded and would result in substantial loss of internal floor space”.