http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1824.html

Below we feature an extract from a recent VCAT hearing and the member’s comments on Council’s ‘Minimal Change Areas’. Whilst it is true that VCAT must only ‘consider’ planning policy, the comments below illustrate clearly the countless loopholes in the Glen Eira Planning Scheme.

“Are three dwellings in conflict with Council’s Minimal Change Area Policy?

4.         This was the key issue in Council’s case. It was agree by the parties that putting aside minimal change area policy, the site is well located to further urban consolidation policies. It achieves policies at clause 16 [Housing], which recognises the need to increase the proportion of housing to be developed within the established urban areas. It also furthers policies at clause 16.01-4 [Housing Diversity] to provide a range of housing types to meet the increasingly diverse housing types.

5.         However, Mr Hatcher submitted that Council’s Municipal Strategic Statement [MSS] establishes a targeted approach to residential development by establishing a hierarchy of housing diversity areas within the municipality, where a range or housing types are encouraged. In all other areas, Council seeks minimal change.

Council refused the application on the ground that the proposal fails to meet the test of Clause 22.08 [Minimal Change Area] policy as the proposal is for more than two dwellings. The review site is within a minimal change area. Council acknowledged that the size of the site may provide an opportunity for multi-dwelling development in it s own right, but fails in this case due to the minimal change policy. Specifically referring to the number of dwellings, the policy recognises that more than two dwellings may be appropriate to be achieved where factors such as the following apply:

  • Consider developments of more than two dwellings provided it is clearly demonstrated that the standards for site coverage, rear setback and private open space in the Schedule to the Residential 1 Zone have been met. Circumstances where more than two dwellings may be achieved could include any of the following:
  • Where the site is in an area characterised by larger than conventional lots.
  • Where the site is significantly larger than the majority of properties immediately abutting the title boundary and the properties directly opposite.
  • Where the prevailing development in the street and neighbouring streets is predominantly characterised by multi-unit development.

Mr Barber put to me that consideration of this proposal is not a ‘numbers game’ and that despite the policy as identified above, these provisions are not exhaustive, but rather are circumstances where it could constitute an appropriate reason for the construction of more than two dwellings.

The application of Council’s minimal change policy has been discussed by this Tribunal. I agree with Mr Barber that development of land should not be a ‘numbers game’. The planning scheme no longer refers to densities as a tool for assessment. In Galanis v Glen Eira CC[2] Member Hewet made observations regarding the Tribunal’s approach to development applications within the minimal change area. He states:

Minimal change areas are not “no change” areas. The policy recognises that within these areas a contribution still needs to be made to providing housing diversity and opportunities for new development. It needs to be recognised that that the planning scheme does not identify any residential areas as “no change” areas, and even those residential areas which are protected by heritage overlays (which this area is not) are not immune from development and
redevelopment.

[8] The inclusion of the review site within a minimal change area under the Council’s policy framework, does impose a constraint on the level and scale of development of the site, but it is not a prohibition on medium density housing.
An application for this form of development needs to demonstrate that it appropriately responds to and respects the existing character of the neighbourhood. I acknowledge that a judgement needs to be exercised in determining whether a proposal has successfully met this test, and legitimate debate can occur around the exercise of that judgement.

I adopt this approach and find that three dwellings are not prohibited on this site. The test is how the development respects the character of the neighbourhood, its assessment against the provisions of clause 55 and what impact the development has on its
neighbours, which are discussed below.