How many more stuff-ups should the community pay for before heads start to roll? What excuses will this planning department come up with this time? Another ‘clerical error’? Another ‘slight oversight’? Each stuff up costs money, staff time, and of course, embarrassment and an insight into plain old incompetence. In this instance, the VCAT member himself has laid all bare. When officers delegated with the responsibility of making decisions based on their own planning scheme don’t seem to know what the planning scheme contains, then one has to question what is going on. We present some of the extracts from the latest schemozzle. For the full decision, see: http://www.austlii.edu.au/au/cases/vic/VCAT/2013/770.html. The application is for 20 Hawthorn Rd, North Caulfield and involved a 3 storey and nineteen dwellings (eleven one-bedroom and eight two-bedroom).

There is uncertainty about whether the subject land is located in a housing diversity area or a minimal change area under local planning policy.

There is little doubt in my mind that the subject land is in a housing diversity area under local planning policy. As the purpose of local planning policies is to give effect to the municipal strategic statement (MSS), it is relevant to start with the MSS. The MSS includes a Framework Plan the purpose of which is to ‘support and promote’ specific land use outcomes. The Framework Plan, although indicative, includes the subject land as an area along a tram route where ‘multi unit development will be encouraged’. The MSS adopts a targeted approach to meeting future housing needs. It encourages multi-unit housing in identified housing diversity areas. Land along tram routes is a housing diversity area.

The housing diversity area policy confirms the subject land is in a tram routes housing diversity area, having regard to the Glen Eira ‘policy framework plan’ and the Caulfield North ‘Framework Plan’. I will return the specifics of the tram routes policy shortly.

That the subject land is in a housing diversity area is confirmed by the minimal change area policy. The policy was recently remade with amendments in Amendment C87 of the scheme (C87). The Council exhibited C87 before deciding this permit application. In the ‘Policy Framework Plan Minimal Change Areas’ map in the scheme when C87 was exhibited and in C87 shows the subject land not in a minimal change area. C87 was approved and commenced on 31 January 2013 and after the Council decided the permit application. It did not change the identification of the subject land as in a minimal change area in that map. In other words, C87 has not changed the identification of the subject land as not being in a minimal change area.

I refer to this history because the Council assessed the permit application as if the relevant policy was the minimal change area policy rather than the housing diversity area policy. This was an error. The Council has now decided that the identification of the subject land as not in a minimal change area for policy purposes was a ‘mapping error within clause 22.08 mistakenly introduced in Amendment C87’, and has prepared Amendment C108 to correct the ‘error’.

I must apply the scheme in its current terms. The subject land is not in a minimal change area for the purposes of the local planning policy framework. The Council has prepared an amendment to include it in such an area but no notice of the amendment has yet been given, so it may be well away from being adopted and being a serious entertained planning proposal or being approved. I therefore give Amendment C108 little weight.

The schedule to the R1Z is now potentially inconsistent with the local planning policy framework. The schedule sets modified standards for site coverage, rear setbacks and private open space for land in ‘a minimum change area … as shown on the map forming part of this schedule’. The map attached to the schedule shows the subject land in a minimal change area.

How should the scheme be read to resolve this potential inconsistency? In my view, even though the subject land is not in a minimal change area for policy purposes but is in a minimal change area under the schedule, the scheme needs to be read to as if there are two minimal change areas for separate purposes. The separate and distinct nature of the two areas is reinforced when it is understood the drafters of the scheme could have applied the different standards for a ‘minimal change area as specified in clause 22.08’ in the schedule. That would have been clearer. But the drafters did not do this. They decided to refer to a minimal change area as defined by map included in the schedule. It may be unfortunate and confusing that both are identified as a minimal change area and the relevant maps are very similar in overall appearance but the potential inconsistency must be resolved by giving the two minimal change areas an independent effect

Building site coverage is complex for this proposal. Mr Bastone’s (for developer) estimate is 53%. Mr O’Leary’s (for Council) estimate is that, although the basement covers about 75% of the site, it is over 60% because part of the ground floor is above the ground towards the rear of the subject land. Mr O’Leary unnecessarily and inaccurately included ground level covered by projecting balconies in his calculation. For the purposes of assessment, I would accept that the coverage is around 60%. The schedule to the R1Z provides a standard that coverage not exceed 50%. It applies to land in a minimal change area shown on the map in the schedule. In a housing diversity area, the standard is 60%.

In my Mr Fairlie’s opinion, one basement visitor space is impractical but I prefer the submissions of Mr O’Leary that with sufficient organisation between residents and their visitors, one space would be of assistance. The owners corporation will need to make rules about use of the space.