For this post we feature two seemingly unrelated issues: quotes from the latest VCAT decisions which all overturned council refusals to grant permits and, an article from today’s Age, which addresses developers’ concerns about community voices at VCAT and Labor’s stated intention of ensuring that ‘community’ opposition to applications is enshrined in legislation and incorporated into VCAT’s decision making. What these two areas do have in common is that whilst community involvement is indeed welcomed with open arms, unless Councils’ planning schemes are amended and all the ‘loopholes’ closed off, then little will change in our view.

The following extracts taken directly from these latest VCAT hearings illustrate clearly why the Glen Eira Planning Scheme is currently failing its residents and is a boon to developers.

144-144A Hawthorn Road, North Caulfield – Zoned Commercial – The construction of a six-storey building (plus basement) accommodating two shops, 37 dwellings and associated car parking

There is nothing in the Planning Scheme to indicate that a uniform height is sought for buildings within this centre. Indeed, as noted during the course of the hearing, the land within the activity centre is not affected by any overlays that regulate built form outcomes, such as a Design and Development Overlay or Heritage Overlay. Activity centres are commonly characterised by a varied skyline or building profile. Heights vary, and it is not unusual to find that one building is taller than the others. It may well be that this building will be the tallest in the activity centre. If this were to eventuate, we do not consider it to be an unacceptable planning outcome as, ultimately, it is likely that the disparity in the height with other buildings would be confined to something in the order of two storeys. We consider this to represent an acceptable graduation in height within this context.

We acknowledge the Council’s concerns regarding the impacts associated with a series of incremental approvals that reduce parking requirements for new developments. We also recognise that this centre lacks an off-street public car park. Parking provision in the activity centre is a broader strategic planning issue that should be approached on a centre-wide basis. If warranted, such an exercise may lead to the introduction of a Parking Overlay, for example, that would assist the Council in achieving its objectives in respect of satisfying the car parking requirements of the centre over the longer term.


252-254 Tucker Road, MCKINNON – Zoned Neighbourhood Residential – To construct a two storey building over a basement, to use the land for a child care centre and to erect a business identification sign. The child care centre would accommodate up to 132 children and 33 staff.

Mr O’Leary advised that Council would not prosecute ground 6 on the Refusal to Grant a Permit as the trees referred to in the grounds of refusal have been removed.

  • The responsible authority says the child care centre should be located within a housing diversity area because it is a large centre. The responsible authority says that non residential uses such a child care centre in minimal change areas should be smaller, less intensive activities than this proposal, and the larger facilities should locate in housing diversity areas. Council says that clauses 21.08 and 22.11 encourage non residential facilities such as medical clinics and child care centres to be small and operate from existing dwellings. This approach would enable dwellings to be retained (possibly for housing choice and neighbourhood character reasons) and to limit possible off site amenity impacts.
  • While I accept the policy encourages the use of existing dwellings, I am not persuaded clauses 21.08 or 22.11 explicitly distinguish between small and large facilities. Policy does not contain any indicators of intensity such as number of staff, children, floor area, car parking spaces or the like that could distinguish a large centre from a small centre.
  • Furthermore, I note that Council has had the opportunity to distinguish between larger and smaller centres. Amendment C123 proposes to amend clause 22.11 but it does not refer to larger or smaller centres. The amendment does not seek to include conditions in the table to the NRZ that could prohibit larger centres from the zone.


10 Bolinda Street, Bentleigh East – Zoned Neighbourhood Residential – Construction of a two double storey dwellings above a basement level

The applicant pointed out that Council had incorrectly assessed the proposal against the Character Area 13 precinct and the review site is within Character Area 15 East Bentleigh, south of Centre Road.



Don’t give Victoria residents a bigger say – developers

Date: March 12, 2015 – 12:15AM

Residents should not be given a bigger say at Victoria’s planning tribunal because it would not be “fair”, according to a developer lobby group.

In a letter to the Premier and ministers, the Property Council’s Victorian executive director Jennifer Cunich said they opposed  “the Government’s plans to add additional weight to community opinion in regard to VCAT decision-making”.

“Such a move goes against the very basis of a just and fair legal system. We would consider any attempt to make such changes a fundamental deterioration of Victoria’s legal apparatus,” it said.

Labor has pledged to amend the Planning and Environment Act “so that, where appropriate, the Victorian Civil and Administrative Tribunal (VCAT) must take into account the extent of community opposition to planning proposals”.

“The changes would see significant community opposition – such as that in response to Tecoma McDonald’s or Prahran’s Orrong Rd Towers – formally taken into account,” Labor said in its election commitments.

Labor said the changes were not about appeasing a noisy minority and instead would give locals a fair hearing and recognise a community standing together.

James Larmour-Reid, from the Planning Institute, urged caution in relation to the proposed reforms.

“Community engagement is central to our planning system, but we need to make sure  that VCAT decisions are based on planning principles and policies,” he said.

While it was completely reasonable for the planning tribunal to take into account community sentiment, “sentiment alone cannot be allowed to drive the outcome”.

Opposition planning spokesman David Davis said the government’s promised tribunal changes were “light on detail”.

“What does it really mean and how will this actually operate?” he said.

“If the plan is to make the capacity of people to object more accessible in a reasonable way, we’re in favour of that,” he said.

The Property Council’s priorities letter also called on the government to sell Victoria’s share of the Snowy Mountain Hydro Scheme, old school sites and disused rail land to help fund new infrastructure.

It also calls for a flexible urban boundary – “a firm urban growth boundary will unnecessarily restrict supply” and calls on the government to continue support for the Victorian Energy Efficient Target Scheme to reduce energy bills and emissions.

Some of the former Coalition government’s planning actions were criticised in the letter.

“The former government’s decision to undertake rezoning prior to the release of the masterplan or vision for the precinct (Fishermans Bend) has caused widespread confusion and uncertainty,” the Property Council said.

On new housing zones, Ms Cunich said: “As they currently stand, the zones have caused much community angst, and will adversely affect Melbourne’s housing supply and affordability”.

Municipal housing targets should be set based on up-to-date population and demographic modelling.

A spokeswoman for planning minister Dick Wynne said: “The Andrews Labor Governnment promised it would give communities a fair go at VCAT, and this is what we will do.”