A reading of recent VCAT judgements can only lead to the conclusion that Council’s presentations at VCAT are not only sub-standard, but that the necessary work required has simply not been done. When millions upon millions of ratepayer funds are used to fund a planning department, then it is incumbent on that planning department to ensure that when it fronts up to VCAT, that it has done its required homework and that all documentation supports council’s decisions.

Council continually uses VCAT as a scapegoat complaining that council ‘policies’ are overlooked, ignored, etc. But when the Planning Scheme is entirely silent on an issue; when so many ‘tools’ are missing that could restrict over-development, and when council itself chooses to over-ride its own scheme, then VCAT is definitely not the culprit that Council would like residents to believe.

Two important and recent judgements provide plenty of evidence for our above assertions.

2-4 Penang Street, McKinnon (See: http://www.austlii.edu.au/au/cases/vic/VCAT/2015/1073.html)

Readers will remember the huge community reaction to this application for a 3 storey apartment block in a GRZ1 zone. Because of the number of objections, publicity, etc councillors voted to reject the application. This is part of the published VCAT judgement. Please note, that ‘no decision’ has as yet been made. It represents an ‘interim’ order, giving the applicant the opportunity to fix up a few details and to resubmit an amended application. Here are some extracts – but residents need to read the entire decision.

…..the planning scheme encourages a significant degree of change in the built form and density of development in this neighbourhood

The residents do not want an apartment building on this site. Many of them are opposed to the significant extent of change envisaged and encouraged for this neighbourhood in the planning scheme. The Tribunal must consider the acceptability of a proposal having regard to the physical context and the planning policies and controls that are in the planning scheme or that are seriously proposed to be included in the planning scheme (e.g. a well advanced planning scheme amendment). In this case, the Council has not advised that there are any proposed planning scheme amendments of relevance. Hence, we must consider and give weight to the planning scheme policies and controls. If the residents consider these controls and policies are not appropriate for this neighbourhood, that is a matter for them to pursue with the Council acting in its role as the planning authority for the municipality (responsible for proposing changes to its planning scheme).

If there was any doubt about the extent of change envisaged for this neighbourhood (e.g. units and townhouses rather than apartments), the nomination of a maximum building height clarifies this. A building height of 10.5-11.5 metres is not akin to the mostly two storey recent developments referred to by Mr Ziltzer. Rather, it is a three storey building height. This means a three storey apartment building on this site is an acceptable planning outcome.

We agree with the residents that the available on-street car parking lessens as you get closer to the train station. The residents also said there is limited on-street parking around the Clarendon Terrace retirement village next door in Graham Avenue due primarily to staff and visitor parking. We did not experience this during our inspection of the site and surrounds, which may have been due in part to the fact that it was a weekday when there may be a fewer number of visitors to Claremont Terrace. Nevertheless, even if we accept the residents submissions on this point, we also have Ms Dunstan’s expert evidence that includes car parking surveys. These surveys demonstrate that there is available on-street parking immediately surrounding this site on all days of the week. The Council does not oppose the proposed reduction of one on-site visitor car space and raises no concern about any impact upon available on-street parking. On the basis of Ms Dunstan’s evidence and the Council’s support for this aspect of the proposal, one additional residential visitor car parking on the street is an acceptable outcome that will not adversely impact upon the general availability of on-street parking.

Mr Morgan questioned the accuracy of the shadow diagrams, particularly the afternoon shadow impact upon the rear open space area of 6 Penang Street. We note that the accuracy of these shadow diagrams was raised during the processing of the permit application and there is a comment in the Council officer’s report that the shadow plans would be checked by both the Applicant and the Council officers (as a result of the Planning Conference with a councillor, council officers, objectors and the Applicant). This does not appear to have happened and Mr and Mrs Morgan are frustrated and concerned about this. We asked the Applicant to review and update the afternoon shadow diagram during the hearing. This was provided on day 2 of the hearing and it generally accords with Mr Morgan’s estimate of the extent of shadow. The 3pm shadow will extend almost to the east side of the rear addition of Mr and Mrs Morgan’s house. This impact is acceptable as it leaves the majority of the rear secluded private open space area, including the area in the centre and to the southeast, free of shadow.

Overall, there will be a significant change to the west side of 6 Penang Street and the outlook from the west facing windows and from within the rear open space area will be different. This extent of change is acceptable because of the planning controls and policies that apply to this area.

The residents submit in 2011 water flowed down Graham Avenue, along an open drain that abuts the southern rear boundary of this site, through this site (both 2 and 4 Penang Street), onto Penang Street and then across into the properties on the north side of Penang Street, including Mr and Mrs Forstmanis’ property. The residents also submit that cars floated down Graham Avenue. These submissions about the path of overland flow do not accord with the mapping of the SBO. The Council made no submissions about this issue during the hearing. Its drainage engineering referral comments request no net increase in peak stormwater runoff in Council’s drainage network with post development stormwater discharge to be maintained at pre-development level for 10 year ARI. There is no mention of whether there are any potential overland flow issues for the basement car park or the ground floor apartments, particularly those cut into the natural ground level. The Applicant submits this issue is a matter for the drainage authorities to address by reviewing the SBO in light of submissions such as those made by these residents. The Applicant sought advice from the Council during the hearing about this issue. We were told the Applicant was unable to obtain any information about a flood level for this site, and that the Applicant was advised there is no proposal to place a flooding overlay on this site.

Melbourne Water’s views have not been sought during this permit application process; and it is not known whether the extent of impervious surfaces proposed with the cut into the natural ground level is acceptable given the submissions that this site and much of the surrounding area are liable to overland flow.

In light of the mapped extent of the SBO in Penang Street and the residents submissions and photographs tendered about the overland flow, we are concerned about whether the basement may be liable to flooding and whether the ground floor units and associated paved courtyards cut into the natural ground may be liable to overland flow from the south (e.g. the rear open drain and Graham Avenue). This is a matter that should be further considered and addressed as part of the preparation of amended plans in response to our interim order. We note that the Housing Diversity Area Policy at clause 22.07-3.2 has specific policies for those areas that are affected by a SBO. This includes recognising that such areas may have a limited capacity for multi-unit development as they are liable to inundation from overland flows. Whilst this site is not in a SBO, we are not persuaded any implications associated with the potential for overland flow have been fully considered. Given all of these circumstances, we have decided that the views of Melbourne Water and the Council’s drainage engineering section should be specifically sought on any amended plans for this proposal.

This brings us to the most difficult issue in this case – how does this proposal respect the neighbourhood character? The purpose of the General Residential Zone (GRZ) includes implementing neighbourhood character policy and encouraging development that respects the neighbourhood character of the area. Clause 55 elaborates on this by encouraging development that either respects the existing neighbourhood character or contributes to a preferred neighbourhood character. A preferred character would be one identified through a neighbourhood character policy. In this case, the Council submits there is no preferred neighbourhood character statement or policy because this site is in a Housing Diversity Area. Unfortunately, the Housing Diversity Area Policy provides no helpful guidance on how development in such areas should respect the neighbourhood character. Similarly, the Schedule to the GRZ does not contain any requirements other than the maximum height of 10.5-11.5 metres. So we are left with having to make a decision about how a modern three storey apartment building will respect the existing neighbourhood character.


411-415 Glen Huntly Road, Elsternwick (See: http://www.austlii.edu.au/au/cases/vic/VCAT/2015/1074.html)

This application was in Commercial 1 zone and within a Heritage Overlay. The application was refused by both Council and VCAT. However, once again, the refusal was achieved because of the VCAT member’s concerns, and not anything that Council put up.

The Council did not raise any internal amenity concerns in their grounds of refusal. Nor did they raise any concerns in their submission at the hearing, or in their questioning of the expert witnesses. In contrast, I have some serious and significant concerns regarding the potential for the future occupants of these dwellings to experience an acceptable or reasonable level of amenity. I have two main areas of concern.

  • My first concern is regarding the overall size and layout of some of the apartments that face either north or south. Inherent in this design is an effort to squeeze as many apartments as possible with either a northern aspect to the public car park or a southerly aspect to Glen Huntly Road. On the one hand, this intent is a positive one as it is far preferable to have apartments face public land, rather than adjoining private properties. On the other hand, when taken too far it has the potential of creating very narrow apartments. I fear that this is one design response where a good intent has been taken too far. As a result, there are a number of apartments that are relatively narrow, as evidenced by a living space that is around 2.8 metres wide. Of the 32 apartments proposed in this development, 14 have a living space of this width.
  • Surprising, 12 of these 14 apartments comprise two bedrooms, and so will potentially have a larger number of occupants than the one bedroom apartments. In some cases these narrow living spaces are combined with relatively tight bedrooms, at around 2.7 by 2.8 metres. In some apartments, these narrow living areas are provided in relatively small apartments, with two of the two bedroom apartments measuring 55.8 square metres, and another at 56.2 square metres.
  • I sought to explore my concerns with Mr D’Amico and Mr Sheppard, and also received submissions from Mr Pitt. I think it is fair to conclude that the apartments that are before me are at the smaller end of the spectrum of what might be considered acceptable apartments, where some of the internal spaces are rather tight. What I sought to do with my questioning of Mr D’Amico in particular is to try to establish whether these apartments sat within the range of acceptability, or whether indeed they have spaces that bring into question their usability and functionality, and their ability to provide a reasonable level of amenity. I accept that such a decision is a matter of subjective judgement, in the absence of any set of standards that I might apply to apartment designs. However it is a subjective decision that I take very seriously.
  • My second concern is with the proposal to design one inboard apartment on each level, with a sole orientation to the western side boundary. On each level this inboard apartment consists of one bedroom, and ranges in size from 45.6 to 46.2 square metres. The apartment has a 5.9 square metre balcony, and both the balcony and the living room window are set 4.4 metres from the western boundary, and in a light court measuring 5.7 metres wide. Three sides of the light court are enclosed by the proposed development to the top of the fifth floor. The only opening to this light court below the top of the fifth floor is via the adjoining property to the west.

Conclusions & Questions

  • Why does this Council continually front up to VCAT without the necessary ‘evidence’ to support its decision making?
  • Why doesn’t Council do what it stated it would do at the planning conferences – ie shadow diagrams review?
  • Why doesn’t council know what areas are subjected to flooding and why haven’t the SBO’s been reviewed?
  • Why is there no ‘preferred neighbourhood character’ statements for Housing Diversity Areas? Why is Council not pursuing an amendment to introduce such controls?
  • Why are applicant’s often ‘dubious’ traffic reports accepted at face value without council checking for veracity?
  • Why does ‘internal amenity’ rarely get a mention in council’s reports and arguments?
  • How much longer will Council continue with the farce that all the problems can be laid at the feet of VCAT?
  • How much more of ratepayer’s money will be expended on substandard presentations at VCAT?