Several recent VCAT decisions reveal in full, glorious detail, the utter fumbling, Keystone Cops approach by our planners, elected representatives AND the countless drawbacks (failings) of the Planning Scheme. We also draw attention to the incestuous nature of the development industry. Former Glen Eira planners are now working for private companies and appearing in the very same role they had with council (ie Andrew Bromley was council’s officer at VCAT. He now appears at VCAT for the developer. Ms Bowden is also with the same company).
There is definitely a ‘cut and paste’ mentality in many of the decisions and conditions handed down by council. Entire slabs are transferred willy-nilly from one application to another, without it would appear, having any sound basis. Conditions imposed become the modus operandi of a council fighting its own planning scheme. Often, as in the following decisions, residents have to wonder whether common sense and competence have entirely deserted those involved.
Decision #1 – 14-16 Elliot Avenue, Carnegie. The application was for 4 storeys and 21 dwellings. Officers recommended a permit and councillors decided (as per their usual tactic) to lop off one storey and increase setbacks. Lobo was the only councillor to vote against the Esakoff and Okotel motion. (Zoned RGZ1) In her decision, the member rejected most of the conditions imposed by Council and modified countless others.
The top floor required to be deleted by the contested condition is recessed from the lower floors. The setback of this floor meets Standard B17 of Clause 55.04. As an interface with its neighbours, the proposal meets the test of side and rear setbacks. If Council is of the view that a four storey presentation to Elliott Avenue is not appropriate, there are ways of managing it, such as further setting it back from the street rather than deleting the whole floor altogether, with a loss of three dwellings. On policy and emerging character basis, this condition is not justified and will be deleted.
This condition requires the basement to be setback a minimum of 3 metres from the rear (eastern boundary) and 5 metres from the front (western) boundary. The reason for this condition is to provide adequate ground soil volume to achieve the landscaping required by Condition 9. ….. Council submitted that the extent of the basement footprint would significantly constrain the ability to provide canopy trees. It reasoned that the additional setback of 2 metres at the front and 1.2 metres at the rear, (currently proposed at 3 metres at the front and 1.8 metres at the rear) would provide additional in-ground landscaping opportunities to soften the building. …..In opposing this condition, Mr. Bromley cited a number of Tribunal decisions where Council has sought permit conditions to increase setbacks for the purpose of landscaping[4] and which were rejected by the Tribunal. In fact, the depth of setback from Elliott Avenue sought by Council at No. 2 Belsize Avenue is 3 metres[5] and 2.8 metre for 330 Neerim Road[6], and not the 5 metres sought in this matter…..If a 3 metre setback was considered by Council to be adequate for landscaping elsewhere in the area, requiring a 5 metre setback in this instance is excessive. I accept Mr. Bromley’s submission that it is not necessary to further increase the setback of 3 metres from the front and 1.8 metres from the rear. This condition will be deleted.
This condition requires part of the northern bedroom of Unit 102 that cantilevers into the front setback to be deleted. Council submitted that this part of the bedroom of the dwelling cantilevers over the ground floor into the front setback area, and that removal of this part of the bedroom would reduce the dominance of the building when viewed from the public realm. A careful reading of the design of this part of the building indicates otherwise. The cantilevering of this dwelling is not confined to the bedroom, but the living and dining area of that dwelling. Even if the wall of the bedroom is recessed according to this condition, the balance of the northern elevation of that dwelling still cantilevers over the ground floor. I cannot understand the purpose of this condition. It will be deleted.
The remaining contested condition is 1q) which requires written confirmation from a qualified traffic engineer demonstrating that the basement and ramp complies with Clause 52.06 of the Glen Eira Planning Scheme, and that vehicular access is acceptable. Condition 1d) already requires the basement access and layout to comply with Clause 52.06 and to the satisfaction of the responsible authority. If it does not and is not approved by Council, such a layout does not become part of the endorsed plan. This condition is superfluous. (and deleted).
Decision #2 – 64-66 Bent Street, McKinnon – application for part 3 and part 4 storey with 31 dwellings. Council officers recommended permit. Councillors refused permit but only after Sounness and Pilling lost a motion to grant a permit with conditions. Hyams and Esakoff then moved to reject. Final vote was 5 to 4 with Magee, Pilling, Sounness and Lipshutz opposing refusal.
It is important to note that this policy is not about respecting the existing neighbourhood character. There is no preferred neighbourhood character nominated for housing diversity areas. For residential development, it is about scale relative to the commercial centre, for it not to dominate the streetscape, and promotion of site consolidation to maximise development opportunities.
It also means that the scale and building mass of a development, if it is not at the edge against a lower intensity zone such as Neighbourhood Residential Zone (a minimal change area) would not be the same as the existing low scale single storey single dwelling character of an area, if that were the current character.
Decision #3 – 1A Orrong Crescent & 632 Inkerman Road, Caulfield. 4 storey mixed use; 18 dwellings, 3 shops. Zoned C1Z. Officers recommended permit with conditions. Councillors voted unanimously for 3 storeys and 16 dwellings.
Condition 1(a) requires deletion of the third floor (top level) and the roof replaced by a style that is consistent with the architectural style of the building, and which may include pitched forms. This condition was not a recommendation of Council officer’s, and has the most severe impact on the yield of the development. Condition (d) requires additional setback of the third floor. As this condition is to require further setback of the top floor which is required to be deleted, it contradicts Condition 1(a).
As for policies, there is common ground that the site is not specifically covered by a policy that relates to a site in a Commercial 1 Zone and which is not part of an activity centre. The commercial centre in Kooyong Road just south of Inkerman Road is not contiguous to the site. That centre contains single, double, and 3 storey commercial buildings. The site is in the Commercial 1 Zone, and the existing building has been a commercial building for many years, decades before planning controls. As for the notion that the site should be treated as if it is in a residential zone such as the Neighbourhood Residential Zone as its surrounding properties, it is not so in fact or law.
How many more times must council be knocked back on attempting to include the no parking permits as a condition of a permit instead of in the ‘notes’? Obviously very, very slow learners – or do they even bother to read, analyse and assess VCAT decisions?
This condition requires the permit holder to inform all purchasers about this planning permit with regard to Note C. Note C states that residents of the dwellings in this development will not be issued Residential parking Permit (including visitor parking permits). Council explained that it is its standard practice that residents of medium density development do not qualify for residential parking permits, and that this condition will ensure that all purchasers are informed of this position. A permit condition is a requirement. Once the development is complete, there is no further requirement to be met. A ‘Note’ is information and not a requirement of the permit. It is not appropriate to make a ‘Note’ as if it is a requirement of the permit.
Decision #4 – 482-4 North Road, Ormond. Application was for 4 storeys and 24 dwellings. Officers recommended deletion of 3 dwellings and other conditions. Councillor majority voted for 4 storeys and 19 dwellings. Zoned MUZ
My discretion regarding the appropriate setbacks to the south boundary is guided by the provisions of the zone and by the planning policy framework. The land is within the Mixed Use Zone. The purposes of the zone are to implement policy, to provide for housing at higher densities and to encourage development that responds to the existing or preferred neighbourhood character of the area. There are no specific design requirements in a schedule or overlays.
I consider the local policy framework strongly encourages robust built form in the Ormond NAC. It is one of the preferred locations in Glen Eira for higher density housing that can contribute to broad housing diversity objectives. This necessarily means buildings in these areas would be taller, with greater massing and bulk than the prevailing lower density single dwellings.
I have noted above that clause 32.04-6 specifically excludes standard B20 as one of the clause 55 amenity tests to be met. I accept it must be considered as part of the overall assessment. I consider this specific exclusion was intended to convey an expectation that the bulk and massing of a building in a Mixed Use Zone could be somewhat more robust and intensive than might be acceptable in the other residential zones. This is to facilitate more intensive buildings in this zone, including commercial and industrial buildings that typically have higher floor to ceiling heights relative to residential buildings.
Finally, there is no objective or statutory basis in the scheme for the 9 and 18 metre setbacks required by Council. These setbacks are not based on any standards of clause 55. They are not derived from local policy, a schedule to the zone, a design and development overlay or an adopted urban design framework or local policy. Furthermore I note that the rear of other nearby 3 and 4 storey apartment buildings have not been required to have setbacks similar to the ones proposed in this review. I consider the setbacks are arbitrary, subjective and excessive requirements.
Glen Eira Debates 
August 20, 2015 at 6:09 PM
This is bloody depressing for two reasons – showing up the planning scheme for what it is and then showing up the quality of planning officers and dumb councillors. Staggering that nobody picks up why conditions are contradictions. The community is not getting its money worth in any shape or form and the buck stops with Newton.
August 20, 2015 at 8:42 PM
We are governed by a room full of heartless and insincere people. Both elected an unelected.
August 20, 2015 at 9:08 PM
Vcat is awful. Council is worse because they make it so easy for Vcat to knock back their decisions and councillors sit back and let this go on and on year after year. There is no protection for homeowners anywhere in Glen Eira and even if it gets to Vcat the way these things are written is plain dumb and careless. The must think that anything will do and don’t give a stuff. Someone like councillors should tell them that its peoples lives that are being affected and if they can’t do their jobs in a professional and proper way they should be sacked.
August 20, 2015 at 10:21 PM
“do they even bother to read, analyse and assess VCAT decisions?”
Granted that vcat is arbitrary and much depends on the individual member. That in itself is not enough to pardon the consistent errors and attempts to force something through that has repeatedly been rejected by vcat. Thus, the above sentence from the post is valid. When council’s position is full of errors, contradictions, and claims that are not borne out with clearcut evidence, then I’m not surprised that developers win so often. Which gives birth to another consideration – where is corporate memory in all of this? or is the planning department playing russian roulette and hoping that at least once they might succeed? When council arguments have been rejected countless times then surely that has to be taken into account and a better strategy introduced.
What I think happens is that when faced with a vcat appeal there is nothing more than going through the motions. If council has already granted the permit, then chances are vcat will also grant it. If faced with mere objectors appealing then it is hardly worth putting in a major effort. Since the end game is the desire for more and more development, brilliant performances at vcat would seriously undermine such objectives.
August 21, 2015 at 7:31 AM
anyone know what happened with VCAT appeals over MRC casino?
August 21, 2015 at 10:58 AM
The Glen Eira Planning Scheme is woeful, and VCAT ruthlessly exploits every weakness of our “performance”-based system to do what it wants regardless of policy. There are serious problems in both noxious institutions. A competent council would be continuously improving its Scheme and policies in the wake of every adverse decision from VCAT. It will take a decade or longer to ameliorate the damage of the Newton/Akehurst years.
I don’t agree however that the extracts from VCAT decisions above are all faults of Council. It’s a bit more complicated than that. VCAT is free to make whatever decision it likes except where something is specifically prohibited. Policy is irrelevant. Our scheme has policies that VCAT ignores. Indeed VCAT gave the game away when it mentioned that it was seeking to maximise the number of dwellings that could be squeezed into the already generous building envelope Council provided. Council will have a major social problem on its hands if this lassez-faire attitude to planning was applied to all land currently zoned GRZ/RGZ/MUZ/C1Z.
Elliot Avenue violates multiple policies and some amenity standards. Policies and standards carry no weight at VCAT unless they support the decision the Member wants to make. VCAT can’t work out whether it believes its decisions should be consistent, or whether it should be on the unspecified “merits” of each individual site and application. Nearby setbacks and what somebody gulled out of a different Member aren’t relevant decision criteria. In practice, the “decision guidelines” provide no guidance.
Re Bent St, the Member clearly screwed up. One of the purposes of GRZ is to “encourage development that respects the neighbourhood character of the area”. Council documented its preferred neighbourhood character for Housing Diversity when it introduced the [deeply flawed] C25. The VCAT decision in effect replaced Council policy with its own, something that Greg Garde ludicrously denied VCAT does in a 2012 interview.
Even the decision about axing a permit condition to require people to be informed of a note that they will not be eligible for parking permits contradicts past VCAT practice. If you search, you can find VCAT imposing on applicants an obligation to provide detailed information about public transport options to future residents.
The disputed condition concerning car parking accessway and compliance with 52.06 is deeply troubling. The building industry is notoriously corrupt or reckless or incompetent. Building surveyors are part of this mess as recent spectacular events have shown. Few developments comply absolutely with their Permits. When something is built that doesn’t comply, there is a risk of “enforcement” action being taken, which involves getting a retrospective Permit amendment to render a development kosher. VCAT has a history of waiving compliance with the standards contained in 52.06 retrospectively. Requiring basement and ramp to comply with standards and detecting non-compliance at an early stage is an obvious, appropriate, response to the corruption plaguing the industry and the recklessness with which VCAT condones this behaviour.