The image presents the location (in yellow) of an application that was recently decided by VCAT. The developer got his 3 storeys and 21 dwellings. Council had refused the original application and they were still opposing amended plans that the developer submitted. This VCAT decision, like so many others, deserves highlighting because:
- The entire area is zoned General Residential 1 (GRZ1) which means 3 storeys – yet council stupidly & unbelievably argued that only ONE SIDE OF THE STREET IS SUITABLE FOR 3 STOREYS!
- The application met all of the following ‘standards’ – height; permeability; set backs; site coverage
- It was a ‘consolidated’ lot size of over 1400 square metres – ‘encouraged’ by the planning scheme
- Traffic and parking were deemed acceptable by Council
- The ‘consultant’ arguments were diametrically opposed to what the Traffic department has said!
This leads to the central and most important questions:
- Why has council wasted ratepayers’ money in going to VCAT?
- What’s the point of hiring expensive ‘consultants’ (tender in September 2012 was for $90,000 per annum) when they are totally hamstrung by the ineptitude of the planning scheme?
- How much more money has to be wasted before Council stops blaming everyone else and starts doing what it hasn’t done for 14 years – fixing up the planning scheme?
The VCAT member was clearly unimpressed. Here’s some of the judgement –
…the local policy regarding the residential areas of neighbourhood centres expressly encourages the consolidation of sites to promote development opportunities. Thirdly, the maximum height of 10.1m (excluding the lift overrun) of the proposed building is less than the 10.5m maximum building height….
Mr O’Leary (for Council) submitted that the eastern side of Station Avenue principally comprises single and double storey detached dwellings, with some recent two storey contemporary developments. He advised that the Council sees the eastern side of the street as unsuitable for three storey development.
Mr O’Leary correctly highlighted that the purpose of the GRZ includes ‘To encourage development that respects the neighbourhood character of the area’. However, the purpose does not refer to respecting the existing character and in this instance there is no neighbourhood character policy or statement of preferred character. The purpose of the GRZ must be read with reference to the policy regarding housing diversity areas.
The Housing Diversity Area Policy is not about respecting the existing neighbourhood character. There is no preferred neighbourhood character nominated for such areas.
I agree with Mr Bromley (for developer) that it is not self-evident that a two storey development would be more appropriate, as suggested by the Council’s Urban Designer. Rather, the general residential zoning, the central location within the neighbourhood centre and the consolidated site suggests that the height should not be restricted to the two storey scale that is allowed in a NRZ.
Furthermore this is not a case where there is any issue of a suitable transition to land in a NRZ. The subject land is central to the neighbourhood centre, close to the commercial heart and not near land in a NRZ.
There is no basis for distinguishing between the eastern and western sides of Station Avenue, at least in terms of the streetscape. They have the same planning controls. As I have already noted, the ‘consolidation of sites to promote development opportunities’ is specifically encouraged for the residential areas of neighbourhood centres.
There is also clear compliance with ResCode Standard B 20 (North-facing windows). To the east, there would be some additional overshadowing in the afternoon, but well within ResCode Standard 21 (Overshadowing open space).
With respect to visual bulk, there are no proposed walls on the boundaries and there is easy compliance with ResCode Standard B17 (Side and rear setbacks), especially at the upper level. The rear part of the building is cut into the land, so that the maximum height at the rear is 8.8-9.3m.
Regarding the statutory requirement for car parking, as set out in clause 52.06, the proposal provides the full complement of spaces for residents but only three spaces, instead of four, for visitors. ..In response to referral of the application, the Council’s traffic engineers accepted the reduction of visitor car spaces. However, Mr O’Leary submitted that there should be four spaces, arguing that the area is already under pressure for on-street parking due to various factors, including commuter and employee parking.
The Council’s traffic engineers have not raised any issues about the traffic implications of the proposal. The traffic report accompanying the application concluded that ‘the site traffic and access location is expected to have minimal impact on the function and safety of the surrounding road network’.
Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/305.html
Glen Eira Debates 
March 6, 2016 at 10:46 AM
Coming hot on the heels of the Vickery Street, Bentleigh, debacle (when Council fronted VCAT with the argument that a 4 story development proposal should be refused because it located in General Residential (3 story) Zone only to have VCAT point out that the applicable zone was Residential Growth (4 stories allowed)), it appears the Administration and Councillors are addicted to getting egg all overthemselves..
Honest to god, what the hell does this tell you about the quality of planning in Glen Eira!!!!!
March 6, 2016 at 10:50 AM
This annoys me intensely. I cannot fathom or excuse the complete incompetence of the planning department. Arguing that one side of a street should be two storeys when the entire area is zoned for three is mind boggling. Which “professional” came up with this idea and he or she should be sacked at once. Adding salt to the wounds there is the poor consultant having to stand up and contradict what the traffic department thought was good planning. All in all a total cock up. Either the right hand doesn’t know what the left is doing or the incompetence is so widespread that no one cares. After all it furthers the council agenda of blaming vcat for everything and the cost doesn’t come out of their pockets. Does anyone have any idea of how much this might have ended up costing?
March 6, 2016 at 11:01 AM
“Poor consultant” indeed!!!!!. Just took the money and ran, not one ounce of verification of the Council provided script.
The quality of Council’s planning analysis and selection of consultants is jaw-droppingly-appalling. It’s a display of total incompetence on the part of the GE’s planning department, the Administration and the numbskulls known as Councillors.
March 6, 2016 at 10:54 AM
What’s the bet this one doesn’t make it onto the list of examples, submitted by Council to the Minister for Planning, where VCAT have overturned a Council decision and in doing so have ignored the Glen Eira’s Planning Scheme.
Clearly, in this instance, those who have done the ignoring are those who supposedly (according to Lipshutz and Hyams) know best.
March 6, 2016 at 11:13 AM
I think this decision should make it on that list.
Council should particularly emphasize, to the Minister, VCAT’s overturning of Council’s parking analysis. Council says no problem, VCAT says there is a problem (“the area is already under pressure for on-street parking”) and orders compliance with the standard parking rates.
March 6, 2016 at 12:19 PM
Note: visitor car parking permit was for 3 spaces only.
March 6, 2016 at 1:34 PM
Wonder how Hyams and Lipshutz are going to offload the blame to Oscar
March 6, 2016 at 3:13 PM
I’m on a hiding to nothing with this comment but regardless of the rights and wrongs of this case, and I agree with the post, it needs highlighting that VCAT’s consistent rulings that the height policy mean x stories should automatically be allowed on any block in the appropriate block are flawed.
It’s clearly not meant to be a blanket policy covering every single site in a given zone and can reasonably be interpreted as such. It’s absolutely not a one size fits all policy and council are right to use this argument in some instances (not in this case).
As well as interpretation of the wording (i.e. does maximum mean automatically allowable) there are other aspects of the clause requiring appropriate gradients from neighbouring properties and suchlike to be met.
The schedule of maximum heights is directly linked to the clause in planning policy which has these other requirements and therefore all aspects of the clause should be applied in every case. VCAT consistently ignore this.
March 6, 2016 at 5:01 PM
FYI here is a list of what is happening now in Station Avenue –
9 Station Avenue MCKINNON VIC 3204 – 9 x 3 storeys
10-12 Station Avenue MCKINNON VIC 3204 – 3 storeys 21 dwellings (permit)
22 Station Avenue MCKINNON VIC 3204 – 7 lot subdivision
24 Station Avenue MCKINNON VIC 3204 – 3 storeys 7 dwellings (permit)
28 Station Avenue MCKINNON VIC 3204 – 3 lot subdivision
Most are on the east side (even numbers) of the street. Both Council and VCAT use ‘precedents’ for granting a permit. Three storeys is the ‘default’ in GRZ and 4 storeys is the ‘default’ in RGZ.
The task of any competent council is to keep a running log of all VCAT decisions which pinpoint precisely the areas where VCAT has allegedly ‘ignored’ council policy. We have never seen one single document which examines council’s performance at VCAT and, most significantly, WHY council decisions are overturned. No data has ever been published (in contrast to other council’s planning scheme reviews) that highlight the reasons why VCAT overturns so many council decisions. Is it poor wording? Is it lack of existing policy? Is it poor representation at VCAT? and what will council do about all of these ‘gaps’?
The so called Planning Scheme review of 2010 was a disgrace. In its ‘analysis’ of VCAT there was only this (minutes of 10th August 2010) –
As a general rule, Glen Eira has little difficulty defending local policy at VCAT, which is a good indication that the underlying philosophy of policies is sound. However, recent decisions highlight the following changes should be made:
Include the draft heritage guidelines in the scheme as reference documents to strengthen them;
Provide prescriptive guidance for ‘transition areas’;
Use a Neighbourhood Character Overlay in lieu of the existing Significant Character statements in the Minimal Change Area Policy as the current use of policy is considered to be the incorrect tool to better protect areas of significant character; and
Review the Commercial Centres Policy.
Council’s main issue with VCAT is that it is only required to ‘consider’ policy but does not have to ‘apply’ it. This is not merely a Glen Eira issue. The Planning and Environment Act should be amended to ensure that VCAT must implement policy, not merely ‘consider’ it when reviewing a planning application.
Fine that VCAT has only to ‘consider’ – but when the policies don’t even exist, then there is nothing to consider! In 6 years all council has achieved from the above list is:
1. removing the commercial centres policy from the PS
2. no new draft for heritage guidelines
3. no real ‘transition areas’ (the proposed draft amendment ) never got another look in. Note that setbacks for GRZ2 are NOT ‘transition buffers’.
4. Another handful of streets added to Significant Character Overlays that were chosen by officers and with no ability of ‘recommending’ areas by residents or councillors!
The best of all however is this sentence from page 8 – “Council’s Development Contribution Plan Overlay has expired. Both the Overlay and
any information relating to it within the LPPF should be removed from the scheme.” Not one word of justification; not one scrap of data to support this recommendation – but it got through!
Then there’s this other gem – which VCAT has used wonderfully on several occasions – “Part of the Urban Villages Policy that relates to Carnegie contains a sunset clause that has expired. This has resulted in a ‘policy vacuum’ for Precinct 1 of the Carnegie Urban Village. This expired policy statement should be removed from the scheme and new policy relating to this area of the urban village be developed”.
Thus 6 years down the track nothing of any real value has been attempted or achieved to improve the planning scheme. It has all been ‘steady as she goes’ from 2002. That is unacceptable and either lazy or incompetent planning – especially in the face of the rampant development that is now occurring throughout all of Glen Eira.
March 6, 2016 at 3:38 PM
Typical VCATese. Two balls-ups don’t make a right, they just make for an even bigger balls-up. While the Member’s reasoning is flawed, there is a chance they stumbled onto the correct outcome. It’s not a good look when a VCAT member relies upon an unpopular decision by a government that subsequently was removed from office. Has VCAT ever respected democracy?
I certainly disagree with the Member introducing an irrelevance about “preferred character”. That is NOT a purpose of the zone. Respecting neighbourhood character clearly refers to the character that is there. Big balls-up. She should have invoked “implement neighbourhood character policy and adopted neighbourhood character guidelines” when criticizing Council’s Scheme, but that’s just one of several, possibly incompatible, purposes.
The Member did agree the proposal didn’t comply with ResCode but was rather dismissive about the non-compliance. Once again we have evidence that standards aren’t standards. She wasn’t all that convinced of the merits of the “alternative design solutions” being proposed but went along with them. [Refusing to comply is considered an alternative design solution.]
Member accepted without critical analysis the views of Council’s traffic engineers. These are the same people who write such gems as “Reason why site inspection unnecessary: unnecessary”. I cannot recall any advice from Council’s traffic engineers anywhere in the municipality where they considered traffic to be a problem. It’s always the same meaningless “the local roads can cope” garbage. Claiming every development makes negligible contribution is unprofessional. The cumulative impact is far from negligible.
In 2010 Council explicitly rejected the idea of having neighbourhood character statements and structure plans despite the community asking for them. Council hasn’t reviewed that decision since, and I’ve lost count of the number of times VCAT has criticized them for it.
March 6, 2016 at 3:50 PM
Re: Parking waivers. Despite banging on about the expected pattern of future development in relation to building form, when it comes to reducing parking spaces VCAT consistently allow it with complete disregard for future development putting even more pressure on parking. Not once have I seen this taken into account. This needs arguing by council each and every time the issue arises. Even just one space can have a big impact on the possible scale of each development due to site constraints
March 7, 2016 at 7:20 AM
Actually Ak, in most cases that go to VCAT, and as per the above example, Council has already approved the parking waiver.
It’s Council’s job to address the cumulative impact of all these individual waivers and to put in place Parking Precinct Plans, Parking Overlays and timed parking restrictions that are actually enforced. So far Council hasn’t chosen to do so and is showing no sign of ever doing so.
March 7, 2016 at 12:32 PM
Been to VCAT about the 9 storey on the old Broadbent’s site. Ditto to all of the above.
March 7, 2016 at 5:49 PM
Read this a minute ago – http://www.theage.com.au/victoria/sky-rail-on-a-high-as-transport-groups-back-elevated-rail-plan-20160307-gnccpt.html
March 7, 2016 at 9:46 PM
Some pretty ignorant comments there, especially the person who thought “most of the area is zones [sic] for three story development”. What do people believe Standard B17 should specify, and what variations should be specified in each of the Schedules for 32.07, 32.08, 32.09? Can anybody remember ever being asked?
March 8, 2016 at 8:54 AM
The idea that Council’s designation of the zones and their boundaries means that “most of the area” is suitable for multiple unit development in accordance with the zone’s maximum height limit and set back requirements does not reflect ignorance.
Rather, it recognises that well known human condition of “going for the max” (particularly when $’s are involved) and also that Council’s abject failure to introduce separate zone schedules (other than the three related to set backs only) or overlays reflects active encouragement of that condition.
If this is not Council’s position, why has Council persistently denied residents any input at either a high level (B17: over arching goals/requirements of the zone) or the lower levels (specific goals/requirements by zone sub-area: 32.07-.09)?
March 8, 2016 at 4:00 PM
I thought the comment from “Better on a bike” was ignorant because it failed to consider just how many single dwellings abut the rail corridor, especially in the problematic narrow parts, while ignoring the number of units already present and completely overlooking [!] that units also have residential amenity standards in the Scheme which LXRA proposes to violate. LXRA doesn’t know what heights and setbacks it is proposing for my area, and doesn’t know what the minimum setbacks should be if it was to comply with B17. They couldn’t say whether they had even discussed the issue with the Planning Minister or GECC.
March 9, 2016 at 7:47 AM
It is extremely difficult to get information out of LXRA. My latest attempt was to find out how many properties they were proposing to compulsorily acquire and where they were located. For an organisation that alleges it has a plan and will sign contracts by end of March, they didn’t know or wouldn’t say. Anybody who applies for a Planning Permit in Glen Eira is expected to supply detailed plans and related information in support of their application. Government shouldn’t be exempt.
March 8, 2016 at 8:26 AM
That Council went VCAT and argued that the development was out of character for the GRZ for two lots for that section on one side of the street is the height of hypocrisy and very poor political games man ship.
Ever since the 2003 implementation of the Housing Diversity (aka High Density)/Minimal Change Area policy, residents have been clamouring for changes to the Planning Scheme (such as the inclusion of Neighbourhood Character and Design Development Overlays) to ensure that some residential amenity/character was retained and that swathes of the higher density areas did not become streets of high rise structures offering little amenity/character for future residents. Council did nothing. The 2013 zone implementation, as per the infamous “direct and neutral translation” Hyams quote, merely formalised the maximum height limit allowable and did nothing for residential amenity/character (current or future).
Consistently, since 2003, Council has fronted VCAT and argued that it “prefers to let the character of the emerge” (thereby reducing the significance of grounds for objection based on visual bulk, overshadowing, overlooking). Council is still not interested in introducing such overlays nor is it interested in using Zone schedules as an alternative (the one size fits all mentality prevails).
So now, in an election year, Council goes to VCAT arguing the significance of Neighbourhood Character in high density areas when its own planning scheme advocates lot consolidation and emerging character (ie. most financially viable lot usage within the height constraint) for these areas
Blatant hypocrisy, poor political game playing and a double whammy for residents who not only have to listen to, and live with the end result of, this crap but also have to fund it.
March 8, 2016 at 1:00 PM
Although VCAT and Council both widely use the expression “emerging character” to justify their decisions, “emerging character” is not part of the decision criteria. In fact, nowhere in the planning scheme is there any reference to “emerging character”. Use of the expression is a tell-tale sign that somebody hasn’t read the Scheme, and when it is a decision-maker, that they are unfit for the job.