Congratulations to those residents who objected, and put in the necessary time and resources to the 6-8 Bevis Street, Bentleigh East development application. VCAT confirmed council’s rejection of the application and no permit was granted. The member’s judgement however, where he summarised the verdicts of many other VCAT decisions, laid bare the mess that is the current planning scheme and how the zones have been (mis)applied by council.

In the end, the application was refused primarily because the developer was far too greedy and NOT because of the constraints that exist in the planning scheme. The ‘faults’ of the application were:

  • Unacceptable daylight to many habitable rooms due to snorkel windows.
  • Small habitable rooms, particularly bedrooms that would have dimensions less than three metres.
  • Living rooms with dimensions less than three metres, and meals areas located in corridors.
  • Balconies that are less than eight square metres as required by standard B28 of clause 55.05.
  • The secluded private open space of several dwellings, including the larger three bedroom dwellings would face south and have poor solar access.
  • The floor levels of some dwellings on the south side would be different to natural ground level, requiring steps that would reduce the open space areas, and the steps are not shown on the plans.
  • The dwelling entry should face Bevis Street as that is the address of the land, and the entry facing Filbert Street would cause confusion.
  • The extent of screening to habitable rooms would diminish their amenity.

What concerns us is the ‘lessons’ that must be taken from these decisions and remedied with a completely revamped planning scheme AND a total review of the zones. Unless the shortcomings,outlined below, are effectively addressed, then developers will still be successful in 99% of cases.

Here are the gaping holes as enunciated by the VCAT member and which have been a constant refrain for years and years –

The purposes of the GRZ are also to implement adopted neighbourhood character guidelines and to ensure that development respects the existing or preferred neighbourhood character.

The scheme provides limited guidance as to the height, scale and massing of development within the HDA’s.

Clause 22.07 does not specify a neighbourhood character for the HDAs in general or for particular HDAs, unlike clause 22.08 that includes a description of the character of each of the sixteen neighbourhoods that comprise the areas nominated for minimal change.

A range of dwelling types can be accommodated in the housing diversity areas, including apartment buildings.

With regard to the policies in clause 22.07 that encourage a transition in density and scale between the commercial core and a boundary with the NRZ, the Tribunal has found:

  • The height limit in the GRZ1 of 10.5 metres or three storeys is itself a transition between the taller heights that are generally allowed within the commercial areas and the two storey height limit that is applicable in the Neighbourhood Residential Zone.
  • The schedule to the zone does not vary the standard of clause 55 to require transition in height, built form or intensity. Schedule 2 to the GRZ that is applied at the interface of the GRZ and the NRZ only varies the setback to the rear boundary and does not reduce the allowable height in the NRZ.
  • Hence the need for transition within the housing diversity area is limited.
  • Proximity to a minimal change area (NRZ) does not diminish the strong policy support for more dwellings in the housing diversity areas. A street can provide an effective transition between three storey built form in the GRZ and two storey built form in the NRZ on the other side of the street.

The generality of the policy that encourages transition makes it of limited value to decision makers when considering specific development proposals.

I accept the level of public transport service is less than is available near Bentleigh and other train stations. Whilst limited, it is available and it is probably a better service than found in many fringe suburbs. The distance from Bentleigh train station is not a reason to constrain development in a nominated housing diversity area. If that had been an important consideration, in my view, the area would not have been identified in the scheme as an area where change is to be expected. It has been so nominated in the scheme and change should be expected in this area.

  • It was said that an apartment building is unsuitable in a local residential street. I am satisfied that an apartment building can be an appropriate housing form in Bevis Street and Filbert Street in a housing diversity area. I come to this finding for the following reasons.
  • Firstly there is no distinction in the GRZ, clause 55 or in clause 74 (Definitions) between a duplex, a townhouse or an apartment building. All are defined as dwellings. The scheme distinguishes other forms of accommodation (residential building, residential village, boarding house and others) but has deliberately decided not to distinguish between other types of dwellings. Clause 55 guides the development of a range of buildings up to four storeys in height, without distinguishing amongst housing types. Hence all dwellings must be considered to be appropriate within the GRZ.

Secondly, State and local policy strongly encourage the provision of a diversity of dwellings. Clause 21.04 and clause 22.07 use the terms “multi-unit housing” and residential development. Both terms are broad and refer to more than one dwelling on a lot. They do not limit or define the housing types that can implement the housing objective.

Clause 22.07 encourages a range of housing types comprising of a mix of single dwellings, two dwelling developments and other forms of multi-unit development. This clearly contemplates that a wide range of dwelling types can be appropriate in a housing diversity area

  • They (objectors) say the numeric density of this development is consistent with, or greater than apartment buildings being developed in Centre Road. Hence its appropriate location is on a main road, within or immediately adjacent to the commercial centre, rather than being in a local residential street.
  • I think that the reference to density in clause 22.07 has to be read in conjunction with the height, scale and mass of the building. The discretion that I have to exercise under the zone and the decision guidelines is in relation to the built form, not the number of dwellings. It is the height, setbacks, design, site coverage, ground level open space, landscaping and permeability of a proposed building(s) in its setting that determines whether it comprises an acceptable development. Density or the number and size of dwellings is an outcome or derivative of these design matters; that is, how large can a building envelope be? I do not consider density to be a decisive criteria in its own right, or more important than built form. Furthermore the scheme does not provide any guidance whether a particular dwelling density is acceptable while another density may be unacceptable. It does not distinguish any correlation between density and distance from a commercial zone or main road.

A further proposition that was put by the respondents that Glen Eira is meeting and exceeding its housing growth targets. This proposition is based on a letter from the Chief Executive Officer of the Council to Ms Wilson dated 17 October 2016. The letter advises that in the financial year 2015-2016, the City experienced a net increase of approximately 1900 dwellings. The respondents say this recent growth largely meets the City’s target in clause 21.04 of 6000 dwellings. Consequently they say there is no need to efficiently develop sites in the housing diversity areas.

While the information regarding the number of recent dwelling approvals is interesting, I give it little weight in this review. It does not assist the discretion I must exercise. I must apply the scheme as I find it. In my view there is no direction in the scheme that allow me to refuse a development proposal in a housing diversity area because a certain number of dwellings have been approved or constructed elsewhere in the municipality.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2017/153.html

Finally, just to add more salt to the wounds, VCAT granted a permit for a 7 storey building in Centre Road, Bentleigh – on the corner of the ruined Mavho Street. Councillors as per norm, lopped off a couple of storeys and a number of dwellings and granted a permit for 5 storeys and 19 apartments. The developer naturally went to VCAT and got his permit for 7 storeys. Once again, there are plenty of take home messages in the member’s decision –

  • the scheme provides no specific directions regarding the appropriate height of development in an urban village generally or Bentleigh in particular. There is no further guidance regarding preferred heights within precinct 2, even though it is a long ribbon strip with varying interfaces. There is remarkably little policy guidance in this matter beyond very general policy support for the urban villages to do the heavy lifting in meeting Glen Eira’s housing aspirations. This generally means that taller mixed use buildings at higher densities than in other parts of the municipality are to be developed in these centres. Taller buildings can be contemplated in Bentleigh, but as noted in Kai Mou Pty v Glen Eira CC, beyond these general propositions, policy does not greatly assist us in forming a view about the acceptability of a particular proposal[5]. In that matter, the Tribunal undertook a contextual assessment.
  • Mr O’Leary advised that the Council has requested the Minister for Planning to prepare, adopt and approve Amendment C147 in accordance with section 20(4) of the Planning and Environment Act 1987. This amendment would impose a Design and Development Overlay in the Urban villages. It include a maximum mandatory height limit of 4 storeys. Mr O’Leary advised the DELWP has requested further information.
  • The Tribunal has found that no weight should be given to Amendment C147 because there is no certainty that the minister will agree to the council’s request or what form the amendment may ultimately take[6]. Consequently, its final form is highly uncertain at this time. I adopt this approach and give it no weight in this review.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2017/136.html

And the final insult to injury, is that once again a developer has taken council to VCAT due to the failure to determine an application for 8 storeys in Centre Road within the 60 day time limit.  This is now the third example in recent times!!!!!!

Unless the zones and the schedules are rewritten completely, we do not see much changing for the countless suburban streets caught up in the mess of Glen Eira’s planning. Concentrating exclusively on ‘shopping strips’ will do nothing to alleviate the over-development occurring in the kms zoned GRZ!