The latest VCAT decision features an application for 7 storeys in Hawthorn Road, Caulfield South. Next door to what is currently the Godfrey’s shop front. Both Council and VCAT refused the permit. However, the member’s comments as to why he refused the permit should provide some salutary lessons for our planning department. We can only hope that the lessons from this case and the recent one in McKinnon Road, McKinnon are being analysed fully. This has not been council’s practice. No document that we are aware of has ever looked at VCAT decisions and made recommendations on how to plug the holes in the planning scheme. Even the recent Planning Scheme Review failed to provide any sensible recommendations regarding VCAT decisions. Nothing was truly analysed, dissected, and reported upon. All we got were generalised comments on the respective zones and not a word about individual decisions and how council should respond to such decisions.

Both recent decisions, and particularly this latest Hawthorn Road one, have profound implications for our so-called neighbourhood centres. Council’s current planning scheme includes the ‘policy’ that centres such as Caulfield South, McKinnon, Ormond, East Bentleigh etc. are lower in the hierarchy compared to the Major Activity Centres (Bentleigh, Carnegie, Elsternwick) and therefore should not be exposed to the same intensity of development compared to these major activity centres.

Planning for our neighbourhood centres has basically been non-existent. Yet large swathes of these suburbs are zoned GRZ. For example, over 40% of residentially zoned land in Ormond is zoned GRZ. All council has produced is a document which, in part, is euphemistically labelled ‘Activity Centre Framework’- replete with such jargon as ‘moderate focus’ on development, or ‘major focus’ on housing growth. Apart from the upgrading of South Caulfield and East Bentleigh there is little to differentiate McKinnon from Ormond, Ripponlea from Gardenvale and so forth.

This is vitally important given these two recent VCAT decisions for the simple reason that council CANNOT afford to continue ignoring these centres. Nor can they continue to treat them as identical and assume that the same planning controls (ie a one size fits all approach) will suffice. Both VCAT decisions make it abundantly clear that NO OVERARCHING POLICY WILL BE ENOUGH. That each centre requires its own, individual structure plan and mandatory controls. Thus, until council gets its act together, developers can continue to have a field day.

Council will undoubtedly pat itself on the back for the Hawthorn Road decision. Let’s not get too excited about the efficacy of the current planning controls. For starters the application was incredibly deficient. Five apartments were to be significantly BELOW GROUND LEVEL – suitable for moles and not humans! The following sections in italics are verbatim quotes from the judgement.

Due to the slope of the site, these largely sit below natural ground level……This identifies that the natural ground level sits close to the height of the ground floor ceiling at the rear of the building with a 2.5 metre setback from the rear boundary.

Next, neighbours with tiny back yards at the rear and zoned General Residential (ie 3 storeys) were facing the prospect of a huge wall – well beyond acceptable lengths

we find the most impacted site is 34a Cedar Street. This property has a small rear yard that is roughly 10 metres deep and 5.5 metres wide. It sits centrally to the rear boundary of the review site. As such the outlook from this rear yard will be dominated by a view to whatever is built on the combined four lots that comprise the review site.

From this central point, the view will be of a 17 metre wide building form. Due to the slope in the land, there is a 2.5 metre cut at the rear of the proposed building to accommodate the ground floor. This results in an apparent wall height of 4.5 metres from the adjoining rear yard.

There were plenty of other deficiencies in this application. But the most important aspect of both this decision and the McKinnon Road decision where the developer got his 6 storeys is the clear message that each neighbourhood centre MUST be viewed in isolation – as a unique entity with its own height limits, setbacks, etc. Thus far council has not provided any indication that this is on the cards. Bayside and other councils in the meantime have been able to produce different structure plans for their neighbourhood centres. They have not taken the easy way out and produced a ‘one size fits all’ set of planning controls. Whether council has the expertise, the will, and the foresight to produce similar work remains to be seen. If they don’t, then we can kiss goodbye to our smaller centres. They will each become home to high rise development.

Please note the following comments from this last decision. Nothing could be clearer for council. But are they listening?

In the case before us, much of the council submission is simply that the proposed building is too tall. This argument appears to be predicated on a principle that, as a neighbourhood activity centre, this location should support no more than four or five storeys, because larger ‘urban village’ centres are the locations for more intense buildings.

The council has adopted structure plans for the urban villages in February 2018 and recommend building of up to 8 – 12 storeys in Carnegie and Elsternwick, and 4 – 5 storeys in Bentleigh. Mr English (for council) contended that these structure plans give context to the council’s desire to diminish heights from higher to lower order centres. It contends that therefore the building on this site should be lower. We, however, share the findings of other divisions of the tribunal that:

  1. It is not appropriate to adopt a blanket position that a specific maximum height be attained because of controls introduced in other locations[2].
  1. Little weight should be given to recently approved planning scheme amendments that limit the heights of development in parts of Bentleigh and Carnegie for land outside these centres[3]. We add to this that the council adopted policies for these centres, and Elsternwick in 2018, are not necessarily relevant to consideration of a site in Caulfield South. This is because the design analysis has been undertaken for the specific considerations of those centres, not the area of our consideration.
  1. There is nothing in the planning scheme to indicate that a uniform height is sought for buildings in this centre[4], or any other neighbourhood centre.

While higher order centres have adopted council policies nominating particular heights, it does not necessarily follow that all development in other, lower order centres, must be lower. A more considered urban design assessment is required.

…. an accepted height, (or height restriction) in one centre cannot be simply transferred to another. We say this for the same reasons that we reject the council proposition that building on this site must be proportionally lower than height it has accepted for higher order centres such as Bentleigh and Carnegie. Just because six and seven storeys were approved in one neighbourhood activity centre it does not therefore mean seven storeys is an acceptable height for this site. A specific analysis of the proposed design against its immediate context needs to occur.