In the regular VCAT Watch there is one report on the decision for 219-229 Balaclava Road, Caulfield North.  Readers will remember that this was originally an application for 9 storeys and then amended to 7 storeys. Councillors voted for a permit for 5 storeys and the developer appealed this condition. A permit was granted for 7 storeys. (See: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2021/867.html for the full decision).

Not only does this decision have major ramifications for all of our neighbourhood centres, it also raises questions about:

  • The level of ‘representation’ that council produces before VCAT
  • The ‘cherry picking’ aspects of the VCAT Watch reports
  • The failure to provide detailed ‘refusal’ grounds that will stand up – which of course raises the question of who writes these ‘refusals’ and are they deliberately destined for ‘failure’?
  • The uselessness of council’s much vaunted City Plan
  • The continued inability to get anything of value into the Planning Scheme after nearly 6 years!
  • Raises questions about when anything is likely to be done about the rest of our neighbourhood centres such as Ormond, McKinnon, Patterson, Gardenvale, etc.

Whilst some of the following comments from the VCAT member who made the decision are laughable, this still does not excuse council’s lack of timely strategic planning and the performance of its VCAT representative. As it currently stands, our Planning Scheme has enough holes for developers to drive a truck through. This has been the case for the past decade at least.

Please read the following carefully:

In the absence of specific height controls that have been adopted into the Glen Eira Planning Scheme, or which can otherwise be said to be seriously entertained, an attempt to apply a uniform height limit to a number of neighbourhood centres based purely on their position in a hierarchy, is not the appropriate approach.

The final key component of the relevant strategic context is the recent strategic work being undertaken by the Glen EiraCity Council to introduce built form controls, that will provide greater guidance for decision makers, such as myself. This strategic work includes the Glen EiraCity Plan, February 2020 and a Built Form Framework for the Caulfield Park Neighbourhood Activity Centre, both of which I am told identify the review site as being suitable for a five storey development. However, the Council also submits, at paragraphs 83 and 85 of its written submissions, that it does not place any weight on either of these documents, for the purposes of informing my decision making regarding an appropriate building height for the review site in this proceeding. That is due to the very early stages of the creation of both documents and their potential future insertion into the Glen EiraPlanning Scheme, as well as the absence of a built form analysis from the Glen Eira City Plan. I have no reason to depart from the Council’s submissions in this proceeding, that no weight should be placed on either of these documents.

The removal of the very top level (level 6) will have a very negligible impact on views from the surrounding context, and indeed will have no impact on the extent of scale that will be visible from many parts of the surrounding public realm, due to the extent to which the top level is recessed from the level below, and thus obscured from view. The removal of level 5 will produce a slightly lower setback tower form, but will not significantly change the extent of scale or prominence of the overall building. The Council has failed to persuade me that the slightly reduced scale achieved by deleting levels 5 and 6 will produce any appreciable or necessary relief from building scale, in this activity centre context.

That this proposed building on the review site will be taller than other buildings that can currently be viewed from Caulfield Park does not make the proposed height inappropriate. Rather, it simply reinforces the proximity that this component of Caulfield Park has to an activity centre. Any user of Caulfield Park that wishes to experience a more pleasant environment has many options to move away from this direct interface with the activity centre, to locations where views to the proposed building on the review site will be difficult owing to the intervention of canopy trees. On this basis I consider that the proposed development will not have an unreasonable built form impact or presence on the adjacent Caulfield Park.

While the Council has a section in their written submissions headed ‘off-site amenity impacts’ the written submissions fail to identify any potential impacts, nor any surrounding land that might be impacted. Further, in response to my questions, Mr Berzins failed to identify any potential amenity impact on any adjacent property.

In respect of each of these matters, I accept and adopt the evidence of Mr Bastone and Mr Blades, that the proposed levels five and six do not result in any unreasonable off-site amenity impacts, and provide an appropriate level of internal amenity for future residents. In respect of the relevant internal amenity considerations, the apartments on levels 5 and 6 would provide similar, if not higher, internal amenity outcomes for future residents, as compared to the apartments approved on the lower levels of the proposed building. That is, there is nothing in the design of the apartments on levels 5 & 6 that cause them to be singled out for criticism, on the basis of the relevant internal amenity considerations. On this basis I must conclude that an internal amenity assessment cannot be a reason for the contested permit condition.