VCAT has handed down its decision on the 10-11 storey development of its hospital site. This long and complicated case involved much legal wrangling as to whether Independent Living Units (ILU) were ‘buildings’, etc. and what the current regulations and council’s planning scheme had to say about aged care and minimal change areas. In the end, the members decided that the height limits in various zones DO NOT APPLY to aged care or ILUs.
We’ve extracted some comments from the decision and if residents wish to read the full decision, it is available at http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/655.html (PS: THE DECISION HAS INEXPLICABLY DISAPPEARED FROM THE AUSTLII WEBSITE. WE HAVE NOTIFIED THEM REQUESTING THAT THE DOCUMENT BE REINSTATED/GLITCH FIXED ASAP).
- The ILU component constitutes a retirement village for the purposes of the planning scheme. It is neither a dwelling nor a residential building. It is not bound by mandatory height limits for dwellings in the NRZ.
- There is no maximum building height requirement imposed by the NRZ for a dwelling or residential building that is subject to the transitional provisions in Clause 32.09-14 (although the requirements of Clause 55 of still apply)
The Tribunal has assessed the change this proposal will present in its context and, for a hospital with co-located facilities consistent with policy, finds the outcome is acceptable. It finds that the built form is appropriately managed around the site’s perimeter. In considering whether the most contentious higher buildings are acceptable, it is relevant that the expert evidence for the Council is not substantially different to the expert evidence presented for the applicant and focuses on two levels of the tallest corner building.
- This means that the specific response to the question:
Does clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres? is “No”.
- Policy is not a requirement nor can it be applied as if it is mandatory:
- The Victoria Planning Provisions are predominantly performance-based. They specify the objective to be achieved and provide a degree of freedom as to how it is achieved.
- Extensive case law addresses the role of policy in planning schemes and makes the point that policy is not a mandatory requirement or control.
- Further, and consistent with Clause 20, Practice Note 59 addressing the role of mandatory provisions in schemes says:
A local planning policy is not a control. Local planning policies have a defined role to guide the exercise of discretion created by a zone, overlay or particular provision. Local planning policy cannot remove the discretion under the relevant planning control that triggers its consideration. Mandatory requirements cannot be included in local planning policy as to do so would remove the very discretion created by the planning provision. Hence mandatory requirements must be in a zone or overlay.
Policy for the minimal change areas also anticipates higher development yield than would normally apply in minimal change areas on key pre-existing development sites of more than 2,000m2. While local policy states that “Ensuring that any multi-unit residential development is consistent with the prevailing streetscape scale, especially along the perimeter of sites” it is silent about other forms of residential and non-residential development on sites of more than 2,000m2.
We conclude these reasons by balancing various policy considerations in favour of net community benefit. It is not our role to rewrite or dispute local policy. However, we observe that although the scheme acknowledges institutional land uses and the prospect of their expansion, it does not provide specific guidance about the future development of relatively large, historical, institutionally-used land. The policy in Clause 22.02 is to be applied as it relates to matters such as location, amenity and design. The policy does not distinguish between single lots contemplated for (say) a medical centre or child care centre and large and, (say) complex large institutions with multiple land uses. Local policy also does not acknowledge the subject land as a community facility on the map at Clause 21.09 but it is identified in the Framework Plan
Sixth, Clauses 21.08 and 22.10 adopt terminology that is not consistent. For example, Clause 21.08 references retirement villages in the context of being associated with medical uses/institutions yet other parts of local policy include retirement villages and residential aged care in the context of accommodation. We have endeavoured to reconcile differences in interpreting and understanding, holistically, what local policy is seeking to achieve.
- Neither State nor local policy support a proposition that the existing hospital site is unsuitable for growth or for new associated and related land uses. As indicated earlier, the reverse applies. Local policy recognises the location and expressly supports retirement village and medical uses co-locating here. That is in the knowledge that public transport options are more limited than in other parts of Glen Eira.
- Despite local policy encouraging co-location at smaller hospitals, it also states a preference for a location with better access to transport and other services. Better served locations are expressly preferred for some types of aged persons accommodation, particularly for the more independent categorisation. Minimal change areas are regarded as being less appropriate. However, Clause 22.10 states that “… on some pre-existing large sites, aged persons housing may be appropriate in Minimal Change Areas”.
- an increase in activity, in itself, is not a reason to refuse a permit. The suitability of the intensity of the proposal will be determined by an analysis of its impacts not by the numbers or site coverage per se. It is essential to assess the amenity and other impacts of the new uses and activities, such as traffic, parking and relationships with existing residential properties. The outcome of this assessment carries significant weight through Clause 32.09 and when applying local policy.
- We think it is noteworthy that the Council does not take issue with the overall extent of activity when it indicates that there would be scope to re-configure the ILUs to achieve the same yield.
The proposal sees demolition of all existing buildings, replacing them with a 10-11 storey (36.5 metres) built form at the north-east corner, linked to a seven to eight storey building along Saturn Street which serves as a central access to all services on the site and provides levels of ILUs above. To the east of this is a three to four storey building housing the specialist palliative and progressive neurological services. A series of three storey linked pavilions are proposed along Ludbrook Avenue housing the residential aged care facility. Between these and the higher built form to the north are two gardens for use by patients at the hospital and a large open space providing outlook from the residential aged care and the public access from Kooyong Road. We note that rooftop plant and equipment adds to the height.
It is open to the Council as planning authority to advance the inclusion of controls in the scheme for other hospital sites/medical precincts to guide their future development.
COMMENTS
Whilst this case highlights the many shortcomings in State planning, it also highlights the shortcomings in Council’s planning scheme. When we find that the planning scheme contains a reference document that is alluded to in this case, and that it dates back to 2002, (Glen Eira Housing and Redevelopment Strategy 2002) then something is drastically wrong. The failure over decades to consistently analyse VCAT decisions and to respond in some meaningful fashion has not been high on council’s priority list. Residents have paid the price and will continue to pay the price of shoddy, and incompetent planning!
Glen Eira Debates 