Australian Postal Corporation v Darebin CC [2005] VCAT 1454

Australian Postal Corporation v Darebin CC [2005] VCAT 1454 - VCAT 2005 case summary — Zoe

[41]

19 In relation to west-facing bedroom windows at levels 1 and 2, Mr Growcott's evidence was that AS2107 could be achieved with windows closed and well sealed. Through the resumed Hearing this was clarified to mean that the windows would be openable but when closed with good seals a level of 30LeqdB(A) would be achieved based on nominated glazing types. That would meet AS2107 and forced ventilation would need to be provided to these bedrooms. With the windows open, AS2107 would not be met. Ms Hui addressed the same point by specifying that bedroom windows would need to be unopenable for AS2107 to be met.

20 We have difficulty accepting that the amenity outcome is reasonable for this number of potentially affected occupants as it gives no option for a window to be open at night should a resident so desire. We think that option should be available and it can be achieved by adding an openable window facing into the balcony of the same unit. Such a window could be a "slot" form that is slim and elongated or alternatively placed at a high level to ensure that sufficient wall space is retained to the bedroom. These openable windows would have protection given their orientation as well as the balcony treatments that we have discussed above. We believe on the evidence that such a solution should be able to comply with AS2107.

21 We do not consider this type of change to the plans should cause a real or significant detriment to an occupant or fail to be "just and fair". Hence, a condition can be drafted to provide options to achieve this end, bearing in mind that additional window forms could be discussed with the purchasers to ascertain their preference. That would affect 10 units at the first and second levels. Unit 1.03 has this same option and also for a new window to be inserted in the southern elevation.

22 At the third and fourth levels, two units would have no option for a non-west-facing window, being the two bedrooms to each of Units 3.08 and 4.08. The latter has the option of an openable skylight or the like and that same alternative could always be contemplated for Units 404, 405 and 406. Unit 308 has no solution that is obvious to us without more substantial changes to the layout and it seems that it would require non-openable windows to be compliant with AS2107.

[42]

23 We next refer to the question of an acoustic barrier on the Mail Centre land and SEPPN-1. In our interim decision, we made comment on the desirability for an acoustic barrier even if the standards of AS2107 could be met. That was on the basis that the evidence before us was that the Mail Centre would breach SEPPN-1 if the units in the form proposed were erected even with attenuation works to the units being implemented. That remains the case in relation to some aspects of the development.

24 At the resumed Hearing, Mr Gobbo stated that APC had not determined if it would seek for a barrier to be erected although it should be APC's choice as to whether it would proceed. Mr Pitt responded that APC has had long enough to decide whether it would want a barrier and has not indicated that it would undertake ameliorative works. Thus M1 Preston would seek the Tribunal's permission pursuant to Section 114(3) of the Victorian Civil and Administrative Tribunal Act 1998 to withdraw its open offer dated 7 March 2005. That offer was $200,000 plus GST. Costs of acoustic barriers can vary widely but the evidence before us was that a single wall with raked upper section may cost around $200,000 but possibly be higher.

25 We are not persuaded to grant leave for the open offer to be withdrawn.

26 We find that an acoustic barrier on the APC land is warranted to assist to achieve a reasonable noise environment for occupants of the proposed dwellings. Although bedrooms may be AS2107 compliant with west-facing bedroom windows closed the same is not the case if such a window was to be opened. There is also the likelihood that the achievement of AS2107 will be to levels at the upper end of the available range, ie. at the "maximum" level rather than the "satisfactory" level potentially still giving rise to nuisance as noted in Mr Burton's evidence. Moreover, SEPPN-1 would not be met even with some of the changes to the plans we have discussed above and further the introduction of an acoustic barrier would assist to achieve compliance for external balconies that we have not canvassed above. We therefore consider there to be a just and fair basis to require the permit holder to facilitate APC being compliant with SEPPN-1 given the imposition of a large residential complex into an otherwise predominantly (but not wholly) non-residential setting.

27 That is despite a barrier causing some disadvantage to APC.

28 It could fairly be asked why direct changes to the plans if an acoustic barrier is to be erected? Because we have no guarantee that a barrier will be erected as no consent to such works on APC land has been given by APC. We have no power to direct APC to give its consent.

29 We heard oral submissions from Mr Gobbo, Mt Pitt and Mr Evans as to whether a condition requiring the erection of a barrier would be lawful based on recent amendments through the Planning and Environment (Development Contributions) Act 2004 that address development contributions. Those amendments are important to a consideration as to whether a contribution can still be directed to be sought by way of a permit condition in the circumstances of this case. The amendments have been introduced since our interim decision. It was common ground between the parties that the relevant section is Section 62(5) of the Act that requires:

[48]

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There is no definition of "facility" in Section 4 of the Act however "facility" is defined in the Macquarie Dictionary as (inter alia) "a building or complex of buildings, designed for a specified purpose". "Building" is defined in the Act as including a structure. Using common language and the Act definition of "building" an acoustic barrier is a specified facility.

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"Necessary" is defined in the Macquarie Dictionary as (inter alia) "requisite" or "required". The acoustic barrier is necessary as one way in which APC would meet SEPPN-1. If SEPPN-1 must be met by law (that is in dispute between APC and the Respondents) then the works could be fairly regarded as "necessary", as the evidence before us is that the works that changes to the plans that we can require would not bring the Mail Centre into compliance with SEPPN-1. If APC is not required by law to comply with SEPPN-1, but seeks to as a company policy, then there is a case to argue that the works are not necessary; it is a matter of choice by APC. In our interim decision, we sought to be satisfied that AS2107 could potentially be achieved without a barrier on the Mail Centre land while also achieving an acceptable level of internal amenity by allowing windows to be opened. We have been substantially satisfied on this point subject to changes to window positions and modifications to balcony balustrades but not wholly so. We consequently find that it is necessary for an acoustic barrier to be erected on the Mail Centre land as a direct consequence of the residential development. Therefore, the second criterion is met.

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The whole cost of a "basic" acoustic barrier could be met by M1 Preston in line with the amount referred to in its offer of $200,000 plus GST. Thus we are satisfied that the second criterion is met. However, if APC sought a more expensive option, then a contribution could still be made as we are satisfied on the last criterion as discussed next.

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APC is a public authority for the purposes of the Act. Section 3 of the Act defines a "public authority" as including a body established for a public purpose by or under any Act. It thus applies to APC. Section 17(2) of the Interpretation of Legislation Act 1984 specifies that such a reference includes a reference to a Commonwealth Act and an Act or Ordinance of another State or of a Territory. Thus the final criterion is met should APC seek to fund a structure that is more expensive than the contribution the permit holder will be obliged to make.

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Australian Postal Corporation v Darebin CC [2005] VCAT 1454 (19 July 2005)

Parties