For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions. At the applicant's request costs are reserved.
[2]
Before the development starts, revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be substantially in accordance with the amended plans dated 13 February 2025 but modified to show to the satisfaction of the Responsible Authority:
[3]
(a) Potential overlooking from the balcony of Dwelling 4 to be reduced by the addition of screening perpendicular to the northern façade of the building, along the alignment of the party wall between Dwellings 4 & 5, to a depth of 1.0 metre from the northern wall of the building.
(b) Removal of gas meters and any reference to gas connection from the plans, in accordance with Condition 21.
(c) The positioning of all plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally. Such plant and equipment must be positioned to prevent unreasonable noise and visual impact and must not be on the roof or directly in front of neighbouring bedroom windows.
(d) The storage of rubbish bins in the rear corners of the respective garages, in locations that align with the areas where trees or columns are permitted in diagram 1 to Clause 52.06-9 of the Hobsons Bay Planning Scheme.
(e) A shared bin storage area or areas for the FOGO and recycling bins, that is not within the front setback area.
(f) A notation on the site plan stating that all stormwater infrastructure as required by condition 13 of this permit is to be located within the driveways and not in the areas set aside for landscaping unless with the written consent of the Responsible Authority.
(g) The landscape plan prepared by Habitat dated March 2025 to be revised to include:
A notation indicating a canopy tree must be a minimum 1.5 metres high at the time of planting.
A notation stating that all stormwater infrastructure as required by condition 13 of this permit is to be located within the driveways and not in the areas set aside for landscaping unless with the written consent of the Responsible Authority.
Nominate a Tree Protection Zone in accordance with the Tree Protection Plan as required under condition 7 of this permit.
(h) Details of the location of any communal service meters within the front setback. They must be located within an enclosure or cupboard with a maximum height of 1.2 metres and designed to achieve a high quality appearance and designed to present unreasonable visual impacts while still meeting the requirements of the relevant service authority. If located adjacent to the driveway the structure/s must comply with the requirements of Clause 52.06-9 of the Hobsons Bay Planning Scheme.
(i) In conjunction with the revised Sustainable Design Assessment required by Condition 8, the plans must be revised to show:
A notation that each dwelling's private open space area is to be provided with an external tap and floor waste.
Habitable room windows to be double glazed.
[4]
The development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority. Unless specified in a permit condition, this requirement does not apply if an exemption is available under the Hobsons Bay Planning Scheme.
Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.
The tree protection guidelines on page 5 of the Arboricultural Assessment and Report, prepared by Glen Waters and dated 12 December 2023, are to be followed throughout construction. The Arboricultural Report is to form part of the endorsed documents.
[5]
Prior to the submission of a request for endorsed plans under this permit, the owner must lodge a bank guarantee or bond of $5,000 with the Responsible Authority to ensure the satisfactory establishment of landscaping works. Once landscaping has been completed in accordance with the endorsed landscaping plan, Council must be notified so a six week establishment period will commence. The bank guarantee or bond will be returned after an inspection has confirmed the landscaping has been maintained for that period to the satisfaction of the Responsible Authority. After the establishment period, the landscaping must be maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority.
Prior to the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority.
Prior to commencement of any works the following provisions relating to the protection of the existing street tree must be undertaken to the satisfaction of the Responsible Authority:
[6]
(a) A suitable Tree Protection Zone with barrier fence must be established around the existing street tree.
(b) The Tree Protection Zone must be enclosed using a 2-metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'.
(c) The area within the Tree Protection Zone must not be disturbed by any means (including parking of vehicles or storage of plant & equipment, materials, soil or waste).
(d) No excavation is allowed within the Tree Protection Zone except with the consent of Council's Town Planning Department and under the supervision of a qualified Arborist.
[7]
Concurrently with a request for endorsed plans under this permit a revised Sustainable Design Assessment (SDA) and BESS report must be submitted to and approved by the Responsible Authority. When approved the SDA will be endorsed and will then form part of the permit. The assessment and report must be substantially in accordance with those provided with the application, but modified to show to the satisfaction of the Responsible Authority:
[8]
(a) The project must meet a minimum 50% overall BESS score and minimums in Energy (50%), Water (50%), IEQ (50%) and Stormwater (100%) BESS categories.
(b) The roof catchment areas for rainwater tanks to be consistent across the BESS Report and the WSUD Plan.
(c) The removal of gas in accordance with Condition 21.
[9]
Prior to the occupation of any dwelling approved under this permit, a report from the author of the Sustainable Design Assessment (SDA), approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the SDA, including any Water Sensitive Urban Design initiatives, have been implemented in accordance with the approved Plan.
The sustainable design initiatives listed in the endorsed Sustainable Design Assessment must be incorporated into the development to the satisfaction of the Responsible Authority.
[10]
Concurrently with a request for endorsed plans under Condition 1 of this permit, a revised Waste Management Plan (WMP) must be submitted and approved by Council, when approved the plan will be endorsed and form part of the permit. The plan must outline how waste will be managed and collected for development to the satisfaction of the Responsible Authority as follows:
[11]
(a) The provision of an individual rubbish bin for each dwelling, to be stored in locations that align with the areas where trees or columns are permitted in diagram 1 to Clause 52.06-9 of the Hobsons Bay Planning Scheme.
(b) Shared FOGO and recycling bins across the five approved dwellings.
(c) An assessment of how many shared FOGO and recycling bins will be required for the likely occupants of the five approved dwellings.
(d) The identification of a designated bin storage area or areas on site that can accommodate the required number of bins (for roughly 0.7 square metres per bin) and that must not be within the front setback of the dwellings.
(e) The inclusion of instructions for entering into a shared bin arrangement with Council.
[12]
The site must be connected to a legal point of drainage discharge to the satisfaction of the Responsible Authority.
Prior to commencement of the development the owner must prepare stormwater drainage design plans to the satisfaction of the relevant Building Surveyor. An application to Council must be made for a Legal Point of Discharge for the disposal of stormwater from the subject land and to determine the relevant Council standards for the stormwater drainage system design. An on-site storm water detention system will be required if the volume of stormwater exceeds the capacity of the legal point of discharge.
All basic services including water, electricity, sewerage, telephone and other telecommunication facilities must be installed underground. All above ground meters must be located to the satisfaction of the Responsible Authority.
The owner must meet the costs of all alterations to and reinstatement of the Council and other Public Authority Assets deemed necessary and required by such Authorities for the development. The owner must obtain the prior specific written consent of the Council or other relevant Authority to such alterations and reinstatements and must comply with conditions required by the said Authority in relation to the execution of such works.
[13]
Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:
[14]
(a) Constructed.
(b) Properly formed to such levels that they can be used in accordance with the plans.
(c) Surfaced with asphalt or concrete unless another surface treatment is approved by Council.
(d) Drained and maintained.
(e) Line-marked to indicate each car space and all access lanes.
[15]
Parking areas and access lanes must be kept available for these purposes at all times.
[16]
Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's Contracts, Procurement and Asset Protection Department prior to construction.
[17]
Prior to the occupation of the buildings, all visual screening depicted on the endorsed plans must be fitted and/or constructed in accordance with the endorsed plans and to the satisfaction of the Responsible Authority.
Prior to the occupation of the buildings, all boundary walls on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority. Any protruding floor slab must be cleaned and trimmed flush with the wall to the satisfaction of the Responsible Authority
All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
[18]
(a) The development is not started within two (2) years of the issued date of this permit.
(b) The development is not completed within four (4) years of the issued date of this permit.
[19]
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition
[20]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[21]
[2] Of the former Clause 55, that applied prior to Amendments VC267 and VC276.
Parties
Applicant/Plaintiff:
Ayda Vic Pty Ltd
Respondent/Defendant:
Hobsons Bay CC [2025] VCAT 357
Legislation Cited (2)
Administrative Tribunal Act 1998
Environment Act 1987
Cases Cited (3)
Ayda Vic Pty Ltd v Hobsons Bay CC [2025] VCAT 357 (24 April 2025)
Ayda Vic Pty Ltd (the 'applicant') seeks to review the decision of the Hobsons Bay City Council (the 'Council') to refuse to grant a permit for the proposed development of five dwellings on land at 53 Davies Street, Altona (the 'review site').
The Council's original grounds of refusal, confirmed by amended grounds filed on 25 March 2025, raised concerns that the proposal is in a location which is subject to coastal inundation, and the proposal has not addressed that risk. The review site is not covered by any overlay, and the only permit trigger is found in the Residential Growth Zone. Havign regard to the purposes and decision guidelines in the Residential Growth Zone, there is nothing that engages a discretion to be exercised in relation to flooding, sea level rise, or any type of inundation. As such, and in keeping with the principles set out in the decision of Kiyagan v Baw Baw SC[2025] VCAT 206, the issue of sea level rise and coastal inundation is not before me in this proceeding.
Following the filing of its updated grounds on 25 March 2025, the Tribunal brought the decision of Kiyagan v Baw Baw SC[2025] VCAT 206 to the Council's attention, and asked the parties to come to the hearing prepared to address the relevance of the Council's concerns regarding coastal inundation, to the permit requirements in this proceeding. In response the Council filed further updated grounds on 1 April 2025, that withdrew the ground relating to coastal inundation.
That leaves the Council with five grounds, all of which relate to a single issue, that being the view of Council that the proposed development of five, two storey dwellings on the site represents an underdevelopment of land in the Residential Growth Zone, and fails to achieve the extent of housing growth encouraged in this location by the Hobsons Bay Planning Scheme.
Two statement of grounds were lodged by nearby residents, who did not seek to become parties to the proceeding. Their grounds raise concerns in relation to the extra demand created for on-street carparking, potential for overlooking, amenity impacts from the bin enclosures, other potential acoustic impacts, loss of sunlight in the evening, and the visual impact of 5 three storey townhouses. It is evident from one of these statements of grounds that the nearby resident understands that five, three storey townhouses are proposed on the land, and opposes this form of development. In fact, the proposal is for five, two storey townhouses.
The issues or questions for determination are:
Is the proposal an underdevelopment?
Is the proposal an appropriate built form response to its context?
Will there be any unreasonable off-site amenity impacts?
Does the proposal provide an appropriate level of internal amenity?
Does the proposal appropriately provide for car parking and traffic movements?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Hobsons Bay Planning Scheme, I have decided to set aside the Council's decision, and direct the grant of a planning permit subject to conditions. My reasons follow.
However, this policy does nothing more than to say that a decision maker should support a development that is substantially different in scale, such as apartment buildings. It does not encourage such development, nor discourage lower scale or townhouse style development. There is nothing in this policy statement, or in others found in the Hobsons Bay Planning Scheme that were brought to my attention, that sets a preference for a particular style or scale of housing in the Substantial change area.
Secondly, in relation to the broader policy guidance and background documents referred to by the Council, I adopt the analysis and findings contained at paragraphs 8-38 of the Tribunal decision of Shak Developments Pty Ltd v Hobsons Bay CC[2024] VCAT 1093. I also support the finding in that decision that different housing typologies are envisaged for the Substantial change areas, and not all lots should be developed with apartments, or developments of the same height and scale.
Thirdly, I consider that the proposed development of five dwellings on a lot of 725 square metres represents a considerable extent of housing growth on a relatively small site, in this neighbourhood. Even if the development were to be extended to three storeys in height, the footprint of the individual townhouses may not reduce, and so five townhouses may still be the housing outcome. While a four storey apartment building will likely achieve an increase in housing growth, there are factors in this context that weigh against the potential for four storey development on the review site. I come to those factors later in these reasons.
In its written and oral submissions, the Council pointed the Tribunal to other examples of development in the substantial change area, which they say are appropriate responses to the zone and supporting policy context. In addition to these submissions, the Council helpfully provided copies of endorsed plans for these developments. One of these developments commended by the Council is at 41 Bent Street, Altona. That development comprises six, two storey townhouses and one, three storey townhouse on a lot of 938 square metres. The site at 41 Bent Street is located in the Residential Growth Zone, and abuts land in the Mixed Use Zone to its west, with land on the opposite side of Bent Street also within the Residential Growth Zone. As such, the site at 41 Bent Street is located closer to the core of the Altona Major Activity Centre, as compared to the review site in this proceeding. Despite these locational advantages, that site has been approved to provide seven townhouses on a site of 938 square metres, which is comparable to the proposed five townhouses on a site of 725 square metres in this proceeding. As such, I am not persuaded that the approved development at 41 Bent Street achieves a higher level of housing contribution, as compared to the proposal that is now before me. In short, I do not understand why one is identified as an underdevelopment, and the other is held up as an exemplar development.
Fourthly, I consider that the following contextual reasons also support the extent of development that is proposed on the review site.
The purposes of the Residential Growth Zone seek to provide housing up to and including four storeys. The proposed two storey development on the review site goes some way to achieving this purpose. Schedule 1 to the RGZ does not contain design objectives or decision guidelines, that might encourage a different built form outcome.
The review site is at the edge of the Substantial change area, and policy at Clause 15.01-1L-01 encourages a stepping down of heights adjacent to Moderate change areas. This policy can be read as to not support a four storey development on the review site, but rather encourage a more modest scale of development.
The abutting land to the south is developed with a single storey dwelling that has solar panels on its roof, at the immediate interface to the review site. The development of a taller built form on the review site may face difficulty, when one has regard to the shadowing impact to these existing solar panels.
The view of Council and Melbourne Water that the review site is subject to coastal inundation, may result in overlays being applied to the land in the future. Any such future planning controls may limit the potential for redevelopment of other land in Davies Street, and may result in a review of the boundaries of the Substantial change area and the Residential Growth Zone. While these are unknowns, it follows that I cannot be assured that the Council's current vision for Davies Street, will ultimately result in a level of substantial change for this locality.
Finally, I note the following policy from Clause 16.01-1L of the Hobsons Bay Planning Scheme.