Becton Living v Stonnington CC [2008] VCAT 1195

Since the permit was granted, the site has been sold and the current owner now proposes to use the site for a retirement village. It has lodged a new application for permit for use of the land for this purpose (residential accommodation). The new permit application is for use only.
The section 87A application to the Tribunal proposes changes to the internal layout of the approved development to facilitate its future use for retirement living and external changes to the height and shape of building. The number of dwellings is proposed to be increased from 65 to 77, and an increase in the size of the basement will provide an additional 35 car spaces.
Although the original grant of the permit was hotly contested by residents of the surrounding area, the applicant contends that no notice is required of the proposed permit amendment due to the site's context and the lack of impact which the proposed changes will have on nearby residential properties.
The site abuts the service road of Dandenong Road. It is surrounded by streets and parkland. The closest dwellings to the east are separated from the site by Sydare Avenue and a parkland reserve approximately 25-30 metres wide. The site's western boundary abuts Hyslop Parade on the other side of which is an urban forest reserve. The nearest houses to the north in Hyslop Parade are in excess of 30 metres from the north western corner of the subject site.
The development that was approved by the Tribunal had a striking curvilinear form. The urban design and proposed landscaping of the proposed development, and the degree to which the development integrated with the abutting parkland, were of critical importance in the Tribunal's decision that a development of this scale would not be read against the context of the more residential hinterland to the north and north east of the site and would not therefore impact upon the character of that hinterland. The Tribunal found that the proposed development, "by virtue of its particular siting, design and massing would not undermine or erode the existing character of the area and therefore [would] not be disrespectful of that character".[3] The proposed changes to the plans will remove the curvilinear character of the development and square it off. The result will be a slight increase in the overall footprint of the development and a slight reduction in height. The new design will give the building a more conventional appearance.
In my view, the proposed combination of changes proposed by this application to the external appearance and articulation of the building, and the increased number of dwellings and car spaces, lead me to the conclusion that notice should be given of the application to amend the permit. Whilst it is argued by the applicant that the changes will not cause any material detriment to anyone, this is a conclusion drawn by the applicant based on the merits of the proposal. My task at this point is not to assess the merits of the proposal, but to determine whether any other person may have a material interest in the outcome of the request to amend the permit.[4]
I note that the wording of section 90(2) of the Planning and Environment Act 1987 refers to material interest whereas the notice provisions of Section 52(1) refer to material detriment. I consider that the surrounding residents may have a material interest in the proposed changes to the form of the development and its change of use. Amending the permit does not create an opportunity to recontest the permit in its entirety. Any interest by a person must relate to the nature of the changes. However, the contentious nature of the Tribunal hearing in 2004 and the prominence of urban design issues at that hearing means that it would be prudent to give people an opportunity to be made aware of the proposed changes and be provided with an opportunity to be heard (if necessary) rather than shut people out of the decision making process.
I am not persuaded by the council that it is necessary to undertake the extensive notice that was required when the original planning permit application was considered. It will be sufficient to place a sign on the site on both the Dandenong Road and Hyslop Street frontages, and to give notice to the owners and occupiers of properties in Sydare Avenue between Dandenong Road and No.28, and the three properties in Hyslop Parade at Nos. 36, 38 and 38A. Considering the width of Dandenong Road in this location, and the volume of traffic it carried, I do not consider it is necessary to give notice to any properties on the south side of Dandenong Road.

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Becton Living v Stonnington CC [2008] VCAT 1195 (2 July 2008)

Parties