Victorian Civil and Administrative Tribunal|2014-06-30

For the reasons outlined above I have concluded that the decision of the Responsible Authority will be set aside.

The use and development of the land for a multi dwelling development and associated reduction of car parking and bicycle facilities

Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans substituted by the Tribunal dated 20 March 2014 (revision C) but modified to show:
- (a) Any changes required by condition 3 (Sustainable Management Plan).

All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority.

Prior to the occupation of the development approved under this permit, a report from the author of the Sustainability Management Plan, 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 Sustainability Management Plan have been implemented in accordance with the approved plan.

Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with that prepared by Clause 1 dated 13 May 2013 but modified to show:
- (a) Recognition that every rateable tenement within Stonnington is liable to pay a garbage charge irrespective of the level of waste collection services provided to the tenement by Council.
- (b) Advice on how residents are to dispose of wastes.
- (c) Advice on how residents should dispose of wastes not readily contained within the nominated bins (i.e. hard waste, furniture, large packaging etc).

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

No polluted and/ or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
The development must be constructed with finished floor levels a minimum of 300mm above the applicable flood level.
Prior to the issue of an Occupancy Permit, a certified survey plan, showing finished floor levels (as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
No materials, equipment or vehicles associated with the demolition or construction works located at 8 Princes Close are to be stored/parked within the boundaries of Little Chapel Reserve.
Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (SEPP).
Prior to the development commencing a report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in compliance with Council's report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
Air conditioning and other plant and equipment installed on the subject buildings shall be so positioned and baffled so that noise disturbance to occupiers of adjoining properties is in accordance with State Environment Protection Policy (SEPP), to the satisfaction of the Responsible Authority.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
The level of the footpaths and/or laneways must not be lowered or altered in any way.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:
- (a) The development is not started within two years of the date of this permit.
- (b) The development is not completed within four years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[1] I have considered all submissions and evidence presented by the parties although I do not recite all of the contents in these reasons.

Environment Act 1987

Buckerfield Architects v Stonnington CC [2014] VCAT 792 (30 June 2014)

John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258; Chen v Melbourne CC (Red dot) [2012] VCAT 1909

As became clear through cross examination of Mr Angus by Mr Thompson, if a system with mini-inverters had been installed where each panel effectively operates independently, then the impact of the shadows cast by the proposed building on the energy yield of the whole system would be significantly less.
Mr Abraham tabled a Tribunal decision, Chen v Melbourne CC (Red dot) [2012] VCAT 1909, in support of his submission that the proposal should not be supported as it will impact on the energy yield of the solar array at 6 Princes Close. I do not think that this Tribunal decision has any relevance to this case as it related to a residential hinterland site where the planning scheme anticipated a minimal level of built form change. In any event, this earlier decision has effectively been superseded by a more recent decision which is John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258. This decision clearly sets out the tests for forming an opinion about whether the level of impact on the adjoining solar array is reasonable. In light of this latest decision, I consider that the key relevant question is, "What constitutes 'legitimate expectations' in light of the strategic controls and policies affecting the subject land?"
In this case, the future building heights are clearly expressed in the DDO7 which applies to this area. The DDO7 clearly states that the preferred maximum building height is 19 metres. The subject site and adjoining land were covered by the DDO7 at the time the solar array was installed at 6 Princes Close. When deciding to install a solar energy system (including making a decision about whether to install a system in the first instance; the type of system to be installed; and the location of the system) I find that it would have been reasonable to anticipate the construction of a building up to 19 metres high on the subject site (that is, a building taller than the building at 6 Princes Close). Given the clear built form outcomes sought by the DDO7, I think it would be unreasonable to require the subject building to be a lesser height on the basis of its impact on the existing solar array at 6 Princes Close.
Whilst I sympathise with Mr Abraham and Mr Revilla, and acknowledge their endeavours to minimise their own personal carbon footprints, I find that the impact of the proposed building on the energy yield of the solar array at 6 Princes Close is an insufficient reason to refuse the proposal.

Buckerfield Architects v Stonnington CC [2014] VCAT 792

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

Buckerfield Architects v Stonnington CC [2014] VCAT 792 (30 June 2014)