appellant. The Tribunal varied the decision of the responsible authority: it ordered that planning permit P1145/2016 be amended by deleting Conditions 1(b) and 1(c) (so the fourth storey remains and no...
Key principles
When considering a correcting repeat appeal, the Tribunal must give great weight to the findings of the earlier Tribunal decision but determine the new proposal afresh and only...
Design and Development Overlay provisions (DDO11) should not be applied in a doctrinaire, inflexible manner; performance-based planning requires assessment of a proposal's design...
A top storey will not be contrary to DDO11 or heritage objectives where, on the facts, it is recessive by reason of setbacks, materials and form, does not unduly impact heritage...
A condition requiring registration of an agreement under s173 to secure private waste collection is an appropriate and proportionate mechanism to provide long-term certainty to...
Issues before the court
What approach should the Tribunal take when reviewing a permit in the context of a repeat appeal?
Whether Condition 1(b) requiring deletion of the fourth storey (top storey) should be imposed?
Plain English Summary
VCAT reviewed three permit conditions attached to a permit for a five-storey mixed-use building in Ivanhoe. The Tribunal treated the matter as a correcting repeat appeal and, after weighing the earlier Tribunal findings and expert evidence, decided the fourth (top) storey was acceptable because it would be visually recessive, fit the policy objectives for the activity centre, and not harm nearby heritage places. Accordingly the Tribunal deleted the conditions requiring removal of that level and the reallocation of car parking, but it retained the requirement for a section 173 agreement to secure private waste collection arrangements. The responsible authority was ordered to issue a modified permit.
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Deep Dive
1,870 words · generated 09/07/2026
What happened
Caramar Holdings applied for and obtained a planning permit for a five-storey mixed-use building at 154 Upper Heidelberg Road, Ivanhoe (permit P1145/2016). The permit authorised demolition in a Heritage Overlay, construction of a five-storey building (bank/caf\u00e9 ground floor, two storeys of offices, two storeys with five dwellings) and reductions/waivers of parking/loading requirements. The responsible authority included conditions that the fourth (top) storey be deleted (Condition 1(b)), that car parking attributable to that floor be reallocated to office use if deletion occurred (Condition 1(c)), and that a s173 agreement be entered on title to secure private waste collection arrangements (Condition 8). Caramar sought review of those three conditions.
Whether Condition 1(c) reallocating car parking (if fourth storey deleted) should be maintained?
Whether a section 173 agreement should be required to secure private waste collection arrangements (Condition 8)?
Cited legislation
1 cited instrument linked from this judgment.
The Tribunal approached the matter as a correcting repeat appeal. The project followed an earlier refusal of a six-storey building at the same site and a 2016 VCAT decision that affirmed that refusal. The applicant's new proposal reduced the streetwall height, reduced building height from six to five storeys and increased setbacks in response to the earlier Tribunal's findings. The Tribunal concluded the fourth storey was acceptable and deleted Conditions 1(b) and 1(c), but it retained Condition 8 requiring a s173 agreement for waste collection. The responsible authority was directed to issue a modified permit accordingly.
Key factual features that influenced the decision:
The site sits on a narrow frontage to Upper Heidelberg Road with three street frontages, falls from north to south, is opposite Waterdale Road and abuts a church and community hall to the south (including a contributory heritage church).
The site is within the Ivanhoe major activity centre, in a Commercial 1 Zone, with DDO11 and a Heritage Overlay applying.
The proposal included a two-storey podium (streetwall) and upper curvilinear storeys, with the top storey set back behind the podium (front setback ~6m).
Experts (town planning, heritage and traffic evidence) were called in support; council officers recommended the top storey subject to increased street setbacks; respondents objected to the top storey on built-form and precedent grounds.
Why the court decided this way
The Tribunal's reasoning rests on a combination of planning merits and legal approach to repeat appeals.
Approach to repeat appeals (procedural/administrative law)
The Tribunal identified established principles for repeat appeals: give great weight to the earlier Tribunal decision, not reverse without good reason, and assess afresh but with caution (the Tribunal referenced the Supreme Court's observations in Zumpano v Banyule CC) [see the Tribunal's statement of approach]. It classified this matter as a correcting repeat appeal because the current proposal had made changes responding to the earlier decision (reduced streetwall, lower overall height, increased setbacks) [see Tribunal's reasoning on correcting repeat appeals].
Built-form, DDO11 and heritage analysis (substantive planning merits)
The Tribunal recognised DDO11's objectives (upper storeys not unduly bulky; setbacks A and K; podium no higher than 9 m) and the Heritage Overlay purposes (conserve and enhance heritage places). But it emphasised that DDO controls operate in a performance-based planning context and should not be applied as inflexible, doctrinaire numerical rules [the Tribunal expressly rejected a 'blunt' application of DDO11].
The Tribunal examined the specific design response: a two-storey podium (streetwall) to preserve the immediate heritage scale, a 6-metre front setback for upper storeys so that the top storey sits behind the primary streetwall, curvilinear lightweight upper forms and materials intended to be visually recessive.
Expert heritage evidence supported that the top storey would have little impact on the heritage precinct or the church opposite; the council's heritage adviser had indicated acceptability provided greater street setbacks.
The Tribunal concluded that the four-storey-versus-five-storey question had to be resolved by balancing heritage, streetscape, design and activity-centre policy objectives. It found the five-storey design appropriately responded to earlier concerns and achieved planning objectives for housing diversity and activity centre intensification.
Conditions: redundancy and proportionality
Because the Tribunal accepted the fourth storey on its merits, the reallocation of parking that was contingent on deletion of that storey became redundant and was deleted.
The requirement for a s173 agreement to secure private waste collection was retained. The Tribunal concluded an on-title agreement would provide certitude to occupants and prevent conflicting expectations that might involve the council; it regarded registration costs as not unduly onerous relative to the scale of the development.
In short, the Tribunal gave careful weight to the prior VCAT decision, but found the amended design adequately addressed prior concerns and, importantly, satisfied the performance objectives in the planning controls and heritage overlay.
Before and after state of the law
Before this decision:
The ordinary position on repeat appeals was well established: the Tribunal should give weight to previous determinations, exercise caution in overturning decisions, and assess new proposals afresh (as the Tribunal reiterated and relied on Zumpano).
DDO controls and heritage overlays required careful balancing: heritage controls take precedence where conflict exists in Schedule 11.
After this decision (practical state of play):
The decision reinforces that a correcting repeat appeal which responds to prior findings may succeed: applicants who materially change their proposals in line with Tribunal findings can obtain more favourable outcomes provided the amended design meets policy objectives and demonstrates site-specific merit.
It underlines that the DDO's numeric setbacks are not necessarily mandatory in every instance; a performance-based assessment can justify departures where a well-considered design demonstrates compliance with objectives (recessiveness, transition, materials).
It affirms the acceptability of s173 agreements as a routine, proportionate mechanism to secure ongoing development management obligations (waste collection) where that on-title certainty is justified by mixed occupancy and varied expectations.
This is a decision of VCAT Member G Rundell; it is persuasive authority for similar planning matters in Victoria though not binding on higher courts.
Key passages with plain-English translation
"Pay regard and give great weight to the previous decision of the Tribunal."
Translation: The Tribunal will carefully consider and heavily weigh its earlier finding; it will not lightly depart from it.
"I consider this review to be a correcting repeat appeal as changes between the initial application and the second proposal appear to be generally in accordance with the findings of a previous Tribunal."
Translation: The applicant changed the design to address earlier Tribunal criticisms; this is not merely a re-run, but a corrected version that deserves careful fresh assessment.
"I agree with Ms Heggen that applying the heights and setbacks in DDO11 as blunt and inflexible mandatory controls would be contrary to performance based planning."
Translation: The Tribunal rejected applying DDO11 as strict numeric rules without regard to whether the objectives are met by the actual design; planning rules should allow discretion where the outcomes meet policy aims.
"The agreement on the title provides all parties with the certainty as to who is responsible for this service."
Translation: Putting waste arrangements into a registered agreement on title clarifies obligations for current and future occupants and avoids disputes or default reliance on council services.
What fact patterns trigger this precedent
This decision will be most relevant where:
An applicant brings a revised proposal after an earlier VCAT refusal or a council refusal affirmed by VCAT, and the changes specifically respond to the earlier decision's findings (a correcting repeat appeal).
The site is in a Commercial 1 Zone within a heritage precinct and subject to a DDO which prescribes upper-storey setbacks and preferred heights, but the proposal offers design measures (setbacks, materials, form) claimed to achieve the DDO objectives without strict numerical compliance.
The development proposes an upper-storey element that is argued to be visually recessive by design (setback behind a preserved podium/streetwall, lightweight materials, curved forms).
There are concerns about precedent and whether approving one non-standard outcome undermines a new planning control: the decision provides support for site-specific departures where the proposal demonstrably responds to objectives.
How later courts have treated it
This is a VCAT decision by a Member (G Rundell). It discusses and applies the Supreme Court guidance in Zumpano rather than overruling it. It follows the accepted approach to repeat appeals articulated by higher authorities: give weight to earlier Tribunal decisions, assess the new proposal afresh, and be cautious in overturning prior decisions. As an intermediate tribunal decision, it will be cited in subsequent VCAT matters dealing with repeat appeals, DDO interpretations, and the use of s173 agreements; its persuasive value will be strongest before VCAT and planning panels. Practitioners should treat it as supportive authority when arguing that:
design-based departures from DDO numeric setbacks can be acceptable, and
correcting repeat appeals that directly respond to prior findings deserve careful reconsideration.
(As of this decision's date, there is no indication in the text that higher courts have disapproved of its approach; the Tribunal explicitly relied on Supreme Court authority to frame its methodology.)
Still-open questions
The boundary between permissible performance-based flexibility and the protective purpose of DDO numeric setbacks
The Tribunal rejected a 'blunt' numeric application of DDO11 on these facts. However, where the DDO explicitly prescribes setbacks to protect particular vistas or daylighting for adjacent properties, it remains an open question how routinely and how far a Tribunal can depart from those dimensions in favour of visual or material recessiveness.
Precedent effects in incremental approvals across an activity centre
The Tribunal found this scheme unlikely to be a template other sites could copy because of site-specific constraints. But in practice, subsequent approvals of similarly non-standard designs could cumulatively change the character DDO11 sought to protect. The judgment does not establish a clear test for when cumulative precedent concern will defeat a one-off design-based departure.
The necessity and limits of s173 agreements for management matters
The Tribunal accepted s173 registration as proportionate for waste arrangements here. Whether s173 will be required routinely by councils for equivalent matters or only where there is a demonstrable risk of occupant confusion remains a local policy practice question.
The weight to afford to prior Tribunal decisions when the earlier decision rejected a taller building but the new application materially reduces visual impact by design rather than strictly complying with control metrics
The judgment demonstrates that a responsive design can justify a different outcome. But it leaves open a precise yardstick for what quantum of design change is sufficient to justify overturning an earlier decision, beyond the general admonition to give great weight to the prior decision.
Applicability beyond heritage precincts
The Tribunal balanced heritage overlay purposes and DDO objectives here. Whether the same approach to DDO flexibility would be adopted in non-heritage contexts with different public-interest considerations remains a question to be decided case-by-case.
Conclusion: Caramar v Banyule (VCAT, 25 October 2017) is a useful VCAT authority on how the Tribunal treats correcting repeat appeals, the permissibility of a site-specific performance-based departure from DDO numeric setbacks, and the practical use of s173 agreements to secure ongoing development management obligations. Practitioners should draw on this decision when an amended design directly responds to prior reasons for refusal, but they should also be mindful that the Tribunal's willingness to depart from DDO metrics is fact-specific and may not generalise across dissimilar sites.
Judgment (62 paragraphs)
[1]
The applicant seeks the review of three conditions:
[2]
1c - no reduction in the number of car parking spaces and allocate the surplus spaces arising from Condition 1b to office use
[3]
8 - require a s173 agreement in respect of waste collection arrangements
The review site is located on the southeast corner of Upper Heidelberg Road and Waterdale Road, Ivanhoe. Seddon Street abuts the eastern boundary. The site is irregular in shape, with a frontage of 8 metres to Upper Heidelberg Road, and boundaries of 30 metres to Waterdale Road and 22 metres to Seddon Street. It has an area of 578 square metres.
[10]
The land falls 2.5 metres from Upper Heidelberg Road to the rear. The site is not constrained by any special features or encumbrances. It is occupied by a single storey commercial building constructed to the site's boundaries.
[11]
The adjoining site to the south is occupied by a church, a community centre and a public car park.
[12]
The site is within the Ivanhoe major activity centre and is within 5 minutes of the Ivanhoe train station.
[13]
I inspected the site and its environs on 19 October 2017. The parties did not accompany the inspection.
[14]
In 2014 Caramar Holdings Pty Ltd applied for a planning permit to demolish a building in a Heritage Overlay and to construct a six storey building, with a three storey streetwall, accommodating a bank, café, office and 12 dwellings. Permission was also sought to reduce the provision of car parking and to waive the provision for a loading bay.
In March 2015, Banyule City Council (the council) determined to refuse to grant a planning permit for the proposed development. In 2016 the Tribunal affirmed the decision of the responsible authority. The Tribunal generally found that the proposed building would unduly large for its context, and a four or five storey building with a two storey streetwall would be a more respectful fit into the activity centre and heritage place.
In March 2017 the council granted planning permit P1145/2106 for a mixed use development that comprises a five storey building with a two storey streetwall.
The permit applicant has requested the Tribunal review three conditions that have been included in permit P1145/2106. These are:
1b Removal of the fourth floor level
1c A revised car parking allocation schedule that includes no reduction in the number of car parking spaces and for the four car parking spaces previously allocated to the fourth floor dwellings to be allocated to office use
8 Unless otherwise agreed in writing by the responsible authority before the development starts the owner must enter an agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987 to the satisfaction of the responsible authority and such agreement must provide mechanism to secure:
The owner acknowledge that all refuse and recycling collection will occur by way of a private contractor in accordance with the waste Management Plan.
The owner must pay the reasonable costs for the preparation, execution and registration of the section 173 agreement. A copy of the Titles Office registration number (dealing number) for the agreement must be provided to council as proof of registration.
[15]
The Tribunal in 2016 affirmed the decision of the responsible authority that a permit should not be granted for a six storey mixed use building on the review site[2]. That building had a similar appearance although it comprised a three storey streetwall, six storeys and lesser upper level setbacks to its boundaries.
In its decision the Tribunal made several findings regarding changes that could be made to the development to enable it to be an acceptable fit into its context. These included reducing the height of the streetwall to two storeys, reducing the height of the building to four or five storeys and increasing the setbacks of the storeys above the streetwall from to the site's boundaries.
The applicant lodged a further application with the council for a five storey building with a two storey streetwall. The council has granted permit P1145/2016 for the proposed building. The permit includes a condition that the fourth storey be deleted, reducing the height of the building to four storeys.
The Tribunal has established principles for the consideration of repeat appeals. These include:
Pay regard and give great weight to the previous decision of the Tribunal.
Not reverse the previous decision unless there has been a change of circumstances that justify a different view.
Reverse a previous decision only with great caution.
Approve an alternate proposal relative to a previously rejected one only if there have been significant changes to the proposal, the circumstances, planning policy or the interpretation of the facts or the law.
Repeat appeals have been further distinguished between the classic repeat appeal where a similar proposal is re-run in the hope of gaining approval, and a correcting repeat appeal where an applicant says he/she has responded to the findings of the Tribunal.
In assessing a correcting repeat appeal, in Zumpano v Banyule CC[3] the Supreme Court found that:
[16]
For the later decision maker to determine what weight should be given to the earlier decision, assessment of the significance of the correcting features in the context of the proposed use and development is pre-eminently a planning and not a legal matter.
[17]
The Supreme Court also found that at all times the Tribunal is to consider the new proposal afresh.
I consider this review to be a correcting repeat appeal as changes between the initial application and the second proposal appear to be generally in accordance with the findings of a previous Tribunal. I think it is also a correcting appeal because the scope of my discretion is limited to the three conditions under review. This case is not a case of an applicant seeking approval for the same development that was previously rejected.
[18]
The application proposes to develop a five storey building comprising a bank and a café on the ground floor, two storeys of office space and two storeys with five dwellings. Condition 1(b) of permit P1145/2016 requires the fourth storey to be deleted removing two dwellings that would each have three bedrooms.
The five storey building would have a height of 18.2 metres on the Upper Heidelberg Road frontage and 20.5 metres on its south façade. The height variances arise from the natural slope of the land.
The fourth storey would have the following setbacks to its abutting streets and to the property to the south:
4.5 metres from Upper Heidelberg Road to the front of the terrace and canopy above, and 6 metres to the front façade
3.15 metres to Seddon Street
3 metres to Waterdale Road
2.2 metres to the south boundary, except for a stairwell and lift core that would be on the boundary.
I observe that the council officers recommended that the fourth storey would be acceptable subject to the setback of the roof being increased to 6.3 metres to Upper Heidelberg Road, and the facade setbacks increased to 4.5 metres to both Seddon Street and Waterdale Road. The officers did not recommend increased setbacks to the south boundary.
[19]
The description of the site's features and context remains applicable to this review. I repeat the relevant parts of the description of the context from the previous decision.
[20]
The review site is a modest sized lot that has been developed for a utilitarian office building that covers most of the site and is presently used as a bank. It falls from north to south. It has three street frontages and only one abuttal to another site used for a church and community centre. Part of the adjoining land is also used for a public car park. While the site is within a heritage precinct, the existing building has no heritage value.
[21]
The site is located on Upper Heidelberg Road, approximately midway between the north and south ends of the major activity centre. The prevailing built form along Upper Heidelberg Road is two storeys, with some facades extending to an equivalent of three storeys. Some three and four storey mixed use buildings have been developed at the southwest end of the centre, where the land falls from Upper Heidelberg Road.
[22]
Waterdale Road is one-way (south). Seddon Street has two-way access and the frontage to Upper Heidelberg Road is very narrow. The site is a prominent site because its three road frontages makes its built form highly visible in Upper Heidelberg Road. The site is also opposite Waterdale Road, north of Upper Heidelberg Road, and it is the focal point of long distance, southward views along Waterdale Road.
[23]
The site is conveniently located to the Ivanhoe train station to the south and bus services operate from the centre to many locations.
[24]
I consider the site is a rare opportunity site because it is relatively large and it has few constraints. Its proximity to other businesses within the centre and to a train station make it appropriate it be redeveloped more intensively than the single storey office building.
[25]
It is constrained to some degree by the largely intact and consistent heritage streetscape along Upper Heidelberg Road. The adjacent community hall and heritage church require any development to respect the heritage place[4].
[26]
Development is occurring in the centre. A tall apartment building has been constructed in Westley Avenue, adjacent to the train station. The Tribunal approved a four and five storey apartment building at No. 19-33 Upper Heidelberg Road at the south end of the activity centre[5]. A ten storey development proposed for No.40 Upper Heidelberg Road, also at the south end of the centre, was refused by the council and is presently before the Tribunal. A five storey mixed use development is under construction at No.103-109 Upper Heidelberg Road, to the southwest of the review site.
Mr Willis confirmed there are no plans to sell or redevelop the church and community hall that are to the south of the review site.
[27]
The parties agreed that the planning controls have not changed since the previous review. The site is within the Commercial 1 Zone. The purposes of the zone are to implement planning policy and to:
[28]
Create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses;
[29]
Provide for residential uses at densities complementary to the role and scale of the commercial centre.
[30]
The land is affected by Design and Development Overlay Schedule 11 (DDO11). The design objectives of DDO11 include ensuring the upper storey elements are not unduly bulky or visually intrusive and any taller elements transition to lower scale buildings. High quality design is encouraged and larger scale developments are directed to key redevelopment sites. The fine urban grain at street level is to be retained.
The review site is in Precinct 5 in DDO11. Buildings are encouraged to be no higher than 15 metres and to have a podium built to their boundaries and no higher than 9 metres, Built form above the podium should be setback in accordance with the preferred setbacks in DDO11 (Setbacks A in Table 6 to the DDO Schedule). The storeys above the podium should be setback 4.5 metres to a street or 3 metres where the site abuts a laneway.
It is important to note that the preferred setbacks applicable to this site are different to the preferred setbacks that apply to properties that front Upper Heidelberg Road, north of Seddon Street. Setback B applies to those properties including a six metres setback above a nine metre streetwall. This six metre setback is not applicable to the review site.
Ivanhoe is identified as one of three higher order activity centres in Banyule in clause 21.03. These centres are the preferred locations for a range of shops, office entertainment and education facilities that service the wider community. They are also the preferred locations for higher density housing.
Clause 21.04 says it is necessary to maintain population numbers in Banyule to support local centres and community groups. There is also a need to provide a more diverse housing stock. Housing growth and a wider mix of dwellings is encouraged close to (and within) activity centres. Offices are also encouraged to locate in the Ivanhoe activity centre.
Objective 4 of Clause 21.06-1 encourages:
[31]
A substantial proportion of new housing to be located within or close to Activity Centres and the PPTN particularly where there is high frequency and quality of public transport services in operation.
[32]
The site is located within a housing diversity area in clause 21.06-2. A housing diversity area is at the top of the hierarchy of housing change areas. Development is to provide for shop top and apartment style living in higher density mixed use developments.
Clause 21.06 encourages development to respect and contribute to the desired character of an activity centre in a manner that supports varying degrees of housing change.
Clause 21.08 refers to the Ivanhoe major activity centre. It confirms the centre is a preferred location for growth in housing, commercial activities and community facilities.
The site is within precinct 5 of the Ivanhoe Framework Plan, predominantly applicable to the properties that front Upper Heidelberg Road. The vision for the precinct is:
[33]
Upper Heidelberg Road will remain the core of the activity centre and its historic buildings and unique streetscapes are central to the desired character of the area. There will continue to be a focus of retail activity at the ground floors of the valued two storey facades, with upper level development setback from Upper Heidelberg Road. Offices and housing will add vibrancy.
[34]
Strategies that are relevant to this review include:
Protect the valued 9 metre (two storey) heritage streetwall of Upper Heidelberg Road and allow extensions to 15 metres (four storeys) setback behind the street wall.
Have a preferred maximum height of 15 to 21 metres (4 to 6 storeys) throughout the centre.
In addition to preferred heights, DDO11 includes preferred setbacks for storeys above 9 metres. The setbacks shown on the precinct plan refer to setbacks A and K for larger properties in commercial zones in Precinct 5.
Setback A refers to the street boundaries including Upper Heidelberg Road. Setbacks are to be 4.5 metres or 3 metres if the property abuts a laneway.
Setback K refers to the south boundary where a specific distance is not recommended, but the setback should:
[35]
provide opportunities for outlook amenity privacy and development potential relative to the abutting property.
[36]
The review site is within a heritage place and is affected by a Heritage Overlay (HO90-Ivanhoe Shopping Centre). The statement of significance for the Ivanhoe shopping centre is:
[37]
The Ivanhoe shopping centre is of local historical and social significance. It is a traditional shopping strip sited on one of the two earliest thoroughfares in Heidelberg and represents a range of commercial building forms, including some from the 19th century, but is predominantly from the period 1915 to 1940.
[38]
The precinct has been the site of commercial activity since Greenways Ivanhoe Hotel commenced near here in 1854. Its character, however, is dominated by the austere commercial style which preceded and followed World War 1. The shopping strip is a dominant part of Banyule's urban fabric and, of the two largest shopping centres, the other being Burgundy Street it is by far the more homogenous.
[39]
The built fabric of Ivanhoe shopping centre comprises a mix of one and two storey shops on both east and west sides of the street. The original verandahs been replaced with cantilevered awnings in the 1920s and 1930s, some of which retain their pressed metal undersides, that have been mostly altered in the late 20th century. The earlier buildings are generally of red brick construction with rendered trim whilst later into war, buildings are generally of cream and manganese or clinker brick construction.
[40]
The shops almost all have parapeted roofs generally plain or stepped. They are in a variety of styles, including interwar Tudor revival, modernity and Spanish mission, as well as a plain red brick commercial style circa 1910.
[41]
The building on the review site has no heritage value and is a non-contributory building.
There are contributory heritage buildings near the site including the church to the south and the buildings on the opposite corners of the intersection of Upper Heidelberg Road, Seddon Street and Waterdale Road.
The Uniting Church building at No.1-19 Seddon Street, adjoining to the south is within a site specific Heritage Overlay HO183. The statement of significance describes the church as:
[42]
Comprising an interlinked group (of buildings) with a substantial frontage to Seddon Street. Styling varies across the buildings, however they are all linked by similar use of face brick and the use of Gothic design elements in a transitional and free style. The uniting church is a prominent landmark[6].
[43]
The church consists of buildings or elements of buildings constructed from 1903, 1909, 1914 and 1925 and later. The buildings and a conifer tree on the site are of local significance. The contemporary building and the car park are not significant.
The relevant purposes of the Heritage Overlay are to implement policy and to:
[44]
Conserve and enhance heritage places of natural or cultural significance.
[45]
To conserve those elements which contribute to the significance of the heritage place
[46]
To ensure that development does not affect the significance of the heritage place.
[47]
Planning policy is consistent with the purposes of the Overlay. Clause 15.03 encourages development to respect places with identified heritage values and to create a worthy legacy for future generations. It seeks to maintain and enhance an appropriate setting for heritage places.
Clause 22.06 encourages development in heritage places not to be visually intrusive and to conserve the setting of heritage places. New development is to be readily distinguishable from the heritage fabric, and to be a secondary element in a streetscape and it responds to views.
Part 3 General Requirements of Schedule 11 provides that:
[48]
If there is any conflict between this schedule and the requirements and objectives of the heritage overlay, the provisions of the heritage overlay take precedence.
[49]
Ms Heggen provided expert evidence as to whether the fourth storey should be deleted. It was her expert opinion the fourth storey is appropriate as it complies with the directions provided by the previous Tribunal and it largely complies with the setbacks required by DDO11. She gave weight to the setback of the front of the upper storey that she says will make it recessive in views along Upper Heidelberg Road. It was her opinion the upper storey would not detract from or obscure views of Melbourne's CAD from Upper Heidelberg Road. It was also her opinion that applying the height and setbacks in DDO11 in a doctrinaire manner would unreasonably compromise the site's capacity to deliver dwellings that could contribute to housing diversity and activity centre objectives. She thought that would be a poor planning outcome.
Ms Baker provided expert heritage advice. It was her opinion the fourth storey would not adversely affect the heritage place. She thought the building comprises good quality design because of its curvilinear forms, muted colour and materials palette and contemporary architectural character.
She thought the building would complement the heritage place. The two storey podium establishes a link in scale with the two storey streetwall and the upper storeys would be visually recessive.
She thought the key heritage matter is whether the fourth storey would have an impact on the heritage place. She was satisfied it would have little impact due to the buffers provided by the streets. She was satisfied that the building would be visually recessive and integrated relative to the foreground heritage streetscape. She observed that the building does not modify any existing heritage fabric.
With regard to the church to the south, she thought the fourth storey would have little impact as it would be separated from the church by the contemporary hall, and it is stepped back. The church presents a robust and proud frontage to Seddon Street that would not be diminished or overwhelmed by the top storey. She thought the church would continue to have a prominent presence and it has high architectural quality that ensures it will continue to stand apart from and not be dominated by the nearby modern building.
The council's heritage adviser also concluded the fourth storey is acceptable provided it has greater setbacks to the street boundaries.
[50]
Why do I consider the fourth storey to be acceptable?
[51]
The responsible authority acknowledges the mixed use development is highly consistent with many of the broader planning and heritage objectives. However, it says the fourth storey would be prominent in the streetscape because the street abuttals enable it to be highly visible.
It also says DDO11 has been recently introduced into the scheme and it should be supported, and given the opportunity for its controls to influence the emerging character of the centre. It says a mixed use four storey building meets the aspirations of State and local policy and would comfortably fit into the various streetscapes.
Mr Fyfe and Mr Willis also thought the fourth storey should be deleted. They agree with the council that it would be unduly prominent. They agree with the responsible authority that approving a development that does not comply with DDO11 would set an undesirable precedent and would undermine a new and untested planning control.
I am satisfied that the proposed five storey building is appropriate in this site. I have come to this view for the following reasons.
Firstly, as this is a correcting repeat appeal I should give great weight to the design response to the previous Tribunal's findings. The Tribunal found the previous building would be unduly dominant, and it should be more recessive.
I think it has responded to these findings by reducing the height of the streetwall, the height of the building and increasing the setbacks to its boundaries. The upper levels of the building will be recessive due to the interplay of height, setbacks and materials.
Secondly, it delivers the planning objectives sought by activity centres policy. It provides services to the community, employment opportunities and three bedroom dwellings that provide genuine choice for a wide range of households. It also activates the frontage to the street. I think removing two dwellings from the development would be contrary to policy that regards Ivanhoe as one of the preferred centres in Banyule that is to accommodate new dwellings.
The parties disputed whether the changes introduced into the scheme through amendments VC110 and VC134 change the planning policy mix, particularly the introduction of clause 11.06. It is my view that the amendments increase the onus on higher and middle order activity centres to accommodate additional dwellings to achieve broad housing, 20 minute neighbourhood, sustainability and compact city objectives. I agree that it is not an open slather, anything goes approach, and development must fit its context in terms of the preferred character as defined in the scheme by planning controls and policy and the strategic context.
[52]
Should the car parking spaces be retained and allocated to the office use?
[53]
If the fourth level is deleted, Condition 1(c) requires the parking that would have been allocated to the dwellings on that level to be allocated to the office use(s), thereby reducing the overall reduction of parking in the development.
As I have decided that the fourth storey is acceptable and should be retained in this development, Condition 1(c) is redundant and should be deleted.
[54]
Should an s173 agreement be required to manage waste removal?
[55]
Condition 8 generally requires that unless otherwise agreed in writing the owner must enter an agreement pursuant to s173 of the Planning and Environment Act 1987 that advises the occupants of the building that waste collection will be provided by a private waste collection.
The responsible authority says the requirement ensures that the various occupants in the building will be made aware that their waste will be collected by a private contractor rather than the council. She says the condition is routinely applied to permits for multiple dwelling and other developments that will not be serviced by the council. She says the agreement on title is the best mechanism to alert the occupants of the private collection service.
Ms Orrlov agrees that the condition provides discretion for other arrangements to be agreed with the council, although the parties observed that the council rarely accepts alternate arrangements.
Ms Bisucci says the requirement for an agreement on title is cumbersome, costly and onerous. She says that the waste management plan required by Condition 6 is sufficient to ensure the orderly collection of rubbish, and that plan would be implemented by the Owners Corporation to which all occupants belong.
I agree with the responsible authority that the various occupants of the building are likely to have varied waste collection needs and expectations. It is probable that if the waste collection service is inadequate, they will turn to the council to utilise its services or to remedy any shortcomings. The agreement on the title provides all parties with the certainty as to who is responsible for this service.
I am not persuaded that for a development valued at several million dollars, the preparation and registration of an agreement would be onerous in time or cost, and the long term benefit of clarity of the responsibilities outweighs those minimal costs.
[56]
For the reasons explained above, the decision of the responsible authority is varied. I will order that the preamble of the permit be amended and Conditions 1(b) and 1(c) be deleted.
[57]
[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.
[6] City of Banyule Heritage Citation Report 9 March 2012 Hermes No.124153
Parties
Applicant/Plaintiff:
Caramar Holdings Pty Ltd
Respondent/Defendant:
Banyule CC [2017] VCAT 1733
Legislation Cited (1)
Environment Act 1987
Cases Cited (1)
Caramar Holdings Pty Ltd v Banyule CC [2017] VCAT 1733 (25 October 2017)
AI Analysis
Outcomeappellant
Disposition:
The Tribunal varied the decision of the responsible authority: it ordered that planning permit P1145/2016 be amended by deleting Conditions 1(b) and 1(c) (so the fourth storey remains and no reallocation of parking is required); other permit conditions were renumbered accordingly; the responsible authority was directed to issue a modified permit in accordance with the Tribunal's order.
The Banyule Network of Uniting Churches owns the Uniting Church on the adjoining land to the south. It says the fourth (top) storey could prejudice opportunities to redevelop the community hall on its land. Mr Fyfe also supports the council's decision and says the development is unduly tall and would undermine the integrity of the planning framework for the Ivanhoe activity centre.
The applicant says the mixed use development would provide opportunities for businesses and households to locate within the Ivanhoe major activity centre. He says the fourth storey would comfortably fit into the emerging character of the centre. He says the fourth storey would contribute to dwelling diversity, it would provide acceptable amenity to neighbours and future residents, and it would not prejudice redevelopment opportunities.
The council says that if the fourth storey is deleted, the cars that would have been allocated to the dwellings on that level should be reallocated to the office uses. The applicant says the condition is unnecessary as the fourth storey should not be deleted.
The applicant says an agreement under the Planning and Environment Act 1987 is an onerous way to manage waste collection. The council says it is necessary to ensure that all parties understand their waste will be collected by a private contractor rather than the council.
I must determine the following key issues in this matter:
What is my approach to this review?
Should the fourth storey be deleted?
Should the car parking spaces be retained and allocated to the office use?
Should an s173 agreement be required to manage waste removal?
I must decide whether a permit should be amended and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Banyule Planning Scheme, I have decided to vary the decision of the responsible authority and amend the preamble of permit P1145/2016 and delete Conditions 1b and 1c. My reasons follow.
Thirdly, it is a highly attractive design. I find the two storey streetwall and the upper curvilinear form and the materials contribute to a very stylish building. I think the podium brickwork references the primary materials along Upper Heidelberg Road and the art deco motif. The cladding above would be lightweight and recessive. I think it would make a positive contribution to the appearance of Upper Heidelberg Road. I think deleting the fourth storey would make the building squat and less attractive. Changing the top level would detract from a highly integrated design.
Fourthly, I think the building would comfortably sit in the various streetscapes and greater setbacks to the top storey are not required. Viewed along Upper Heidelberg Road from the southwest and the northeast, the top storey will be visible above the two storey streetwall, but it will be recessive because it will be setback six metres behind the primary streetwall, it will have a curvilinear form and it will have a subtle, nuanced form. There is no dominant cap or feature that demands attention or that draws the eye from the primary views along the street. It will also sit in a streetscape of taller buildings behind it in both views, and hence will not appear as an isolated and therefore prominent silhouette in the skyline.
I accept that the approved building will be visible from Waterdale Road for the short distance between Upper Heidelberg Road and Livingston Road. I accept that the building will obscure views of the northern side of the church. I think that the fourth storey makes little difference in these views. The approved building obscures the church and the fourth storey will make no difference to that outcome.
I think that it would have very limited visibility in views from the south due to the curved alignment of the streets, vegetation in the public and private realms and the prominent church.
I agree with Ms Heggen that applying the heights and setbacks in DDO11 as blunt and inflexible mandatory controls would be contrary to performance based planning. I find there are no compelling reasons arising from DDO11 or the site's context that lead me to conclude the fourth storey is contrary to its design objectives.
Fifthly, and for similar reasons as above, I am satisfied that the fourth storey would not detract from the heritage place. The front wall would be setback nearly six metres from Upper Heidelberg Road. This setback would place it behind the two storey streetwall along the street, and make it peripheral in views along the street.
I agree with Ms Baker that the church has a prominent appearance and the building behind it will not detract from its attractive form or its cultural or historic significance. I agree with her that the church's significant fabric is its frontage to Seddon Street rather than the bell tower, hence the height of the proposed fourth storey above the bell tower does not detract from the heritage place.
I am also satisfied that the width of the streets and the setbacks of the fourth storey will not detract from the other heritage buildings that are proximate to the review site, including Nos.151-153 Upper Heidelberg Road, No.143 Upper Heidelberg Road and No.10 Seddon Street. Like the church, these buildings have notable architecture and robust materials and their proud and prominent place in the streetscape will not be diminished by the fourth storey.
I think the building enhances rather than limits the redevelopment opportunities of the church hall. The building provides a four storey wall against which future building can be constructed. The 2.2 metres setback that is provided to the church property to the south is adequate. The setback provides the opportunity for the upper levels in the church hall site to include north facing windows for daylight and solar access, and to place secluded open space along that boundary is required, without having to provide substantial setbacks on its own site.
I am satisfied the fourth storey has a high level of compliance with the general design objectives of DDO11 and the specific design objectives of precinct 5A as follows:
It contributes to a podium-tower building typology
It would not be unduly bulky or visually intrusive
The taller element would be located to enable a transition in height to surrounding lower scale buildings
It would be a well-designed and integrated building
It would be a high quality contemporary design
It is a larger scale development on a larger site
It takes advantage of long range views
It does not adversely affect the heritage significance of nearby heritage places
The colours, materials and finishes complement the streetscape and nearby church
The upper level provides visual interest through its curvilinear form and balconies
Does not interrupt or screen glimpses of Melbourne's CAD from the public realm (Upper Heidelberg Road)
It provides setbacks that enable the future dwellings on the adjoining land to the south to be provided with acceptable amenity
Finally, I do not consider that it would set a precedent that would undermine the recently approved DDO11. All developments are assessed on their design response to the features of the site and its context, including the planning policy context. This development responds to the particular site constraints and opportunities of a complex site. Its unique shape and circumstances prevents it being a template that can be crudely pasted onto other sites.