Construction of a four-storey apartment building plus basement car park accommodating 23 dwellings together with 23 car spaces and bicycle racks.

Application for review under section 77 Planning and Environment Act 1987.

Clause 32.01-4 (construction of two or more dwellings) and Clause 52.06 (Dispensation from car parking requirements).

Clauses 11.01-2, 11.04-2, 11.04-4, 15.01, 15.02 and 16

The land and its environs are described in the Tribunal's decision in Lafferty & Others v Whitehorse City Council and Conlan [2012] VCAT 957. That description has not changed.

1. This is an application under s 79 Planning and Environment Act 1987 by Greg Conlan to review the failure of the Whitehorse City Council to grant a permit within the prescribed time to construct a four storey apartment building containing 23 dwellings with basement car parking for 23 cars on land at 21-23 Barkly Terrace, Mitcham.
2. Subsequent to the lodging of the application for review the council resolved that it would have refused the application notwithstanding the report of its planning officer recommending support subject to conditions including a condition requiring the deletion of Level 4 and one unit from Level 3.
3. The application is opposed by a large number of residents most of whom reside in the general neighbourhood of the subject land. They were represented at the hearing by one of their number, Mr Niall Baird.

1. An earlier proposal to construct an apartment building on the subject land came before that Tribunal in Lafferty & Others v Whitehorse City Council and Conlan[1]. In that case the responsible authority had decided to grant a permit for what was described as a part 3, part 4 storey apartment building, that description the result of part of the basement car park being above ground because of the slope of the land.
2. An appeal by resident objectors was upheld by the Tribunal on architectural and urban design grounds. The Tribunal was:

... supportive per se of the review site (with the right design) being capable of absorbing a substantial multi-level building generally of the type proposed here.

1. However, the Tribunal, to use its own colloquialism, considered the design to be too bold and "in your face" in its presentation to Barkly Terrace.
2. The Tribunal was critical of the verticality of the design with the Barkly Terrace façade rising straight up to the third storey. The Tribunal suggested that because the proposal was the first intrusion of a multi-storey apartment development into the area considerations of neighbourhood character required:
   • more polite/restrained contemporary architecture with greater horizontal articulation (taking a design cue from the strong horizontal design features of the nearby existing dwellings); and
   • more sympathetic front-facing features such as balconies which will assist in making the building more recessive when viewed from the public realm and a more coherent proposed use of colours/finishes.
3. The Tribunal made a number of relevant findings.
   • It found that there was strong policy support for the proposal having regard to the location of the land in the Mitcham Activity Centre.
   • This support was "starkly reinforced" by the interface of the subject land with commercial development to the north along Whitehorse Road, particularly the three storey office building immediately to the north.
   • The Tribunal acknowledged some conflict in local policy between encouragement of high densities in this location and the 2008 Structure Plan showing the land as part of an area "with little change likely". It expected the council to give priority to resolving this discrepancy.
   • The Tribunal found that the provision of off-street parking was adequate for the 21 dwellings proposed.
4. In relation to height the Tribunal said (at para 20):

[20] When viewed purely in isolation, I do not see it as a fatal problem that the maximum height of the new building would be between 11-11.2 metres. As mentioned, views of tall buildings are already part of the character of this area. However I also acknowledge that if there are other issues/problems with the appearance of a new building, the extra height above the 10 metre preferred ResCode height benchmark comes into play[2].

1. The present application therefore falls to be considered as a repeat appeal.
2. The principles governing repeat appeals are now well established (Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675 and Lifestyle 104 Pty Ltd v Whitehorse CC [2014] VCAT 907). The decision in Lifestyle 104 was handed down as recently as 25 July 2014.
3. The Tribunal has drawn a distinction between "classic repeat appeals" and "correcting repeat appeals". Classic repeat appeals are where an applicant makes little change to the development and is seeking either to forum shop or simply to wear down the opposition. On the other hand correcting repeat appeals are where the Tribunal has refused an application but indicated how changes to the proposal might make it acceptable, and the applicant has put forward a new proposal that includes those changes. In this type of case the Tribunal said in Benc v City of Doncaster and Templestowe, Appeal No P86/2205:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.

1. The principles to be applied in such cases were outlined in Reichert v Banyule CC[3], described in subsequent Tribunal decisions as the "Reichert principles". The Tribunal should consider whether there have been:
   • significant changes in the proposed development;
   • changes in the circumstances of the land and its surrounds;
   • changes in planning policy; and
   • changes in the interpretation of the facts or law relevant to the Tribunal's consideration
2. I would add the following gloss. The rationale underlying these principles is the same as founds the rule of issue estoppel, which prevents the ventilation of issues in respect of which a court has made a finding in other proceedings between the same parties. The rationale is that there should be consistency in decision making and encouragement of an end to litigation. This is particularly so in the planning area where it is very much in the public interest that there be certainty for both existing residents and prospective developers.
3. Accordingly a finding of the Tribunal should be interfered with in a subsequent correcting repeat appeal only if the application of the Reichert principles reveal significant changes since the first appeal, other than changes which respond directly to the Tribunal's earlier decision.
4. This means that the planning assessment does not commence with a blank canvass. Rather, the starting point of the assessment is the first Tribunal decision, and the inquiry is as to what changes, if any, have occurred.

1. The current proposal embraces the Tribunal's suggestions for changes by creating a presentation to Barkly Terrace which emphasises horizontal lines rather than the sheer verticality of the earlier proposal. The current proposal is also more recessive at the upper levels and includes features such as balconies facing Barkly Terrace. I consider that the project responds satisfactorily to the Tribunal's criticism in the first appeal, and I accept the evidence of James Holdsworth, an experienced architect and urban designer, in this regard.
2. However, the current proposal makes other significant changes. A fourth floor has been added, and two additional dwellings have been included. The height of the building has increased from approximately 11 metres to 13.4 metres. None of these changes enjoys a mandate from the earlier Tribunal decision. The council's planning officer has taken issue with the additional level. These additional changes must be assessed in the light of the current planning controls and policies, and the urban design factors which underlie the previous decision.

1. The subject land was zoned Residential 1 when the Tribunal considered the matter in 2012. Since then the land has been placed in the General Residential zone by Amendment VC116 which introduced the new residential zones to the metropolitan area. The land to the north is in a Commercial 1 zone.
2. A specific purpose of the General Residential zone is "to encourage development that respects the neighbourhood character of the area". The neighbourhood character of the area in this case is one of single storey detached houses. The residential neighbourhood is a promontory extending west towards the core of the Mitcham Activity Centre with higher scale (three storey) commercial development to the north and the railway line to the south. It is arguable that the proposal does not respect the existing residential built form.
3. However, the council quite correctly informed the Tribunal that the current zone is really a default position that has been taken pending final decisions as to which of three new residential zones should be applied to this area. This dilutes the strength of the argument based on the zone purposes.

1. The planning policy set out in the Whitehorse Planning Scheme remains the same as it was at the time of the earlier Tribunal decision. The Tribunal found that there is strong strategic support for more intensive use of the site. The Tribunal said (at para 7):

... Under State planning policy, there is an overt encouragement (with the right design) of the more intensive use of land within activity centres (as is the case here), in the interests of making better use of well serviced land, so as to promote urban consolidation that will reduce Melbourne's sprawl at its edges.

1. The State policy is underscored by the LPPF:
   • Clause 21.06 (Housing) identifies three categories of change in the municipality, being minimal change, natural change and substantial change. The policy encourages a wide range of housing types and directs higher density housing to specific areas, including activity centres, and areas with excellent public transport and shopping access. As mentioned, the subject land is in the Mitcham Activity Centre.
   • Clause 22.03 (Residential Development) locates the subject land in an area of substantial change. The objectives of the policy in relation to areas of substantial change include:
     • Encourage the following forms of housing in Substantial Change Areas:

• Provide a range of dwelling types, sizes and tenures, including affordable housing, in larger developments.
• Create a new, higher density urban character in areas located away from sensitive interfaces.

1. Clause 22.06 (Activity Centres) requires regard to be had to the Nunawading MegaMile Major Activity Centre and Mitcham Neighbourhood Activity Centre Structure Plan. The Structure Plan locates the subject land in an area of "existing higher density housing with little change likely". This is a curious description of the subject neighbourhood which has little, if any, higher density housing. The observation "with little change likely" must stand or fall on the accuracy of that description.
2. In the earlier decision the Tribunal referred to this "discrepancy" and encouraged the council to give priority to resolving it. Unfortunately what has occurred since has exacerbated rather than resolved the situation, and I will now turn to this.

1. On 28 April 2014 the council adopted Amendment C160 to the Whitehorse Planning Scheme together with the Whitehorse Housing Neighbourhood Character Review 2014.
2. The proposed amendment would retain the subject land in the General Residential zone and designate it within Schedule 2 - Bush Suburban Precinct 2. It is significant that in this precinct there would be a mandatory maximum height of 10.5 metres (11.5 metres on land with a slope of more than 2.5 degrees) and a recommended site coverage of 40 per cent.
3. The Housing Framework Plan in proposed clause 21.06 locates the site in a Natural Change Area which is described in the responsible authority's submission as:

Areas designated for modest housing growth in a variety of housing types, including medium density housing (no apartments) provided they achieve the preferred future neighbourhood character. (Tribunal underlining)

1. The question is what weight should be given to this proposed planning scheme amendment. The amendment has been put forward under s 20(4) Planning and Environment Act 1987 and has therefore not been the subject of the normal statutory process for a planning scheme amendment, including an invitation for submissions from interested parties and the opportunity for scrutiny by an independent Ministerial Panel. The same question was addressed by the Tribunal in Lifestyle 104 at paras 30 - 33. The Tribunal said (at paras 32 - 33):

[32] ... At this point in time, it is unknown what will become of the Council's request to the Minister to prepare and approve Amendment C160 which, if approved, would rezone the land to NRZ and alter the policy setting. There is, therefore, no certainty that this will occur. Given this, we agree with the Applicant's submission that, at its highest, Amendment C160 is adopted Council policy to which we can have regard in making our determination. This is in contrast to the higher degree of weight which could be accorded to a planning scheme amendment which had been adopted by the Council following completion of the normal authorisation, public exhibition, and panel processes.

[33] What this means is that, in making our findings, we are able to give some regard to the Council's vision for this area as expressed through proposed Amendment C160, but we must place greatest weight on the existing Planning Scheme policies and controls.

1. The council sought to counter this by pointing out that the amendment has been the subject of extensive community consultation and revision over a number of stages. However this type of informal process is no substitute for the prescribed statutory procedures including consideration of the proposed amendment by an independent expert panel appointed by the Minister. Community consultation often tends to support the status quo which may not be what the proper planning of the municipality requires in the metropolitan context.
2. In the opinion of the Tribunal there is a clear conflict between proposed Amendment 160 and State and Local Planning Policy as it is currently expressed in the planning scheme. The amendment appears to fly in the face of State policy to encourage higher density residential development in activity centres and in proximity to railway stations in order to maximise utilisation of existing infrastructure in pursuit of urban consolidation objectives. This is a conflict that could usefully be brought to the attention of the Minister in his consideration of the proposed amendment.
3. Ultimately the Tribunal must give preference to planning policy as expressed in the planning scheme. However, it should also be cautious not to pre-empt proposed changes to that policy which have been adopted by the planning authority before a final decision is made in relation to those changes. In this case this is particularly relevant in relation to the height of the proposed development.

1. The current proposal adds a fourth storey and two additional dwellings to the proposal previously before the Tribunal. These changes derive no support from the earlier decision, which simply found that the height, at between 11 and 11.2 metres was not a "fatal problem".
2. The height now proposed, which is 13.4 metres with a lift overrun of 600mm is significantly higher than the earlier proposal. ResCode now applies to four storey multi-dwelling development although not to the instant case which falls with the transitional provisions. The recommended height under ResCode would be 10.5 metres, and although technically not applicable provides some indication of the building mass that would be appropriate. The proposed height is well in excess of the ResCode standard. Further, the proposed height substantially exceeds the mandatory height limit of 10.5 metres proposed by Amendment C160.
3. The Tribunal's accepts Mr Holdsworth's opinion that the height is acceptable from an architectural perspective. However, the question is what is an appropriate built form scale and mass for the first intrusion of multi-storey apartment development into this neighbourhood. The Tribunal considers that having regard to the factors mentioned above the proposed building is too high and should be reduced by one level. The Tribunal does not, however, agree that a dwelling should be deleted from Level 3 as recommended by the council planning officer.
4. It may be that if Amendment C160 does not ultimately proceed and the subject land is included in a Residential Growth Zone, which would not be an unexpected result of the current policy settings, the matter of height could be revisited. However, the Tribunal must deal with the position as it now exists.

1. The above findings leave the Tribunal with a choice of either refusing the application or granting a permit subject to a condition requiring amended plans which delete the fourth level.
2. The planning officer recommended the latter course. However, the surgery involved in the deletion of an entire storey is not minor and may well have design ramifications beyond simply lopping off a level. This is something that the architect of the proposal should be given an opportunity to reflect upon before a further proposal is put forward for approval.
3. For these reasons the application for review will be disallowed, and the Tribunal will direct that no permit issue. This should be no bar to the lodging of a further application which responds to this decision.

[1] [2012] VCAT 957

[2] Under the relevant ResCode Standard B7, whilst the normal ResCode preferred height benchmark is 9 metres, for sites with a natural ground level slope of over 2.5%, this benchmark is lifted to 10 metres.

[3] (1996) VCAT 44