Victorian Civil and Administrative Tribunal|2005-10-27

Devtec v Moreland CC [2005] VCAT 2293 (27 October 2005)

Application under Section 80 of the Planning and Environment Act 1987 (the Act) to review conditions in a permit. Business 1 Zone. Car Parking. Increased setback at upper level. Conditions requiring ESD initiatives.

The order of the Tribunal is that the decision of the Responsible Authority is varied. The Tribunal directs that Permit No. MPS2004/0802 must contain the conditions set out in the Permit issued by the Responsible Authority on 25 May, 2005 with the following modifications:-

1 The preamble to the permit must be amended to read:

Use and development of the land for the purpose of a shop and eighteen dwellings and a reduction in the standard requirement for car parking and loading/unloading of vehicles in accordance with the plans substituted at the Victorian Civil and Administrative Tribunal on 24 October 2005.

2 Conditions 1(a), (b), (c), (m) and (r) and condition 4 must be deleted.

3 Condition 1(l) must be amended to read:

The provision of 1 car space for the two bedroom apartments; 1 car space for 8 of the one bedroom apartments and 1 space for the shop in accordance with condition 9 of this permit.

4 Condition 9 must be amended to read:

No fewer than fifteen (15) car parking spaces must be provided on the land with 1 car space for the two bedroom apartments; 1 car space for 8 of the one bedroom apartments and 1 space for the shop to the satisfaction of the responsible authority.

5 Condition 6 must be amended to read:

Prior to the occupation of the development, a plan must be submitted and approved to the satisfaction of the responsible authority, detailing all works to the land in front of the building along Sydney Road. The plan must include footpath treatments. When approved such plan will form part of the endorsed plans under this permit. The agreed plan must be implemented prior to the occupation of the development or as may otherwise be agreed with the responsible authority. The cost of all works associated with the endorsed plan must be borne by the developer/owner of the land.

6 Conditions 25 and 26 must be amended to read:

25. Prior to the commencement of development an Environmental Assessment Report must be .submitted to the Responsible Authority. The Environmental Assessment Report is be conducted by a competent professional practitioner with relevant experience in the field The Environmental Assessment Report must.

a) Specify the name and qualifications of the person who has conducted the Report,

b) Provide a site history to determine past uses of the site and surrounds. The site history will comprise

- Review of historical certificates of title and maps to establish past ownership

- Inspection of the site and viewing of historical aerial photographs,

- Discussions with the relevant historical society, Council and past site occupiers (where appropriate),

- Review of the Sands and McDougall Business directory indicating past land uses;

- Review of the published geological and hydrogeological information (including a search of the Victorian Groundwater Management System database), and

- A review of the EPA's list of Priority Sites Register.

If the site history investigations under (b) above determines that contamination on the site is likely then:

c) Include a further recommendation to the Responsible Authority as to whether the condition of the land is such that an Environmental Audit should be conducted.

26 If in accordance with Condition 25c) of this permit, an Environmental Audit is requited, prior to the commencement of construction or carrying out of works pursuant to this permit, or any works associated with a sensitive use, or where no works are proposed, prior to the commencement of the permitted use, either

a) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environmental Protection Act 1970 and provided to the Responsible Authority; or,

b) An Environmental Auditor appointed under Section 53S of the Environmental Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit and that statement must be provided to the satisfaction of the responsible authority.

Where a Statement of Environmental Audit is issued for the land, the buildings and works and the use(s) of the land that are subject of this permit must comply with all directions and conditions contained within the Statement.

Where a Statement of Environmental Audit is issued for the land, prior to the commencement of the use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988, and prior to the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions and conditions contained within the Statement have been satisfied.

Where a Statement of Environmental Audit is issued for the land, and any condition of that Statement requited any maintenance or monitoring of an ongoing nature, the Owner(s) must enter f an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987 Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, and prior to the certification of the plan of subdivision under the Subdivision Act 1988 All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the Owner(s).

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

1 This is an application to review conditions placed on a permit issued by the Responsible Authority for the construction of a four storey building and the use of the land for the purpose of shop and dwellings and a reduction in the requirement for the provision of car parking at 47 - 51 Sydney Road, Coburg. The conditions in dispute are:

Conditions 1(a), (b), (c), (k), (l), (m) (r) and (t) each of which relate to the preparation of amended plans.

Condition 4 which requires an ESD Management Plan to be prepared for the site.

Condition 6 which requires a plan to be approved showing streetscape works in front of the site.

Condition 9 which requires a minimum number of car parking spaces to be provided.

Conditions 25 and 26 which require an environmental assessment report to be carried out and, if found to be necessary, an environmental audit to be undertaken.

2 At the commencement of the hearing Mr O'Leary applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. Mr Luka did not oppose the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr O'Leary's request.

3 Also at the commencement of the hearing Mr O'Leary advised me that he would not be pursuing a review of conditions 1(c), (k) and (t).

4 Mr Luka advised me that the Council did not contest the deletion of condition 1(m) and that it was content with the suggested changes to conditions 6, 25 and 26.

5 All other conditions remain in dispute.

6 Oral reasons for the decision were provided by me at the hearing on 24 October, 2005. The following is a summary of the reasons provided by me at that time.

7 In giving these reasons for my decision, I do not propose to set out the details of;

•

the subject land and locality;

•

the proposal;

•

the planning scheme provisions that apply, or

•

the background to the Council's consideration of the permit application and decision.

8 The relevant background facts in relation to these matters were comprehensively set out in the written submissions and in Mr Luka's oral submission. I note that the relevant background facts were not disputed in any significant way. I have also had the benefit of an extensive array of photographs, plans and other material which have given me a very good understanding of the land and its context and the proposal.

9 In coming to my decision I have considered the matters raised in the submissions, the relevant matters under the planning scheme and legislation together with the details of the proposal for which a permit is being sought.

10 Condition 1(a) requires an amended plan to be submitted showing the deletion of level 3 and the provision of car parking in accordance with condition 9. I was advised that the intent of this condition was to reduce the height of the building and the number of dwellings from 19 to 13. The amended plans which I have substituted for the application plans, delete one level but the number of dwellings have been reduced from 19 to 18. The Council's desire to reduce the number of dwellings is based on car parking considerations.

11 In my view the provision of car parking is adequate and it is appropriate to exercise the discretion available to waive parking requirements having regard to the following considerations:

i

The site enjoys excellent access public transport.

ii

There is strong policy support in the planning scheme for increased residential densities in this location and the encouragement of developments which reduce car dependency and increase public transport use.

iii

The submission of a traffic report on behalf of the applicants as part of the planning permit application which provides empirical support for the proposition that what is proposed is acceptable. This report was not presented as evidence and I have not accorded the report the weight of expert evidence. It was however the only material presented to me which provides an empirical basis for an assessment and I am entitled to have regard to it. The data in the report was not disputed.

iv

The Council's policy for the provision of car parking in buildings over three storeys forms part of Amendment C43 which I was advised has been adopted and forwarded to the Minister for approval. The Amendment is therefore reasonably advanced and regard should be had to it. The policy requires parking to be provided at a rate of 1 space for each 1 or 2 bedroom dwelling and 2 spaces for each 3 or more bedroom dwelling. I make the observation that this policy reads as a standard or requirement rather than a policy. In any event it must be applied having regard to the circumstances of the individual application and the context of the site. In the event that good reasons exist to reduce a parking requirement, it ought to be reduced and a refusal to do so on the basis that the "proposal doesn't comply with policy", will rarely be sufficient to sustain a refusal.

12 Condition 1(b) requires the upper level of the building to be setback 3.0 m from the eastern, Sydney Road frontage. The amended plans provide for a setback of between 1.06m and 2.4 m. Condition 1(c) requires the setback to be used as a terrace (open space) to the adjacent dwellings.

13 I am satisfied that the amended plans achieve an acceptable presentation in the Sydney Road streetscape. The use of the proposed setback is also sufficient in terms of providing open space for the two top level dwellings. In arriving at these conclusions I have been influenced by the following considerations:

a

The policy impetus for increased residential densities and change in the built form of this locality, to which I have referred above.

b

The site is located within a streetscape which is perhaps best described as mixed. The site does not form part of a heritage area and the need for a recessive upper level, beyond what is currently proposed, is questionable.

c

The visual impact of the increased setback would be almost imperceptible.

14 Conditions 1(r) and 4 require the applicant to prepare an Environmentally Sustainable Development (ESD) Management Plan and to implement such plan in the construction of the building.

15 It is of some concern that the Council sought to defend the inclusion of these conditions, given that this is a matter which has been the subject of a very recent decision of Justice Morris and Member Rae (Hasan v Moreland City Council, [2005] VCAT 1931) in which the Tribunal directed that the conditions be removed from the permit. In that case His Honour and Member Rae found that the permit condition (the permit condition in the present case is identical) is an inappropriate mechanism by which to achieve the outcomes sought because the achievement of ESD principles in building design is a matter which is comprehensively addressed in the Building Code of Australia (BCA).

16 Mr Luka sought to distinguish the present case from the Hasan case on the basis that the current proposal is for a development of a much greater scale, the site is located within a designated urban village in which sustainable development outcomes are encouraged by the planning scheme, and the applicant had previously given a commitment to comply with the conditions.

17 Mr Luka referred to the following extract from the Hasan decision in support of his submission that the conditions are reasonable and appropriate;

............As a matter of logic, this does not mean that the planning system will always be an inappropriate mechanism to impose sustainability conditions.........

18 It is unfortunate that Mr Luka did not place the above comments in their full and correct context which I will now do;

One of the advantages of relying on the building regulations to effect energy and water efficient dwellings is that all dwellings require a building permit. By contrast, it is not usual for a single dwelling to require a planning permit. If environmentally sustainable design is to be incorporated into dwellings, it ought be incorporated into all dwellings. As a matter of logic, this does not mean that the planning system will always be an inappropriate mechanism to impose sustainability conditions. But if the planning system is to be used to impose the same requirements as those imposed by the building control system, one may ask: what is the point? And if the requirements are different, one may ask: is it fair to discriminate between different forms of housing? (my emphasis)

19 There is nothing about the circumstances of the present case which would persuade me that His Honour's findings in the Hasan case should not be applied here. In both cases the developments under consideration must comply with the ESD principles of the BCA and that is the appropriate mechanism through which the achievement of such principles should be pursued.

20 I note that His Honour included a cautionary note to the Council in his decision with respect to future applications. His Honour said;

As this case was in the nature of a test case, we would expect responsible authorities to cease imposing like conditions on planning permits. It would be undesirable if a future applicant was forced to incur costs to overturn such conditions. Of course, in such circumstance, the tribunal may need to make an order that the responsible authority pay such costs.

21 The permit which is the subject of the Application for Review currently before me was issued prior to the decision in the Hasan case which in part explains the applicant's stated intention to comply with the permit conditions. The Council's decision to continue to defend the inclusion of the conditions on this permit in the light of His Honour's decision is difficult to understand and I can only assume that the Council has yet to fully grasp the implications of that decision.

22 The Council would be well advised to heed His Honour's cautionary comments on the issue of costs.

23 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be varied and a permit issued in accordance with the attached Order.

Environmental Protection Act 1970

Environment Act 1987

Devtec v Moreland CC [2005] VCAT 2293

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Devtec v Moreland CC [2005] VCAT 2293 (27 October 2005)

Parties

Legislation Cited (3)