[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[6] See also Zumpano v Banyule City Council[2016] VSC 420 [53] - [60]
[6]
[9] The applicant also submitted that it would not be opposed to the opportunity to redesign the proposal to include the third storey in roof space if I were to form the view that the '3rd storey in roof storey' expression is a mandatory requirement. I do not disagree with SM Code's determination in Eltham Outlook Pty Ltd v Nillumbik SC.
[7]
[10] Paragraph 6 of its submissions filed in response to the Tribunal's interim order of 5 March 2021.
[12] Levels taken from drawing titled 'Site plan - existing and demolition plan'.
Parties
Applicant/Plaintiff:
Gilbert
Respondent/Defendant:
Nillumbik SC [2021] VCAT 768
Legislation Cited (2)
Environment Act 1987
Civil and Administrative Tribunal Act 1998
Cases Cited (4)
Gilbert v Nillumbik SC [2021] VCAT 768 (14 July 2021)
Third party participation is limited to the permissions invoked under the SLO1.
However, it also remains that my assessment of this proposal is undertaken in the context of this application under s.79 of the Act which is deemed to be a refusal to grant a permit. It is also a hearing de novo.
This can be distinguished from the more confined circumstances confronting the Tribunal in Eltham Community Action Group v Nillumbik SC[2018] VCAT 1952 referred to by the applicant. That application for review was one brought under s.82 of the Act.
I am also mindful that clause 65.01 operates to require that before deciding on an application, the Tribunal standing in the shoes of the responsible authority, must amongst other things, consider:
the Municipal Planning Strategy and the Planning Policy Framework,
the purpose of the zone, overlay or other provision, and
orderly planning and the effect on the amenity of the area.
Notwithstanding, to the extent that third parties endeavoured to raise matters that were either not determinative or strayed beyond the scope of their review rights, I confirm that I made rulings on those matters as necessary during the hearing.
Landscape character objectives to be achieved in SLO1 are:
To recognise, protect and enhance the contribution provided by canopy trees, particularly native trees, to the existing and preferred character of the Eltham Town Centre.
To ensure that the health of existing canopy trees is not unnecessarily jeopardised by buildings and works.
To restrict removal of vegetation to the minimum required to allow land to satisfy its development potential in accordance with the Eltham Major Activity Centre Structure Plan (August 2004).
To ensure that new development contributes to the achievement of the preferred character through additional landscaping, particularly canopy trees.
To reinforce the indigenous planting regime within the Eltham Town Centre.
Both the Eltham Major Activity Centre Structure Plan (August 2004) and Eltham Town Centre Design Guidelines Parts A & B 2014 are reference documents in the Nillumbik Planning Scheme.
I have considered these reference documents and have found them useful in assisting my understanding of the strategic framework. They are however distinguishable from a planning policy in the Planning Policy Framework which must be taken into account and given effect to while policy guidelines must be taken into account but are not required to be given effect to by virtue of the operational provisions at clause 71.02-2.
The parties also referred to the new Eltham Major Activity Centre Structure Plan (2020) (the 2020 Structure Plan) which was adopted by council in July 2020. While I have also considered this document, and note that it provides directions for Council's latest strategic thinking, it is not a policy guideline and nor is it a reference, background or incorporated document in the planning scheme. It therefore carries limited weight.
Overall, from my reading of the various policies and controls that apply, it is apparent that more intense forms of development up to 3 storeys in height comprising residential and some commercial uses are clearly anticipated within this part of the Eltham MAC described as Precinct 2A.
This will inevitably bring about some change to the character of this area.
At the same time, it is also apparent that a transition is intended to be achieved between more intense development within the core commercial area (where a discretionary building height of 5 storeys exists) and adjoining residential areas which I take to mean residential areas beyond the activity centre's boundaries where one and two storey scaled development with greater vegetation coverage and a more spacious development pattern prevails. In the context of this site at the periphery of the activity centre, I find that character considerations assume a higher level of importance.
There was no dispute that the height of the proposal meets the mandatory maximum requirement under ACZ1. The more contentious matters relate to the scale and appearance of the built form and the acceptability of the proposed response to the strategic framework and the physical context.
The council submits that the design response has not achieved an acceptable balance between the achievement of a sensitive design response and dwelling yield. It says the built form is monotonous, too robust and imposing with too little if any meaningful setbacks when viewed from the street and neighbouring properties. It is further asserted that the extent of built form together with other features including the driveway and landscaping leaves insufficient space for landscaping to achieve an acceptable design response. The site's elevated position in the streetscape was said to accentuate these concerns despite the extent to which this development is cut into the site.
It was Mr Crowder's evidence that higher and larger built form is to be expected and is acceptable in this location if the strategic encouragement for additional development in the activity centre is to be properly realised. The centralised siting of the development with space for landscaping around the site's perimeter together with site coverage of 51% described as modest for this context were also said to be acceptable features. The architecture was also said to be a well resolved contemporary response with appropriate earthy toned materials and good levels of building articulation including the setting back of the two upper levels at the front of Unit 1 to create a recessed form when viewed from the street. The proposal was also said to respond to the site's sloping topography being cut in to the site to minimise building bulk with each dwelling also having stepped footprints that rise with the site's topography.
Submissions and evidence given at the hearing were supplemented by further submissions on the papers for which I granted leave to the council and applicant addressing the implications and application of the expression '3rd storey in a roof space' where appearing in the table in clause 5.2-3 in the Precinct requirements in Schedule 1 to the ACZ.
This was done in the context of the question of law determined some four years ago by SM Code in Eltham Outlook Pty Ltd v Nillumbik SC[2017] VCAT 675 (Eltham Outlook) noting that Schedule 1 to the ACZ has not changed since that time. Specifically the Tribunal found that:
Further, development expectations for this Major Activity Centre are not the same as what might be otherwise regarded as acceptable in other more urban locations throughout metropolitan Melbourne. New development is required to reference, respect and respond to Eltham's particular character including its naturalistic features of vegetation and topography.
As the Tribunal highlighted in 16 Taylor Pty Ltd v Nillumbik SC [2020] VCAT 673,[4] 'The ACZ is usually applied where more intense development is expected and where matters such as vegetation and landscaping are very much a secondary factor. However, the application of the SLO1 to the subject site along with the ACZ1 seeks a different approach.'
Thus, while the SLO1 unusually applies over land also within the ACZ1, an observation made by other divisions of the Tribunal,[5] this is deliberate.
To this I would add that while the inclusion of a statement of preferred character embedded within Schedule 1 to the SLO under the heading 'Statement and nature and key elements of landscape' is also unusual, it is an understandable approach in the context of the interplay between relevant planning scheme policies, controls and provisions.
I say this because:
as previously highlighted, policies at clause 22.01 and 22.12 for the assessment of neighbourhood character and medium density housing are not invoked for land in the ACZ1;
the SLO1 is a development based control and the statement of preferred character is capable of being applied to development involving not just residential but also commercial uses for which there is some encouragement;
the statement of preferred character may be considered whether a permit requirement is triggered under SLO1 or not due to the operation of clause 65.01 which allows a consideration of the purpose of the zone, overlay or other provision and any matter;[6]
for multi-dwelling developments, an assessment of objectives involving neighbourhood character under clause 55 variously call up decision guidelines[7] which require a consideration of:
The expression '3rd storey in roof space' in the table to clause 5.2-3 of Schedule 1 to the Activity Centre Zone relating to sub-precinct 2A is not a mandatory requirement. Pursuant to clause 37.08-5 [as it was then] of the Activity Centre Zone, a permit may be granted to construct a building that is not in accordance with this requirement.
In summary,[8] SM Code made this finding on the basis that this expression:
'does not come within the ambit of building height because it does not concern or relate to the distance between natural ground level and the roof or parapet of a building';
is more properly characterised as one that relates to 'the built form or appearance of a particular storey, being the final dot point of authorised subject matter for "design and development" requirements' referred to in clause 37.08-6 which may be included in a schedule to the ACZ. [My underlining]
In submissions made by the applicant and council it was common ground that the expression '3rd storey in roof space' where appearing in the table under the column headed 'Mandatory height (excluding a basement)' is not a mandatory requirement.
The parties also agreed that this expression should be treated as a discretionary requirement.
For the applicant's part, it variously submits that the council does not take issue with the 'general style' of the roof form, its profile and 'that the roof form as proposed is entirely acceptable.'[9]
The council's primary submission is that the 'overall intent of the Precinct Requirement is to reduce the bulk, the visual presence and impact of the third storey when viewed from both the public and private realms. This is achieved by ensuring the upper level has a smaller footprint than the levels below.'
The council further submits[10] that this expression has three other roles to play, namely to: