appellant. The Tribunal set aside the Responsible Authority's decision and directed the grant of a permit for four dwellings with basement car parking and roof decks, subject to specified conditions including...
Key principles
The Tribunal may proceed to determine the merits of a planning permit application even when a separate application to relocate an easement might later be necessary; doing so will...
The Tribunal, as a creature of statute exercising planning review jurisdiction, has no jurisdiction to determine the existence of common law public rights-of-way; such questions...
A development proposal must be determined by reference to the planning scheme and relevant statutory controls (zone, overlays and clauses). If a proposal complies with applicable...
Where part of land is in a Public Use Zone, an application by a party other than the public land manager requires written consent of the public land manager; if that consent is...
Issues before the court
Should the Tribunal adjourn the merits hearing pending an application to relocate a public access easement?
Does the Tribunal have jurisdiction to determine the existence of common law public rights-of-way over the land?
Plain English Summary
VCAT set aside Bayside Council's refusal and granted a permit for four two-storey dwellings (with basement parking and roof decks) at 1-3 & 4-5 Beach Road Hampton. The Tribunal refused to adjourn the merits hearing pending a separate easement-relocation application, held it had no jurisdiction to decide common law public rights-of-way, and found the proposal complied with the planning scheme (including DDO1 and Clause 55 objectives) in context. The permit was granted subject to conditions addressing easement alignment variation, acoustic wall setback and screening, graffiti prevention, an environmental audit and other standard requirements.
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Deep Dive
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What happened
Justelle Nominees sought a permit to develop four double-storey dwellings (with basement car parking and roof decks) at 1–3 & 4–5 Beach Road, Hampton, on a consolidated site partly in the Residential 1 Zone and partly in the Public Use Zone (VicTrack land). Bayside City Council refused the permit. The refusal reasons inter alia were non-compliance with setback requirements, conflict with neighbourhood character, visual bulk and scale, inappropriate use of public land, loss of amenity/public access and vegetation impacts from the public access easement.
Is the proposed development consistent with the planning scheme (including the Residential 1 zone, Clause 55 and DDO1)?
Can residential development be permitted on land partly in a Public Use Zone when the public land manager has given consent?
Cited legislation
1 cited instrument linked from this judgment.
The applicant sought VCAT review. Objectors and the council raised a preliminary procedural point: the hearing should be adjourned because a 3 metre public access easement traverses the site and the development, to be implemented as proposed, appeared to require relocation of that easement; the view was advanced that without an application to relocate the easement being dealt with concurrently the merits hearing might be futile.
VCAT (Senior Member Horsfall and Member Hewet) considered the preliminary submissions and refused to adjourn the merits hearing. The Tribunal held the merits could and should be heard because any application to relocate an easement can be determined by council and is subject to review at VCAT; proceeding would not deprive parties of rights on that separate matter but adjourning would unfairly prejudice the applicant given the late raising of the point (Preliminary Matters [6]–[13]).
On the merits the Tribunal inspected the site and considered the planning scheme. The Tribunal concluded the proposal complied with DDO1 height limits and met the objectives of Clause 55 in the context of the site, even though some schedule setback standards in the Residential 1 zone were not strictly met. The public land manager (VicTrack) had given written consent (required by Clause 36.01-3), so there was no procedural bar to considering development of that land. The Tribunal found that the proposal was consistent with state and local policies encouraging urban consolidation and housing choice, and that the proposal’s design, articulation and landscaping opportunities meant the neighbourhood character objective was achieved despite some encroachments into prescriptive setbacks (Basis of decision [5], [16]–[19]).
The Tribunal also emphasised that it had no jurisdiction to determine the existence of common law public rights-of-way, these are matters for the courts (Preliminary Matters [11]). Ultimately the Tribunal set aside Council's refusal and directed the grant of a permit, subject to a suite of conditions including a requirement to vary the existing easement alignment, the setback of the acoustic wall to allow landscaping and screening, environmental audit, traffic and parking management, graffiti removal and detailed landscaping and materials conditions (Order).
Why the court decided this way
There are several discrete strands in the Tribunal’s reasoning.
Procedural discretion to proceed despite unresolved easement relocation:
The Tribunal treated the easement-relocation issue as legally and procedurally separate. A relocation application can be made to council (clause 52.02), considered there, and its decision reviewed at VCAT. Proceeding on the planning merits would not prejudice that separate process. Delaying the merits hearing would unfairly prejudice the applicant, particularly because the request for delay was raised late (Preliminary Matters [6]–[13]).
The Tribunal also relied on general administrative law principles: council officers cannot bind future council decisions (Preliminary Matters [10]).
Jurisdictional limits:
The Tribunal declined to entertain submissions seeking declaration or finding of common law rights-of-way, as it lacks jurisdiction to make determinations of private law rights; its discretion is confined to statutory planning review (Preliminary Matters [11]).
Planning merits governed by the planning scheme:
The Tribunal applied the planning scheme as the governing statutory framework. Key points were compliance with the DDO1 height control (which the proposal met), the necessity to satisfy Clause 55 objectives and standards, and consideration of state and local planning policy promoting consolidation and housing diversity (Basis of decision [5]–[9]).
The Tribunal adopted a contextual approach to neighbourhood character: the site’s exposure (an 'island' between the railway and Beach Road) meant that some visual dominance was inevitable; the critical question was whether the objective of respecting neighbourhood character was achieved. On that question, the Tribunal concluded that two-storey height, articulation, spacing, landscaping potential and compliance with DDO1 and Clause 55 objectives produced an acceptable response even though precise setback measurements in the zone schedule were not always met (Basis of decision [16]–[19]).
Practical conditioning rather than refusal:
The Tribunal addressed amenity concerns (notably the 3.0 m acoustic wall abutting the railway and the risk it posed as a graffiti target) by imposing conditions: require the wall to be set back to permit planting on the eastern side, use absorbing materials, provide appropriate fencing during establishment, and other measures (Basis of decision [20]–[21], Order conditions).
Repeat appeals doctrine:
The Tribunal acknowledged prior VCAT decision in Brighton Beach Apartments v City of Bayside [2002] VCAT 236 which had rejected a different proposal on the same land. The Tribunal treated that decision as authoritative where appropriate but distinguished it because the prior proposal involved seven dwellings on a much smaller site whereas the current consolidated proposal was materially different (Repeat appeals [30]–[31]).
In sum, the decision married legal constraints (jurisdictional limits and planning-scheme requirements) with pragmatic, fact-sensitive assessment of built form and amenity, resolved potential conflicts by tailored conditions, and refused to allow a procedural technicality to prevent consideration of the substantive planning merits.
Before and after state of the law
Before:
The planning-review framework requires VCAT to decide matters in accordance with the planning scheme and confers on VCAT only statutory discretions. It was already established that VCAT cannot decide private law rights such as the existence of common law easements.
After:
The decision reinforces two practical points for practitioners in the Victorian planning sphere:
VCAT will exercise its procedural discretion to proceed with merits hearings even where related but discrete land-title or easement questions may subsequently arise, provided the separate question can be addressed by the responsible authority and is subject to review.
VCAT will apply a contextual, objective-based assessment of neighbourhood character (Clause 55 objectives and DDO controls) rather than a strictly literal application of prescriptive schedule setback numbers where the objective can be met in context.
This decision consolidates the Tribunal's approach to repeat appeals: earlier Tribunal decisions are followed absent material differences; where the proposal or circumstances differ materially, the earlier decision can be distinguished.
Key passages with plain-English translation
"We consider the tribunal has no jurisdiction to determine the issue of whether common law public rights-of-way exist over the land. These are matters for the courts." [Preliminary Matters 11]
Plain English: VCAT cannot rule on private-law matters like whether the public has a right-of-way; only courts can decide that. VCAT's role is to decide planning permissions under the planning scheme.
"I am satisfied that the applicable policy framework and the provisions of the zone and the DDO1 support the proposal." [Basis of decision 5]
Plain English: After comparing the plan with the statutory planning controls and policies, the Tribunal concluded the development fits within the planning rules and policies that apply to the site.
"The Tribunal's approach to dealing with repeat appeals ... in the absence of a material change ... the earlier decision ... is to be followed." [Repeat appeals 30]
Plain English: VCAT generally follows earlier Tribunal rulings on the same site unless the new proposal or circumstances are meaningfully different.
"The easiest and most effective solution is to require the wall to be setback ... to allow landscaping ... to provide a vegetated screen ... This will also assist in reducing the attraction of the wall to graffitists." [Basis of decision 21]
Plain English: Instead of refusing the project because of a blank acoustic wall, require the wall be moved back a bit and plant trees/shrubs so people cannot easily graffiti it, and so it looks better from the street.
What fact patterns trigger this precedent
This VCAT decision will be most relevant where:
An applicant seeks a permit for residential development on a site partly in a Public Use Zone with an existing public access easement that objectors say should remain in place.
Objectors or the responsible authority advance a late procedural argument that an easement-relocation application must be determined before or together with the planning merits.
The proposal involves roof-top/roof-deck features that trigger overlay permit requirements (e.g., DDO1), and there are neighbourhood character and setback disputes where actual objective achievement (Clause 55) is contested.
Earlier Tribunal decisions exist on the same site that refused prior, materially different proposals.
If the easement-relocation is capable of being determined separately by council (and reviewed at VCAT), and the planning merits can be assessed without determining private-law rights, this decision supports proceeding with the merits and resolving design and amenity concerns through conditions.
How later courts have treated it
As this is a VCAT decision, subsequent reliance would be in other VCAT panels and possibly in submissions to courts in appeals on points of law. The judgment explicitly applies established planning-adjunct doctrines: the repeat appeals doctrine (citing Amoco and earlier VCAT authority), and the administrative law principle about unfettered discretion by councils. Later VCAT panels confronting similar procedural attempts to stall merits hearings would likely follow Horsfall SM’s reasoning, they will look to whether the related land-title/easement matter can be determined independently by council and whether proceeding with merits would prejudice parties' rights in that separate process.
Practitioners should therefore monitor whether later VCAT decisions treat the present decision as persuasive on procedural adjournment questions and as confirming that VCAT will not resolve private-law easement disputes in the planning-review forum.
Still-open questions
The precise boundary between matters that are 'planning discretions' and those that are 'private law' remains practically important. Horsfall SM drew a clear line that VCAT cannot determine existence of common law rights-of-way, but subsequent cases will need to test the boundary when easement effects and planning impacts are tightly intertwined.
The decision to require variation of the easement alignment by condition (Order condition 1) raises procedural questions: to what extent can VCAT compel or condition the variation of third-party rights (e.g., VicTrack's land interests) without having adjudicated title questions? The Tribunal here imposed a condition requiring the easement be varied prior to commencement; scenarios where consent is withheld at council level may create implementation difficulties and potential legal challenges on condition-enforceability grounds.
The assessment of neighbourhood character by objective achievement rather than strict compliance with schedule setbacks is fact-dependent. This decision reinforces a contextual approach, but the margin by which an objective can be considered 'met' without strict compliance is still a matter for case-by-case determination and will create uncertainty for applicants and objectors.
The treatment of roof decks in DDO areas continues to be a recurring testing ground for amenity impacts, particularly overlooking and visual bulk from distant vantage points; subsequent authorities will need to refine how 'effective integration' and 'separation distances' are to be measured in practice.
Finally, the interplay between planning permissions and subsequent council decisions on easement relocation (including potential delays) raises questions about sequencing: where VCAT grants a permit conditioned on easement variation, but council later declines a relocation, remedial pathways, and the rights of the permit holder and objectors merit further judicial clarification.
Practical takeaway for practitioners: raise easement-relocation or title-based issues early if they are central to the viability of a proposal; otherwise, be prepared for VCAT to proceed on merits and to address design and amenity concerns through enforceable permit conditions rather than declining jurisdiction or adjourning.
Judgment (47 paragraphs)
[1]
Justelle Nominees v Bayside CC [2008] VCAT 233 (12 February 2008)
[2]
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Residential 1 Zone. Public Use Zone 4. Design & Development Overlay. Clause 52.29 Land Adjacent To A Road Zone, Category 1. Clause 55 Two or more dwellings on a lot. Dwellings (4x2 storey dwellings). Irregular Site (Area 1939 square metres). State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape. Landscape. Density. Building envelope. Private open space. Loss of views. Land abutting railway line. Use of public land. Graffiti opportunity.
[3]
M A Wise & P H Wise, Lisa Kempster, Craig James, John Owies, Paul Rapke, M I Marris, Vittorio Valenta, Philip Kostos, Ralph Boehm Brian Kewley, Annette Tomkins, Catherine MeKeon, Bob Murray, William Sanger, Peter Nagoreka, Carolyn Thompson, Stuart Johns, Jacqui Obrien, David J Liptrot, Matthew Young, Jennifer Lucas & Peter Lucas, Kay Grey, Peter Grey, Susan Worth, Noel Constance Sheard, Judith Thompson, Mary O'Connor, G and P Casasayas, Kerrie Henry, BC & MC Humphries, Roger M.G. Vial, Mr 0 & Mrs I. Sabin, Ralph A Boeam, Andrew Beck, David Robinson, Craig James, Alan Rosenberg, Gino De Biase, Anthea Feakes, Catharina Ackerman, C. R. Lynch, John G Blake, Susan Worth, Frank & Lois Brettell, Michael Logan, Iris K Davies, David A Brown, Thomas Doolan, Stacey Robinson.
[4]
Mr Richard Horsfall, Senior Member on question of law only.
The decision of the Responsible Authority is set aside. In permit application 2006/926 a permit is granted and directed to be issued for the land at 1-3 & 4-5 Beach Road, Hampton. The permit allows the use and development of the land for four (4) dwellings with basement car parking, roof decks in a Design and Development Overlay 1 and access to a Road Zone Category 1 in accordance with the endorsed plans and subject to the following conditions:
[7]
Prior to the commencement of the development the alignment of the existing easement affecting the land in Title Vol. 10726 Folio 473 shall be varied to accord with the alignment shown on the plans endorsed under condition 2.
Before the use and development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
(a) The acoustic fence along the rear (eastern) boundary adjacent to the railway line setback a minimum of 1.5 m with landscaping planted on the eastern side of the wall to provide a vegetated screen to the wall when viewed from Hollyrood Street.
(b) A wire mesh or other suitable (non-graffiti-prone) fence construction to the satisfaction of the responsible authority adjacent to the railway line between the railway line and the landscaping in front of the acoustic wall referenced in condition 1(a).
(c) All wall heights above ground level to be nominated on the plans.
(d) The plans to show appropriate signage identifying the pedestrian path (easement) as a 'public accessway' to the satisfaction of the responsible authority.
(e) Lighting to the satisfaction of the responsible authority, to be provided to the pedestrian path (easement) between Dwellings 2 and 3. The costs to be borne by the developer.
(f) All paving (except driveways) to be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the responsible authority.
(g) A schedule of external materials and finishes to be provided to the satisfaction of the responsible authority prior to the commencement of any buildings and works on the land. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing).
(h) All plant and equipment (including air conditioning units, heating units, hot water systems etc), which is proposed to be located externally, shall be identified on the plans and located to the satisfaction of the responsible authority. Such equipment should be located away from bedrooms or adjoining properties.
[8]
When approved, the plan will be endorsed and will then form part of the permit. Traffic and parking operations on and adjacent to the site during construction must conform to this endorsed plan.
[9]
Three copies of the plan must be submitted. The plan must include:
[10]
(a) the location of all areas on and/or off-site to be used for trade/delivery parking;
(b) owner's permission and any required planning permission for parking on other land;
(c) measures to discourage trades car parking in Beach Road.
[11]
The acoustic wall must be constructed of absorbing material to the satisfaction of the responsible authority.
All security alarms of similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
All external plant and equipment must be acoustically treated or placed in soundproofing housing to reduce noise to a level satisfactory to the responsible authority.
All pipes except down pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the responsible authority.
Provision must be made on the land for the storage and collection of garbage and other solid waste. This area must be graded and drained and screened from public view to the satisfaction of the responsible authority.
A truck wheel-wash must be installed and used so vehicles leaving the site do not deposit mud or other materials on roadways to the satisfaction of the responsible authority.
All roads/storage areas/external stockpiles/vacant areas must be (covered and) maintained to avoid dust nuisance to any residential area to the satisfaction of the responsible authority.
Before the use or occupation of the development starts, the area/s set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a) constructed
(b) properly formed to such levels that they can be used in accordance with the plans
(c) surfaced with an all-weather seal coat
(d) drained
(e) line marked to indicate each car space and all access lane
(f) clearly marked to show the direction of traffic along access lanes and driveways to the satisfaction of the responsible authority
[12]
Car spaces, access lanes and driveways must be kept available for these purposes at all times.
[13]
All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property.
Vehicular crossings must be constructed to the road to suit the proposed driveway/s to the satisfaction of the responsible authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the responsible authority.
Any security boom, barrier or similar device controlling vehicular access to the premises must be located a minimum of six metres inside the property to allow vehicles to store clear of Beach Road pavement and footpath.
Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the concept plan tabled at the hearing of the Victorian Civil and Administrative Tribunal on 3 December, 2007 (prepared by Mark McWha Landscape Architect, dated February 2007 Revision B) but amended to show:
(a) The relocation of the rear acoustic wall in accordance with condition 1(a) and landscaping planted on the eastern side of the wall to provide a vegetated screen to the wall when viewed from Hollyrood Street.
(b) a survey (including botanical names) of all existing vegetation to be retained and/or removed;
(c) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
(d) details of surface finishes of pathways and driveways;
(e) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
(f) landscaping and planting within all open areas of the site.
[14]
All species selected must be to the satisfaction of the responsible authority.
[15]
The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.
[16]
Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.
The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
Plans for the construction of the outfall drain must receive Bayside City Council approval prior to the commencement of the development.
Any paved courtyards/paths must be graded/drained to prevent stormwater discharge into adjacent properties.
Any seepage/agricultural drainage water must not be discharged directly to the kerb/channel.
Before the development begins, detailed plans (3 sets) indicating the method of stormwater discharge to the nominated 'Legal Point of Discharge' (and Stormwater Detention Systems where applicable), must be lodged with Bayside City Council's Street Services department for approval.
Car parking space must be designed to allow vehicles to drive forwards when both entering and exiting the property, to the satisfaction of the responsible authority.
Any redundant vehicle crossing must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the responsible authority
The developer must pay the full cost of all roadworks, drainage service relocation and any other associated costs, ie. all works to be completed at no cost to VicRoads.
The content of the signage (identifying the pedestrian path) and location to be determined by Bayside City Council and the costs to be borne by the developer.
This permit will expire if one of the following circumstances applies:
The development and use is/are not started within two years of the date of this permit;
The development is not completed within four years of the date of this permit.
[17]
The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
[18]
Mr Cicero called Mr L Trickey, town planner of Bosco Johnson, Mr T Biles, town planner of Message Consultants, and Mr M McWha, landscape architect.
[19]
Ms J Davis Barrister, appeared for C Lynch and made a submission on the preliminary matter only.
[20]
Ms J Lucas appeared on her own behalf and on behalf of P Lucas, N Sheard, M O'Connor, K Henry, A Tomkins, C McKeon, P Nagorka, G Connors & L Campbell, M Logan
[21]
Mr G Sabin appeared on his own behalf and on behalf of I Sabin, K Grey, P Grey, B & M Humphries, D Liptrot, M Playne, C Ackerman, A Rosenberg, R Vial.
[22]
D Robinson appeared on his own behalf and on behalf of S Worth, R Boehm, B Murray, C Thompson, S johns, M Young, M Wise & P Wise, L Kempster, C James, P Rapke, J Owies, D Hitchcock, M Marris, V Valenta, P Kostos, G DiBiase, J Blake, S Worth, F & L Brettell, I Davies, D Brown, T Doolan, S Robinson, A Beck.
[23]
This is an application to review the decision of the responsible authority to refuse permission for the construction of four dwellings at 1-3 & 4-5 Beach Road, Hampton. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
The proposal does not comply with the Bayside Planning Scheme setback requirements.
The proposal does not accord with the Bayside Planning Scheme Neighbourhood Character objectives.
The proposed development presents unreasonable visual bulk and scale.
The proposed development does not suit the purpose of the current public use zoning.
The proposed development presents unreasonable impact and loss of amenity to the general public.
The proposed development involves unacceptable detriment in terms of the loss of vegetation by the path from the railway.
[24]
At the commencement of the hearing the Tribunal considered submissions on preliminary matters raised by correspondence received prior to the hearing by the Council and an objector.
The Tribunal made findings that the hearing ought to proceed and provided oral reasons for those findings. The following is a summary of those reasons.
Council (by letter dated 29 November 2007) and the objectors have made a preliminary submission that the hearing of this application would be futile if it proceeded and submitted that it be adjourned to enable the applicant to make a permit application to relocate a 3m easement necessitated by the development, or that the current permit application be amended to include the relocation application, be advertised at the direction of the tribunal and the 2 matters heard together at a later date.
Mr Hewet and I, as a member who is a legal practitioner, have considered the submissions made by the parties on the preliminary question and we have come to a joint decision that the hearing of the merits application for review in this matter not be adjourned pending an application to vary the easement. We consider the merits application should proceed this afternoon as listed to commence at 2.15pm.
Our reasons are as follows.
Council and Ms Davis agree that there is no preliminary question of law, but rather a procedural issue whether the hearing of the application for review of council's decision to refuse a permit for the development should be delayed to take place concurrently with an application to vary the easement. We note in this context that Mr Cicero for the permit applicant has not sought (absent a decision on the preliminary point against him) to amend the permit application before to add an application to vary the easement. His client's preference is to make a new permit application to relocate the easement under clause 52.02 of the Bayside Planning Scheme. This which would enable that application to be fully advertised and notified to the public and give objectors n the opportunity the merits of that application, to object to the council, Then, depending on the council's decision the applicant or the objectors as the case may be could apply to VCAT for a review of the outcome.
All parties acknowledge that an application to relocate the easement can be determined by the council and its decision reviewed by VCAT. Thus the hearing of the planning merits of the proposal proceeding today will not prejudice any future consideration of the relocation issue ore deprive any party of rights on that issue.
[25]
The site has an irregular and broadly speaking triangular configuration comprising three parcels described for me by Ms Marshal as follows:
[26]
Land known as 1-3 Beach Street, which has an area of 707.28 m2 and is currently vacant. It has a frontage to Beach Road of 40.23m and was previously used and developed as a petrol filling station but is now vacant. A 3 m wide public access easement in the favour of the Council runs through the site. This easement intersects with the pedestrian crossing of the abutting railway line, and provides pedestrian connectivity between the residential area on the eastern side of the railway line and Beach Road to the west and the Port Phillip Bay foreshore beyond
2. Land known as 4-5 Beach Street which has an area of 583.23 m2 and which is currently occupied by a double storey dwelling.
[27]
Three parcels of Vic Track owned land which has an area of 312 m2. Railway Lot 97 is a triangular shaped lot located at the northern end of the site while Railway Lot 27 is a long, narrow lot which forms the eastern boundary of the site and runs parallel with the abutting railway reserve. Railway Lot 27 is bisected at about the mid point of the site by the public access easement.
As a consolidated lot the site has an area of 1588 m2.
The site was variously described to me as an island site sandwiched between the Sandringham railway line to the east and Beach Road and the foreshore to the west, and as a junction point with a highly visible gateway status. Both descriptions are appropriately applied to the site.
Apart from the dwelling located on no.4 Beach Road, the site is vacant with low growing coastal vegetation scattered across it and along its boundaries.
The eastern boundary of the site abuts the Sandringham railway line. Holyrood Street which is a residential street, abuts the eastern side of the railway line and is aligned generally parallel with the railway line for part of its length before veering away to the south east.
Beach Road which is an arterial road and is zoned Road Zone Category 1 forms the western boundary of the site. Hampton beach is located on the western side of Beach Road.
The Hampton Street Major Activity Centre is located a short distance to the east, and the site is located midway between the Hampton and Brighton Beach Stations.
[28]
It is proposed to construct four double storey dwellings on the site, above a basement car park.
Dwellings 1 and 2 are located toward the northern end of the site and share a single vehicular entry point off Beach Road. The northern most dwelling has a curvilinear form facing generally north and south. A west facing terrace is located at first floor level and a roof deck is also proposed. Dwelling 2 adopts a more regular form with a roof deck also proposed.
Dwellings 1 and 2 are separated from Dwellings 3 and 4 by the proposed relocated public access easement.
Dwellings 3 and 4 share a common vehicular access point off Beach Road. These two dwellings form a pair with a common boundary wall, and are effectively a mirror image of each other.
The dwellings have varying setbacks from Beach Road of between 3.4 to 8.9 m and from the railway line of between 2.8 and 6.3 m.
A 3.0 m high acoustic wall is proposed along the site's eastern boundary abutting the railway line.
Mr Biles described the architectural style of the dwellings as being contemporary, with each dwelling distinguished from each other but "clearly designed by the same architectural hand". I think that is an appropriate description.
[29]
Part of the site (1-3 and 4-5 Beach Road) is zoned Residential 1 under the Bayside Planning Scheme. The purpose of the zone is;
[30]
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
[31]
To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
[32]
To encourage residential development that respects the neighbourhood character.
[33]
In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.
[34]
A permit is required to construct two or more dwellings on a lot pursuant to Clause 32.01-4. A development must meet the requirements of Clause 55 and decision guidelines require consideration to be given as appropriate to the State and Local Planning Policy Frameworks and the objectives, standards and decision guidelines of Clause 55.
The Schedule to the Residential 1 zone specifies requirements with respect to minimum street setbacks, side and rear setbacks and front fence height.
Part of the site is zoned Public Use Schedule 4. The table of public land uses indicate that the land is designated for transport purposes, and the use of the land for the purpose of dwellings is a section 2, permit required use. A permit is also required to construct a building or to carry out works for any section 2 use.
A Design and Development Overlay Schedule 1 Building Height Control 1 - Coastal Areas (DDO1), also applies to the whole of the site. A permit is not required under the DDO1 under the following relevant circumstances;
A building with a building height of not more than 2 storeys* provided that each storey is less than 3.5m measured from the floor level to the finished floor level of the floor above or if there is no floor above, to the ceiling (excluding staircases, architectural voids and light wells).
Buildings which have a building height of not more than 6.0m.
These exemptions do not include a roof deck located above the second storey of a building. The proposal complies with these exemptions with the exception of the roof decks. A permit requirement is triggered under the overlay because of the incorporation of roof decks into the proposal.
A permit is required to create or alter access to a road in a Road Zone, Category 1. An application must be referred to Vic Roads. I was advised that that Vic Roads did not object to the application subject to the imposition of conditions on a permit.
In relation to the current proposal the state and local planning policy framework seeks to:
[35]
The pitched roof dwellings sit within established gardens that incorporated some coastal species plantings. Large front set backs, in combination with low to medium height front fences, provide the precinct with a spacious quality. In some streetscapes the frequent use of timber or light coloured render materials creates a sense of lightness to the streetscapes. Garages are set back behind the building line so as not to dominate the streetscape. Native and coastal species canopy trees and enhanced street tree planting, add to the casual coastal setting of the dwellings. Consistent street tree planting is adding to the cohesiveness of the area.
[36]
The Tribunal has previously considered an application for the development of seven dwellings on 1-3 Beach Road[3]. The Tribunal in that case affirmed the Council's decision to refuse the application. I will return to a consideration of the Tribunal's findings in that matter subsequently in these reasons.
[37]
The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I have inspected the subject land and its locality.
[38]
The principal issues which require my consideration in this matter are;
[39]
Whether the proposal is supported by the policy framework of the planning scheme, and the provisions of the zone and the DDO1
2. The acceptability of the proposal's design response to the preferred character of the neighbourhood.
[40]
Detailed design considerations including;
1. the treatment of the acoustic fence
2. the presentation of the development to the public access easement, and
3. concerns regarding the propensity for the acoustic fence and the walls abutting the public access easement to become graffiti opportunities.
It is clear that, based on the material available to me in the form of submissions, statement of grounds and objections to the application, the use and development of this land has a long and protracted history. In broad terms, it would appear that it is the view of the objectors that the subject land ought to be developed as public open space. Similarly the view was expressed that because part of the land is currently in public ownership, i.e. part of it is owned by a public corporation in the form of Vic Track, that land ought not be included as part of the application and should remain in public ownership. The relocation of the public easement is also a matter of some considerable concern to the local community.
I indicated to the parties during the course of the hearing, that much of the material which was sought to be presented to me with respect to these matters, is not relevant to the exercise of the discretions which are available having regard to the permissions required under the planning scheme. I am required to determine this application in accordance with the provisions of the planning scheme as they apply at the time that my decision is made. I have detailed previously what zones and overlays apply to the land and what permissions are required to be granted under the zones and the overlay. It is not open to me to make findings as to whether the land ought to be zoned Public Park and Recreation or any other zone for that matter. This is a matter for which the Council acting as the planning authority has primary responsibility, and I was not provided with any information that would lead me to conclude that the Council is initiating either the acquisition of the land and/or its rezoning to Public Park and Recreation.
The relocation of the public access easement is a matter which is not currently before me and for the reasons previously given, issues relevant to the relocation will need to be explored if or when an application is made.
Turning now to a consideration of the principal issues identified above, I am satisfied that the applicable policy framework and the provisions of the zone and the DDO1 support the proposal. While the site is not located within an opportunity area under the Council's strategic framework plan, the proposal is nevertheless consistent with the broad direction of both State and Local Policy to encourage urban consolidation in established urban areas and to encourage development that improves housing choice and accommodate future housing needs. As I have indicated previously the site is well located in terms of its proximity to the Sandringham Major Activity Centre and public transport. This is also a relatively large site in a suburban context and the proposed density of just under one dwelling per 400 m2 is not excessive.
[41]
It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
[4] To ensure that the setbacks of buildings from a street respect the existing or preferred
[46]
neighbourhood character and make efficient use of the site.
[47]
[5] The doctrine of "repeat appeals" is founded in the comments of the Planning Appeals Board in Amoco (Australia) Ltd v Berwick CC(1983) 1 PABR 166.
Parties
Applicant/Plaintiff:
Justelle Nominees
Respondent/Defendant:
Bayside CC [2008] VCAT 233
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomeappellant
Disposition:
The Tribunal set aside the Responsible Authority's decision and directed the grant of a permit for four dwellings with basement car parking and roof decks, subject to specified conditions including variation of an existing easement alignment, acoustic wall setback and landscaping, graffiti removal, environmental audit, traffic and parking plan and other standard conditions (Order).
(i) The plans to show the provision of designated refuse areas for the storage, collection and removal of rubbish and recycling for the commercial and residential units to be located within the site (on the basement levels).
The owner shall clean graffiti from the external walls of the buildings and works (including fences) to the satisfaction of the responsible authority.
A Certificate or Statement of Environmental Audit in accordance with Section 53Y of the Environment Protection Act1970 to be obtained by an Environmental Auditor appointed by the Environmental Protection Agency Victoria is required to ensure the land is suitable for residential land use prior to commencement of works.
The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
Before the development starts, a traffic and parking management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.
It was submitted that proceeding with the merits hearing would be futile without a concurrent consideration of an application to relocate the easement. We determine that this is not the case. We rely on the decisions of Member Martin cited by Mr Cicero where the tribunal has granted permits conditionally upon the resolution of access rights to properties in some way or another. In this matter the council has power subject to review by the tribunal to resolve the question of access rights through relocation of the easement through an application under clause 52.02. Also as the issues are discrete in each proceeding consideration of the relocation application will not be prejudiced or prejudged by determination of the current development application, which may help to clarify and narrow the matters in dispute in the relocation application, in matters such as height, overlooking, overshadowing, built form, and impact on the public realm.
We cannot comment on the range of issued that might be raised in the relocation application..
Council's solicitors advised they had been instructed by an officer of the council, Mr Topp, that council would refuse to consent to relocate the easement at this stage. Although not strictly relevant to decision on the preliminary issue, we note Mr Topp's instructions are not supported by any officer's report or council resolution, and we are aware of the general principal of administrative law that the future discretion of an administrative body such as the council of a municipality cannot be fettered. Council is free to make a decision one way or the other at any time in the future on a relocation application if and when it is lodged..
There have been various comments to the Tribunal about issues of the existence or claimed existence of public rights of way over either the 3m wide easement or the strip of vegetation on its southern side. We consider the tribunal has no jurisdiction to determine the issue of whether common law public rights-of-way exist over the land. These are matters for the courts. As a creature of statute the Tribunal's only jurisdiction in this matter is to review the council's decision to refuse the permit application to allow the proposed development on this site.
There was a related issue as to who had the benefit of the easement. Mr Goodwin suggested that the citizens generally of the City of Bayside had a separate right independently of the municipal corporation to enforce the easement. This again is a question we have no jurisdiction to decide. However it is worth remarking in passing, although it is not strictly relevant to our decision, that section 5 of the current Local Government Act1989 describes the council as 'consisting of its councillors who are the representatives elected in accordance with this Act of persons who are residents'. The citizens are not included as part of the corporation in that definition. Section 5A introduced in 1991 provides for the naming of councils, by giving councils options to use certain forms of names, but leaving councils free to adopt other forms of name including the old format used in the easement document.
We considered there would be no detriment to the public or to any parties by the merits hearing proceeding independently of an application to relocate the easement, but find that delaying the merits hearing be delayed to allow a permit application to relocate the easement to proceed would unnecessarily prejudice the permit applicant. The objectors who are parties to these proceedings will have full opportunity to object to the planning aspects of the development, namely its shape, size, bulk, form, colour, compliance with the planning scheme, clause 55 and the like, and retain the right in due course to object to and participate in any proceedings for the relocation of the easement, both in the permit application before the council and in any review to VCAT.
However we find the permit applicant would be unduly prejudiced and put to unnecessary expense if the matter is adjourned to allow both matters to be dealt with together. Considerable time may pass before the relocation application will be ready to come to VCAT, assuming it is not resolved at council level. Council did not highlight the relocation issue early in the process. It advised the applicant it could be dealt with at a later stage, although in hindsight it would have been in the applicant's interests to include an application to relocate the easement in the permit application, thus enabling the whole issue to be canvassed at both council and tribunal level at the same time. However as the preliminary point was raised only two days before the hearing, it would be unfair and costly to the applicant to deprive him of the merits hearing opportunity for which he has prepared.
Encourage urban consolidation in established urban areas;
Encourage development that improves housing choice and accommodates future housing needs;
Facilitate residential and commercial development in existing activity centres with good access to public transport;
Ensure that development achieves a reasonable standard of amenity for existing and new residents;
Encourage the design of energy efficient buildings;
Ensure that development respects the existing or preferred neighbourhood character;
Achieve high quality urban design and architecture;
The Council's Municipal Strategic Statement identifies the need for the provision of increased supply of housing and for increased diversity in the housing stock in order to accommodate population growth and the ageing of the population[1]. Higher density housing is encouraged principally in activity centres and residential opportunity areas as identified on the Strategic Framework Plan, particularly those areas with good access to public transport networks[2].
The review site is not located within an opportunity area.
Clause 22.07 is a Neighbourhood Character Policy. The policy contains objectives and design responses which are intended to ensure that development is responsive to the key characteristics that make up the preferred future character of each precinct. Proposals that meet the Design Responses are also considered to meet the related Design Objectives. The review site is located within Character Area E2. the preferred future character of this precinct is quoted in full as follows;
Under the provisions of the Residential 1 zone the proposal must meet the requirements of Clause 55. Mr Trickey provided a detailed assessment of the proposal against the standards and objectives of Clause 55 as part of his evidence. The proposal demonstrates a high degree of consistency with the standards and objectives of Clause 55 and in most part this assessment was not disputed. Matters pertaining to street setbacks and neighbourhood character are in dispute however and I will deal with those matters separately.
The design objectives of the DDO1 are primarily concerned with protecting and enhancing the foreshore environment and views of Bayside from Port Phillip Bay. The objectives refer to the scale and form of new development relating to the landform of the coast, the maintenance of the pedestrian scale of development along Beach Road and the protection of the foreshore from overshadowing.
The DDO1 effectively imposes a height limit on development in order to achieve built form outcomes that are consistent with the design objectives. The proposal complies with the specified height limits and the design objectives of the DDO1 are therefore met.
The DDO1 also includes decision guidelines relating specifically to the consideration of applications for roof decks. In terms of this proposal's response to the decision guidelines, I am satisfied that the decks are effectively integrated into the structure and form of the buildings and with one exception, access to the decks is via internal stairs. The external access to the deck on dwelling 1 is to the rear of the dwelling and concealed from Beach Road. To the extent that the external stair will be viewed from Holyrood Street its visual impact will be of little consequence because of the distances involved and the affect of the intervening railway line. The amenity impacts of the decks such as overlooking into surrounding private open spaces, views into surrounding habitable room windows and overshadowing are acceptable because of the substantial separation distances from neighbouring properties.
In terms of the use and development of the Vic Track land, it was submitted to me that the triangular, northern portion of the site ought to be excluded from the proposal. This submission was made on the basis that the Council already has in place an agreement with Vic Track for land further to the north to be transferred to the Council to be used for public open space, and that it would be of benefit to the community for that triangular portion to be incorporated into that open space.
I reiterate my earlier observations that it is not open to me to make findings about whether this land should be acquired by the Council, or whether it should be used for public open space or not. That is entirely a matter for the Council and it would seem that the Council has at some point in the past made its decision that it is not pursuing the acquisition of this land. The land now forms part of the site upon which it is proposed to construct a residential development and in exercising the discretion to direct the grant of a permit, I must be guided by the relevant provisions of the planning scheme.
Clause 36.01-3 of the Public Use Zone requires that an application for use and development by any party other than the public land manager, must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either to the application being made and/or to the proposed use or development.
This requirement has been met.
Before deciding on an application to use or develop land in a Public Use Zone, in addition to the decision guidelines in Clause 65, the decision guidelines of the zone at Clause 36.01-4 require that consideration be given to;
The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
The comments of any Minister or public land manager having responsibility for the care or management of the land or adjacent land.
Whether the development is appropriately located and designed, including in accordance with any relevant use, design or siting guidelines.
Having regard to the Residential 1 zoning of the adjoining land and to my earlier findings about the applicable policy framework and the suitability of the site as a whole for residential development, I am satisfied that it is appropriate for a permit to be granted for the intended use and development of the Vic Track land. As I have indicated above, the public land manager has also consented to this land being developed for residential purposes.
With respect to the proposal's design response to the character of the neighbourhood, it was submitted by the Council and the objectors that the proposed buildings are too high and too visually dominant in both the Beach Road and Holyrood Street streetscapes. It was also submitted that the proposed setbacks are insufficient to maintain the sense of spaciousness and garden setting identified in the preferred character statement, and that the built form is discordant with the pattern of development in the neighbourhood.
As I have described previously the site is highly exposed when viewed from both Beach Road and Holyrood Street, and I think it needs to be acknowledged that any development of the site will assume a level of visual dominance which might not otherwise be experienced on a less exposed site. In arriving at my conclusion that the proposal does achieve an acceptable response to the character of the neighbourhood, I have been influenced by the fact that the two storey height of the dwellings is below the height specified in Standard B7 of Clause 55.03-2 and also complies with the height limit specified in DDO1. While I acknowledge that the street setbacks specified in the schedule to the Residential 1 zone, are not met, I am however satisfied that the relevant objective of Clause 55.03-1[4] is met. The proposed setbacks of dwellings 2, 3 and 4 are consistent with those on abutting lots to the south and provide ample opportunity for effective landscaping of the front setback to ensure that the established garden character with coastal plantings identified in the preferred character statement, is capable of being achieved. I think it is also significant that where there are encroachments by built form into the street setback, these are compensated for at least in part, by deeper setbacks on other parts of the site. Any impression that the proposal presents as continuous, solid, built form along Beach Road would be inaccurate.
The objective to Clause 55.03-1 also refers to the need to provide for the efficient use of the site and this is a criteria which is especially important on a site with irregular configuration and with a narrowing of the site dimensions such as that which occurs on this site. A requirement that the proposal comply with the street setbacks specified in the Schedule to the Residential 1 zone would compromise the efficient use of the site. Having regard to my findings about the suitability of the site for medium density housing, and the acceptability of the setbacks in this neighbourhood context, this would be an unfortunate outcome and one which I do not think is supported by the planning scheme.
I am also influenced by what Mr Biles termed the cohesiveness of the design of the dwellings, the spacing between them, their contemporary form and high levels of articulation. I agree with Mr Biles' assessment that these factors, combined with the dwelling height, setbacks and landscaping opportunities, achieve an appropriate contemporary response to the character of this neighbourhood, and to the built form outcomes sought by the Council's character policies.
My findings about the acceptability of the proposal in neighbourhood character terms apply equally to the Holyrood Street context as well as to Beach Road. The proposal's response to the residential area to the east does however need to be considered in the context that the site is separated from Holyrood Street not only by distance, but also by the intervening railway line and associated infrastructure. I do agree however with the submissions made to me that the presentation of the proposal to the residential area to the east, is somewhat harsh primarily as a consequence of the exposed 3.0 m acoustic wall. I also suspect that the concerns expressed by the Council and the objectors that this wall presents a graffiti opportunity are probably well founded.
A number of ideas were expressed throughout the course of the hearing as to how best to deal with this issue. In my view the easiest and most effective solution is to require the wall to be setback from the eastern boundary sufficient to allow landscaping to be planted on the eastern side of the wall to provide a vegetated screen to the wall when viewed from Hollyrood Street. This will also assist in reducing the attraction of the wall to graffitists. The landscaping will need to be of a sufficient height and density to achieve the desired outcome, and should be semi mature at planting to provide for an immediate visual impact. In the establishment period for the landscaping a post and wire fence will need to be provided to both protect the landscaping and to provide further discouragement for potential graffitists. This change to the proposal is appropriately required by way of permit condition and I have imposed such a condition.
Concerns were also expressed about the prospect of the dwelling walls abutting the public access easement becoming a graffiti opportunity. These concerns were expressed in addition to concerns about the relocation of the easement and what might be termed the loss of the experience associated with using the existing easement in its present location and in its present form.
It is important that I reiterate that I am not now dealing with issues concerning the relocation of the easement. The issues relevant to that decision will need to be determined at the time that an application is made to relocate the easement. The issues relevant to my discretion relate to the acceptability of the proposed development's presentation to the easement. Having regard to the fact that the existing easement traverses land which is zoned Residential 1, any expectation that the experience of using the existing easement through vacant land is not an expectation which can reasonably be held. Any development on the land traversed by the easement will inevitably change the existing experience.
In my view the principal issue on this matter is whether the easement will continue to function so as to provide unhindered access to Beach Road from the east. Related to this issue is whether the proposed construction of dwelling walls abutting either side of part of the length of the easement will have the impact of discouraging public access through the site.
There are a number of reasons why I think that the function of the easement will not be compromised by the proposed development, not the least of which is that because of its proximity to the pedestrian railway crossing, the easement provides a logical and well known access point to Beach Road. This is not a case where public access is being proposed at a location that is distant or concealed from existing pedestrian traffic, or where it is inconvenient for pedestrians to use it.
I do not think that the presentation of the proposed development to the easement creates a sense of invasion of private property that might discourage pedestrians from using the easement. Similarly the amenity and privacy of residents of the dwellings abutting the easement will not in my view be adversely affected by the easement's use by the general public.
At a width of 3.0 m the easement is sufficiently dimensioned for comfortable pedestrian use.
Objectors raised concerns that the proposal would adversely affect views which are currently available of the Bay from the residential area to the east and in particular from various vantage points within Holyrood Street. There is no doubt that existing views will be affected. The extent to which that impact can be considered to be unreasonable needs to be considered in the context that the existing views are currently obtained over and through vacant land which is in most part zoned Residential 1, upon which dwellings up to a height of two storeys can be constructed without a permit. I was not referred to any provision of the planning scheme which seeks to protect views of the Bay from Holyrood Street or to achieve a sharing of views from either public or private spaces.
I was taken in some detail during the course of the hearing to the earlier decision of the Tribunal which affirmed the Council's refusal of that application. Mr Robinson in particular submitted that the Tribunal's findings in that matter are relevant to my consideration of the application now before me, and that the impact of the earlier proposal on the character of the neighbourhood and amenity of the area is greater in the current proposal than in the earlier application.
The Tribunal's approach to dealing with repeat appeals has been formulated and followed by the Tribunal over many years. The Tribunal has taken the view that in the absence of a material change of circumstances or in the proposal itself, the earlier decision of the Tribunal is to be followed[5].
In the circumstances of this case, I am confronted by a proposal which is quite different from that previously considered by Member Avery. Mr Avery was dealing with a proposal for seven dwellings above a basement on a site which was confined to 1-3 Beach Road and had an area of 697 m2. It is worth reiterating that I am dealing with a proposal for four dwellings on a site of 1588 m2. Mr Avery found that the residential development he was considering was unacceptable for the reasons contained in his decision, but for the reasons I have outlined I have found that the very different proposal now before me does achieve acceptable outcomes. My decision to direct the grant of a permit does not in any way conflict with the Tribunal's established principles for dealing with repeat appeals.