Le Tet Property Group Pty Ltd v Port Phillip CC [2016] VCAT 1067 (27 June 2016)
[2]
Le Tet Property Group Pty Ltd v Port Phillip CC [2016] VCAT 1067
[3]
Pursuant to s124 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal makes the following declarations concerning a matter arising in the proceeding, namely the interpretation of relevant parts of Schedule 26 to the Design and Development Overlay () under the Port Phillip Planning Scheme (introduced through Amendment C107 on 2 June 2016), insofar as DDO-26 now affects the proposed development in the proceeding.
DDO-26
The proposed development is within the area of Sub-Precinct 3-d under DDO-26.
The provision in clause 3.3 of DDO-26 for Sub-Precinct 3-d (on page 18 of DDO-26) that provides that "Development beyond the setbacks identified above must not exceed a height of 30 metres" is a mandatory height control, subject to the limited exemptions in clause 4.0 of the schedule.
The provision in clause 3.3 of DDO-26 for Sub-Precinct 3 generally (on page 17 of DDO-26) that provides that "A 3 metre landscape setback must be provided to all street frontages, except laneways ..." is a discretionary requirement that may be varied by permit.
The provisions in clause 2.0 of DDO-26, insofar as they apply in Sub- Precinct 3 in relation to separation distances, side and rear setbacks, landscaped setbacks, and street wall/podium levels, are in each case discretionary requirements that may be varied by permit.
[4]
The parties sought a preliminary hearing to clarify the terms of the recently approved Amendment 107 to the Port Phillip Planning Scheme, ahead of a compulsory conference and a proposed amendment to the application plans. Changes to the originally exhibited Amendment through the recommendations of a panel, other changes made by the Council at the time of adoption, and further changes made by the Minister of the time of approval, had led to some apparent anomalies as to whether certain controls and requirements were mandatory or discretionary in their intended operation.
By the time of the preliminary hearing, the permit applicant and responsible authority had separately come to similar conclusions about how Schedule 26 to the Design and Development Overlay (DDO-26) introduced by the Amendment should be interpreted. For the sake of certainty, I was nonetheless requested to embody this consensus position in the form of a declaration. Having heard from the parties, I endorsed the interpretation for which they now both contend, and have made the declaration accordingly.
Essentially, the interpretation proceeds on the basis that the relevant requirements in DDO-26 are discretionary unless accompanied by the additional words (that appear in the DDO on several occasions) to the effect that a permit may not be granted for a building or works that is not in accordance with the relevant requirement, unless allowed by clause 4.0 of the schedule. Where those words appear, the requirement operates as a mandatory control.
For the avoidance of doubt, the declaration is limited to an interpretation of DDO-26 insofar as it now affects the development proposed in this proceeding. Although invited at one stage to do so, the Tribunal is not prepared to offer an advisory opinion on the interpretation of the Amendment and DDO-26 more generally.