Victorian Civil and Administrative Tribunal|2010-07-09

Merri Merri Developments Pty Ltd v Darebin CC (includes Summary) (Red Dot) [2010] VCAT 1045 (9 July 2010)

The practice of VCAT is to designate cases of interest as 'Red Dot Decisions'. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

Senior Member Russell Byard and Member Rachel Naylor

Merri Merri Developments Pty Ltd v Darebin CC (Red Dot) [2010] VCAT 1045

Refusal by Responsible Authority to grant a permit for 99 dwellings. Amended proposal for 93 dwellings in a four level apartment building and associated townhouses with a basement car park supported by the Responsible Authority subject to conditions.

Paragraphs [27] - [52] The appropriateness of imposing permit conditions requiring a percentage of the housing to be "social housing" and the appropriateness of requiring a green travel plan.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

ANALYSIS - exposition of how to assess an issue or matters to consider

The legitimacy and appropriateness of including permit conditions requiring a percentage of the dwellings to be "social housing" and a condition requiring a green travel plan that is highly elaborate and involves a degree of detailed social control not commonly imposed in Victoria.

The proposed development of 93 dwellings was the result of the substitution of amended plans in accordance with the Tribunal's Practice Note requirements. The Responsible Authority resolved to support the amended proposal and the resident objectors advised they supported the redevelopment but subject to the development being reduced and redesigned to respect better the neighbourhood character and amenity of neighbouring properties. Hence, our decision was not based so much on the merits of the proposal but rather on what the conditions of the permit should be.

The Responsible Authority imposed a condition requiring the owner of the land to provide a written undertaking that a minimum of 15% of the residential dwellings be designated and used for "social housing". The Responsible Authority said the expression "social housing" is interchangeable with "affordable housing" and "public housing", none of which are defined in the planning scheme. The expression "social housing" is more vague and uncertain than the other two and the meanings are not generally the same. We note the planning scheme does employ the expression "social housing" in clause 52.41 under the heading Government Funded Social Housing; and in clause 16.05-2 (Affordable Housing) with a strategy of facilitating a mix of private, affordable and social housing in activity centres, strategic redevelopment sites and transit city projects. Whilst vagueness may be acceptable in a general policy provision, it is hardly acceptable in a permit condition.

The requirement for 15% as an appropriate figure is not justified. There are problems, both in relation to equity and nexus as well as doubt as to its scope, intention and meaning, including what is meant by the expression "social housing".

The Responsible Authority also sought a condition for a green travel plan to be approved. Such a condition was considered and rejected for good reason in The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472 [45] - [54]. The Responsible Authority said the condition had been effectively invited by the permit applicant voluntarily submitting a travel plan for this development. It is hardly correct to say this document was volunteered as the Responsible Authority purports to require such plans to be submitted in accordance with its four page document entitled "Travel Plans - Guidelines for Planning Permit Applications". Whilst this document contains worthy intentions, it appears to be a very elaborate excursion of its own by the Responsible Authority imposing a purportedly mandatory requirement and going well beyond the planning scheme or statutory justification. It is highly elaborate and involves a degree of detailed social control not commonly imposed in Victoria.

The Tribunal, in The First Stone case, expressed concern about the validity of such a condition, terms of the test of condition validity and, hence, reference was made to relevance, reasonableness and certainty. We have not imposed this condition.

Application under s 77 of the Planning and Environment Act 1987; Refusal by Responsible Authority to grant a permit for 93 dwellings in a four level apartment building and associated townhouses with a basement car park; Darebin Planning Scheme; Residential 1 Zone; Development Contributions Plan Overlay; Environmental Audit Overlay; Environmental Significance Overlay; Car Parking reduction; Scale and mass of development; Neighbourhood character; Share car space; Appropriateness of permit conditions requiring a percentage of housing to be "social housing" and requiring a green travel plan.

Merri Merri Developments Pty Ltd v Darebin CC (includes Summary) (Red Dot) [2010] VCAT 1045

This application for review is granted and the decision of the Responsible Authority to refuse to grant a permit is set aside (by consent). A permit is granted for 93 dwellings and a reduction of car parking provision below the standard requirements specified in the planning scheme in accordance with the endorsed plans provided for in the following conditions which are to be the conditions of the permit.
1. Before the development starts, amended plans must be submitted to and approved by the Responsible Authority. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be generally in accordance with the substituted plans lodged with the Responsible Authority on 19 May 2010 (date stamped received 25 May 2010) and prepared by Carabott Holt Architects (Revision A, dated 18 May 2010) and landscape concept plan prepared by Formium Landscape Architects (Revision B, dated May 2010) but modified to show:

(a) the provision of 2 car spaces for each of the three bedroom southern townhouses by designating a total of one basement car spaces to each of these townhouses and providing appropriate access arrangements from the townhouses to the basement and vice versa;

(b) pedestrian visibility splays must be provided around vehicle crossovers at the property boundary line (Bridge Street);

(c) a ramp must be provided from the public footpath at the main entrance (Merri Parade) to the central building as per the Building Code of Australia Part D3.2 to be built to accord with Australian Standard AS1428.1;

(d) bicycle parking space dimensions must be 1.7m x 0.7m and accord with Clause 52.34-3 of the Darebin Planning Scheme;

(e) a 1:25 elevation at the vehicle access ramp to determine headroom clearance;

(f) the minimum headroom to be provided above a car parking space is 2.2m;

(g) location and height of a single communal antenna for the apartment building and appropriate siting of a single antenna per townhouse so that they are not readily visible from the nearby street network;

(h) privacy screens for the first floor (north elevation) balconies of the 5 southern townhouses to prevent overlooking to adjoining residential properties in accordance with Standard B22 of Clause 55.04-6 of the Darebin Planning Scheme;

(i) all external materials and finishes with colour and sample boards and coloured elevations;

(j) glazing to windows for all elevations noted as having low reflectivity levels;

(k) storage areas of a minimum of six (6) cubic metres must be provided for the southern townhouses;

(l) all plant and equipment shown on the endorsed plans to be suitably screened and appropriately sited to limit visibility from the public realm;

(m) fire hydrant, substation or similar to be designed into the architecture of the building;

(n) location of mail boxes for the apartment building;

(o) sun shading devices and the like to be located within the title boundary;

(p) a Parking Management Plan specifying the assignment of each individual parking space in the central buildings basement car park including the management of the tandem spaces (refer condition 5);

(q) modifications in accordance with the Sustainable Design Statement (refer to condition 8); and

(r) a revised Landscape Plan in accordance with condition 10 of this permit which incorporates indigenous plants.

The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

the development does not start within three (3) years from the date of this permit; or
the development is not completed within five (5) years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this permit expires of within three (3) months after the expiry date.

Before the development starts either:
- a certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
- an environmental auditor appointed under the Environmental Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the use.
Each of the basement car parking spaces allocated to one of the four southern three bedroom townhouses is to be designated to its respective townhouse and its availability for use by occupants of the respective townhouse is to be maintained together with access to it.
Prior to the issue of a building permit for any building or any works authorised by this permit, a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
The owner must ensure that the materials and finishes as approved under this permit are incorporated into the construction of the building to the satisfaction of the Responsible Authority.

(a) Before the development starts, a Sustainable Design Statement (SDS) detailing sustainable design strategies to be incorporated into the development for the northern and southern townhouses (only) to the satisfaction of the Responsible Authority. The SDS must be submitted to and approved in writing by the Responsible Authority. The SDS must outline proposed sustainable design initiatives within the development including energy efficiency, water conservation, stormwater quality, waste management and material selection.

(b) The development for the northern and southern townhouses must be constructed in accordance with the requirements/recommendations of the Sustainable Design Statement to the satisfaction of the Responsible Authority.

Before the development starts, an Environmentally Sustainable Development Management Plan (ESD Management Plan) prepared by a suitably qualified professional for the apartment building (only) which must be submitted to and approved by the Responsible Authority.

energy management;
stormwater management;
water conservation and re-use; and
demolition and construction waste management.

b) Where appropriate, the ESD Management Plan should:

identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards;
document the means by which the appropriate target or performance will be achieved;
identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring; and
demonstrate that the design elements, technologies and operational practise that comprise the ESD Management Plan can be maintained over time.

A schedule for implementing and monitoring the ESD Management Plan must be included. The approved ESD Management Plan must be implemented to the satisfaction of the Responsible Authority.

Before buildings and works start, a revised Landscape Plan must be submitted to and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed as evidence of its approval and will then form part of the endorsed plans of this permit. The Landscape Plan must be prepared by a suitably qualified person and must incorporate:

details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties specifying the genus, species, height and spread of all trees; 2. a planting schedule of proposed vegetation detailing the botanical name, common name, size at maturity and quantities of all plants;

details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel);

d) street trees within the nature strip/s adjacent to the property;

all constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting clotheslines etc.;

f) edge treatment between grass (lawn) and garden beds;

an outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences including an outline of buildings on adjoining land and the location of windows and doors which face the subject site;
the location of both existing and proposed overhead and underground services avoiding conflict of such services with the existing and proposed planting;
clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers;
indications of echium candicans that need to be removed and replaced with plants that are non invasive; and

(a) The landscape works as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the development is occupied or at such later date as is approved in writing by the Responsible Authority.

(b) No later than seven (7) days after the completion of the landscaping, the permit holder must advise the Responsible Authority, in writing, that the landscaping has been completed.

The landscaping as show on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.
Before the development starts an amenity value fee in a sum of money to the satisfaction of the Responsible Authority must be paid to the Council for the replacement of street trees, such payment to be made to the Council's Open Space Planning Unit.
Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
Before the development starts, a Waste Management Plan is to be submitted and approved by the Responsible Authority detailing garbage and recycling storage areas, types of bins/vehicles, frequency of collection, times of collection, location of collection point for vehicles. Waste collection is not to affect the amenity of the area or traffic flow.
Prior to occupation of the development, the permit holder must arrange for the removal of waste and recycled product from the development by a private contractor to the satisfaction of the Responsible Authority. A copy of the collection arrangements must be provided to the Responsible Authority prior to the occupation of the development.
All bins and receptacles must be maintained to the satisfaction of the Responsible Authority in a clean and tidy condition and free from offensive odour(s).

(a) Before the development starts, a detailed Acoustic Report prepared by a suitably qualified Acoustic Engineer must be submitted to and approved by the Responsible Authority. The Report must include:

(i) details of measures necessary to ensure that all dwellings within the development are protected from noise associated with any onsite mechanical plant equipment, consistent with the requirements of the State Environment Protection Policy N-1.

(ii) details of measures necessary (including treatment to windows if required) to ensure that internal noise levels of all habitable rooms within the development are limited to a maximum of 45dB(a) in accordance with relevant Australian Standards for acoustic control (including AS3761 - Road Traffic)

(b) The relevant requirements of the said State Environment Protection Policy and the said Australian Standard must be met to the satisfaction of the Responsible Authority.

All alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.
Disabled access to the building must be provided to the satisfaction of the Responsible Authority. All work carried out to provide disabled access must be constructed in accordance with Australian Standards Design for Access and Mobility: AS1428-1998, AS1428-2 1992, AS1428-3 1992 and AS 1428-4 199.
All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.

(a) Before the dwellings are occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.

(b) The external lighting must be designed, baffled and/or located to the satisfaction of the Responsible Authority to ensure that no loss of amenity is caused to adjoining or nearby land.

Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
The land must be drained to the satisfaction of the Responsible Authority.
With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land 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 prior written consent of the Responsible Authority.
Provision to the satisfaction of the Responsible Authority must be made on the land for letter boxes and receptacles for newspapers.
Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

properly formed to such levels that they can be used in accordance with the plans;

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
Before the development is occupied, vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s) or crossing opening(s) must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

The Responsible Authority is directed pursuant to s 85 (1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Mr C Canavan QC, barrister, appeared with Ms N Collingwood, barrister, on the instructions of Norton Rose, solicitors for the applicant company. They presented written and oral submissions.

They called Mr A T Biacsi, town planner; Mr M McWha, landscape architect and Ms C Dunstan, traffic engineer as witnesses. They each gave oral evidence adopting a written report.

Mr P Nickas, town planner and officer of the City of Darebin appeared for the responsible authority. He presented written and oral submissions.

Mr J Glossop, town planner appeared for Mr M Flattley and the following other objectors:

J B and L Pitts, M Parravicini, A and G Douglas, P and A McGranaghan, R Skewes, K Bayly-Pike, E and B Wood, P Plowman, K Booth, D Nelson, C Hill, A Tenni, R Hore, I Woodley, S Doe, J Buick, G Porthouse, D Moore, J Brown, F McDonald, N Thorpe, S Gerakis, D and B Krstic, J Everist, C and J Moore, F Leahy, P Dalby, C Zuafa, N Harding, H Lawless, A Reed, M Rodriguez, P Gallagher, R Montague, L Houlihan, S Muir, K Thomas, P Moore, S Norden, R E Polic, A Hindle, R Wallace, L A Spreitzer, R Sykes, H Hesterman, J Brownrigg, M O'Connell, Hoog Family Company Pty Ltd, C Symeonides, E Cato, R Smale, N Ellis, S O'Collins, D Van Royen, M Passmore, T Gardner, L Davies, E Byrnes, P Barrett, P Haas, J von Goes, S Lake, A Shenfield, A McGregor, M L Baxter, L and B Duncan, H Oliver-Skuse, G Hannah, K Pearson and R Wallace.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 77 of the Planning and Environment Act 1987 for a review of a decision of the responsible authority to refuse to grant a permit.

Residential 1 Zone and covered by a Development Contributions Plan Overlay, an Environmental Audit Overlay and an Environmental Significance Overlay (Schedule 1) under the Darebin Planning Scheme.

At the commencement of the hearing Mr Canavan on behalf of the applicant company sought to substitute a new set of plans for the application plans. The new set had been circulated to parties under cover of a letter of 19 May 2010. This amendment was made by consent.

The Statement of Grounds relied upon by the objectors was originally made in the name of an unincorporated association namely Merri Community Group. However, at the commencement of the hearing Mr Glossop applied for Mr M Flattley and the other objectors named above to be joined as parties. That application was granted by consent.

Lots 1-5 on Title Plan 849997U being the land in Certificate of Title Vol 05368 Folio 481

Lot 1 on Title Plan 643234Y being the land in Certificate of Title Vol 09516 Folio 774

Lots 1 and 2 on Title Plan 251906J being the land in Certificate of Title Vol 04274 Folio 620

Lot 1 on Title Plan 112082J being the land in Certificate of Title Vol 09533 Folio 900

Lot 1 on Title Plan 189280V being the land in Certificate of Title Vol 09498 Folio 969

Irregularly shaped parcel of land with a frontage of 82.0 metres to the east side of Merri Parade between its frontages of 52.7 metres to the south side of Bridge Street and 43.0 metres to the north side of Union Street and having an area of 6313 square metres.

MacRiver Pty Ltd v Yarra CC [2008] VCAT 2568;

Yarra Community Housing v Greater Geelong CC [2009] VCAT 2208;

The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472;

Bamfa Nominees v Darebin CC [2009] VCAT 1034.

A planning application was lodged with Darebin City Council (the responsible authority) in June 2009 for the development of 99 dwellings comprising 16 townhouses and a five level apartment building containing 83 dwellings with a basement car park. The application was publicly advertised and 71 objections were received. The responsible authority considered the application at a planning committee meeting in November 2009. Despite an officer recommendation to approve the development, the responsible authority determined to refuse the application because it took the view that:
- it created an unacceptable visual impact, was an overdevelopment and was out of character with the neighbourhood due to its scale and massing;
- it provided insufficient parking for residents and visitors;
- the main access way would impact upon the adjoining dwelling at 4 Bridge Street; and
- it provided poor amenity as apartments relied upon borrowed light or had no windows.
This application to review the responsible authority's refusal was received by the tribunal in December 2009 and, in the lead up to the hearing, the applicant circulated a request to substitute amended plans in accordance with the tribunal's Practice Note requirements. The responsible authority considered the amended plans and resolved to support the amended proposal subject to a number of conditions. Mr Glossop, on behalf of the residents, advised that they support the redevelopment of the site subject to ensuring that any new development is designed to respect the neighbourhood character and have a positive impact upon the streetscapes, including minimising amenity impacts upon neighbouring properties.
As such, our determination on the merits of this matter is no longer a decision as to whether a permit should be granted as all parties agree that this should occur. Rather, the matters that require our consideration relate to the scale and mass of the buildings and their impact on the character and amenity of the neighbouring residential properties, particularly to the east; and the appropriateness of the car parking and access arrangements. Essentially, these are issues raised by Mr Glossop on behalf of the residents, who seek the following changes to the design:
- deletion or reduction in the size of the fourth level to integrate the apartment building with the scale of the neighbourhood;
- a greater setback to the apartment building from the eastern boundary (adjacent to the back garden of 4 Bridge Street);
- provision of an unbroken landscaped edge abutting the laneway that runs along the east and north edges of the site;
- increasing the number of car spaces to be compliant with or nearly compliant with cl 55 Standards[1]; and
- relocating the share car space in Bridge Street to create a landscaped front setback at the site's northeast corner.
We have considered these issues, the suggested changes above and the responsible authority's suggested condition 1(r) that requires the apartment building setbacks from the east boundary (opposite 4 Bridge Street) to generally be increased. Overall, we are not satisfied these changes are necessary or appropriate other than to require the car parking for the three bedroom southern townhouses to be increased. The reasons why we have reached this view are explained below.

The responsible authority is generally satisfied with the scale and massing of the three buildings across the site subject to one key change. Condition 1(r) requires the portion of the apartment building that abuts the eastern laneway to be setback further to respect the amenity of the backyard of the residential property on the opposite side of the laneway at 4 Bridge Street. Essentially condition 1(r) requires one apartment to be removed at the ground and first floor levels adjacent to the laneway; the maintenance of the existing second floor setback (as the parties agreed the setback specified in condition 1(r) is already achieved); and a loss of one apartment on the third floor level. Mr Nickas (the town planner officer who appeared for the responsible authority) explained the responsible authority considers four storeys is generally an appropriate height and that the building should be scaled down at its eastern residential interface to single storey construction with adequately landscaped setbacks. However, Mr Glossop (town planner who appeared for the objectors) submitted the residents are not satisfied that this is an appropriately recessive building form. He stated a four storey building does not integrate with the one and two storey predominant scale of the surrounding neighbourhood.
Both the responsible authority and the residents relied upon the Neighbourhood Character Study that is a reference document to the Neighbourhood Character Local Planning Policy at cl 22.04-4. We note the objectives of this policy[2] are to retain and enhance the identified elements that contribute to the character of the area, and to ensure development responds to the preferred neighbourhood character of the area. Mr Nickas explained that this site forms part of Precinct A1 of the Neighbourhood Character Study (NCS) but highlighted that it is identified as a strategic redevelopment site, which comes with its own design parameters as articulated in Appendix 8/9[3]. The suggested design parameters within the NCS that apply to this site are:
- the scale of development could be increased in locations fronting St Georges Road and Merri Parade however, buildings should be scaled down at the eastern residential interface to single storey construction with adequately landscaped setbacks; and
- adequate space should be provided on these sites for substantial landscaping, particularly south of Charles Street.
Mr Nickas' submission stated the construction of a four storey building is appropriate because this is specifically mentioned in the suggested design parameters in Appendix 8 of the NCS. However, we agree with the other parties that the reference in Appendix 8 to four storeys appears to relate specifically to the land on the northeast corner of St Georges Road and Charles Street. It is our view that the suggested design parameters do not place any height limitation upon this site other than for buildings to be scaled down at the eastern interface to the suggested single storey construction with landscape setbacks.
We agree with Mr Glossop that the scale and massing of the development of this site should have regard to the Planning Policy Framework and the physical context of the site. We agree the site is not contained in a Business or Mixed-Use Zone, but rather has a residential zoning similar to the residential properties to the east. We agree that it is not in a principal, major or neighbourhood activity centre, but we note that it is in close proximity to surrounding activity centres and has good access to public transport. Furthermore, it has been identified in the NCS as one of five strategic redevelopment areas, which the NCS acknowledges offers potential for redevelopment for higher density residential housing[4]. As such, we find a different scale and mass of development on this site is appropriate subject to the eastern interface being respectful of the existing residential character.
To the east of this site is two residential properties. 4 Bridge Street contains a double fronted single storey house with a rear back garden to its south, and 7 Union Street contains a single storey double fronted house with a back garden to its north. At present, 4 Bridge Street is bounded to its east side and south rear boundaries by a laneway that is approximately 3.0 metres wide, with a factory wall that is a minimum of 6.2 metres in height[5] on the opposite side of these laneways. Adjacent to the west boundary of 7 Union Street is another laneway approximately 3.0 metres wide with a vacant area of land beyond that is enclosed with a cyclone wire fence. This land currently contains a mix of grass and a concrete sealed surface. In other words, at present there is no landscaping on this site in proximity to the side and rear boundaries of 4 Bridge and 7 Union Streets.
We find the proposed building form of the southern townhouses in proximity to 7 Union Street to be appropriate. The eastern end of these townhouses is one and two storeys in height. The height of the second storey is similar to that of the apex of the roof of 7 Union Street. The third storey of the townhouses is setback 4.05 metres, and we find this staggering of the building form is appropriate and respectful to the scale and form of the dwellings found in Union Street. There is a row of single storey garages towards the rear that are opposite, in part, to the back garden of 7 Union Street. We find this building structure is similar to the types of outbuildings (including garages and sheds) that exist in many residential properties in this neighbourhood. Hence, we are of the opinion that these structures are also respectful of the existing scale and form of buildings that are found in this neighbourhood.
Along the east boundary of this site adjacent to 4 Bridge Street there is proposed (commencing at the northern end of the site):
- a share car space for a depth of 5.17 metres;
- a substation kiosk with pedestrian access for a depth of 7.85 metres;
- a main switch room that is single storey for a depth of 6.5 metres;
- a private open space courtyard and associated landscaping for a depth of 5.8 metres; and
- a two storey wall associated with two levels of the apartment building for a length of approximately 11.0 metres.
This 11.0 metre long wall would be located opposite the back garden and part of the roofed verandah area of 4 Bridge Street. This wall has a height of 7.5 metres, which is approximately 1.3 metres higher than the existing factory wall.
The responsible authority and the residents want this wall removed; the apartment building setback further by deleting the eastern end apartments at ground and first floor levels with this area landscaped instead. We are not persuaded this is necessary or appropriate as part of this development.
It must be remembered that the existing condition surrounding the back garden of 4 Bridge Street is a 6.2 metre high factory wall. We have inspected the back garden of 4 Bridge Street and agree with Mr Glossop that the ground level within the back garden is a little higher than the ground level of the laneway. Based on section B-B (in the plans), the parties agreed that a person standing on the eastern side of 4 Bridge Street's back garden would have a view of approximately half of the fourth level of the apartment building, which is setback 8.5 metres from the site's boundary. We note section B-B does not take into account the existing raised clothes drying area and the existing trampoline that are located on the east side of the back garden. Nevertheless, we acknowledge that it will be possible to gain some views of the fourth level from the eastern side of this back garden. Visibility of a building or part of a building, however, is not sufficient reason to refuse the proposed residential development of this site. It is quite clear from the combination of State and Local Planning Policies that this site is earmarked for a higher density of development than that which currently exists to the east of it. We find the layout of the development is respectful of the scale of the buildings to the east as it steps down in height from four storeys to one and two storeys adjacent to the laneway. Whilst the two storey wall adjacent to the back garden of 4 Bridge Street is a little higher than that which exists now, we are satisfied that this is appropriate because the overall length of wall surrounding the side and rear of the back garden has been significantly reduced to just this section of two storey wall; and the wall is setback 3.0 metres because of the width of the laneway. This setback is in excess of what would be required under cl 55.

The proposal includes a share car space in the northeast corner of the site adjacent to the laneway separating the site from 4 Bridge Street. Mr Glossop requested that this car space be relocated so that there could be a landscaped front setback extending to the site's eastern boundary. He submitted this car space is adjacent to the bedrooms of 4 Bridge Street and disrupts the landscaping treatment that is proposed generally along the Bridge Street frontage of the development. We are not persuaded this share car space will create unreasonable impacts upon the bedrooms of 4 Bridge Street. As we see it, the two issues associated with the location of the share car space are the benefit, if any, associated with it being relocated on-street and the impact upon the Bridge Street streetscape.
Ms Dunstan gave evidence that a share car space that is clearly visible and accessible by both the residents of this development and the general public is a benefit associated with this proposal. She is comfortable with the location as proposed but indicated that she would also be comfortable if it was located along Bridge Street. Ms Dunstan advised that the deletion of the new crossover for the share car space will not result in an increase in the number of on-street car spaces if the share car space was relocated onto Bridge Street. She also advised placing the share car space on the street will result in the permanent loss of one on-street car space[6]. Therefore, we find there is no significant benefit to placing the share car space on the street, particularly as it will result in the permanent loss of one on-street car space in a street where car parking demand is high[7].
The Bridge Street streetscape does contain a series of properties that have small front gardens and no car parking and this is partly recognised by the fact that these properties (from 6 Bridge Street and heading east) are contained in a Heritage Overlay. 4 Bridge Street is not affected by the Heritage Overlay and it has a driveway and an opportunity to park in the frontage of this property. The site itself currently has a brick wall wrapping around its northeast corner and extending along both the Bridge Street frontage and the laneway. We agree with Mr Glossop that the inclusion of front gardens to the townhouses facing Bridge Street will enhance the streetscape character, but we are not persuaded that it is necessary for the share car space to be removed in order to maintain or enhance this character. Accordingly, we find that the share car space should remain as is.

Mr Glossop submitted the residents would like to see the number of car spaces provided on the site increased to be compliant, or nearly so, with the cl 55 Standards. Mr Glossop stated orally that the applicant's case for reducing the car parking was based on the proposed share car scheme, the green travel plan and the ABS data of car ownership levels. However, Ms Dunstan's expert report states a reduction in car parking is supported for a number of reasons including the site's proximity to public transport and neighbourhood activity centres, the small studio and one bedroom dwellings having a low car ownership level, the proximity to six existing share car pods in the surrounding area as well as the proposed share car pod onsite and the ample on-street parking available to accommodate visitor parking.
We accept Ms Dunstan's evidence in regard to the waiving of provision of any onsite visitor parking on the basis that there is adequate opportunity for on-street visitor parking in the nearby area at relevant times. We agree that a reduction in the resident car parking provided onsite is appropriate, but we are not persuaded to reduce the car parking for the three bedroom southern townhouses to a minimum of one car space per dwelling. The original traffic and parking report submitted with the permit application by GTA Consultants proposed to provide two car spaces for each three bedroom townhouse, which included the provision of tandem spaces for the southern townhouses. The responsible authority did not support this because the tandem car space utilised the rear courtyard space that would otherwise be considered as private open space. The responsible authority took the view that one space for each of the townhouses was sufficient and the area would be better used as open space. We agree with the responsible authority and find that each of the southern townhouses must have a private open space area and the northern rear courtyards are an appropriate form of private open space area.
Ms Dunstan's evidence to reduce the car parking for the three bedroom townhouses is based upon the car ownership data contained in the 2006 Australian Bureau of Statistics (ABS) census. Table 7 of her expert report demonstrates that the average number of cars for a three bedroom flat/unit/apartment in a one or more storey block is 1.3. On page 32 of Ms Dunstan's evidence she states:

... This data suggests that the provision of 3-bedroom dwellings with one car space is acceptable in this location, particularly where it is supported by a 'car share' scheme.

However, Ms Dunstan accepted orally that the ABS data distinguishes between a three bedroom flat/unit/apartment in a one or more storey block and a three bedroom semi-detached, row or terrace house, townhouse etc. She also accepted that the southern townhouses could be described as being semi-detached, row or terrace houses, townhouses etc. In our opinion, this is the more appropriate description to apply to these southern townhouses. Ms Dunstan said orally that the 2006 ABS data for three bedroom townhouses indicates the average number of cars per dwelling is 1.6. However, she pointed out that approximately 40% own one car and 10% own no cars. Whilst we acknowledged approximately 50% of three bedroom townhouses have one or less cars, the fact remains that the ABS data indicates an average car ownership of 1.6. In our opinion, this is more in keeping with the cl 55 requirement of two car spaces per three bedroom dwelling. We also note in Ms Dunstan's evidence that this requirement is contained in the Advisory Committee Report dated August 2007 into the Review of Parking Provision in the Victoria Planning Provisions. This Report recommends the adoption of the same rates as cl 55 for residential developments of four or more storeys, regardless of whether the three bedroom dwelling is within an activity centre or not. Therefore, we find the southern three bedroom townhouses should be provided with two car spaces each. Hence, the issue now is how can the southern townhouses be provided with an additional car space given the narrowness of each of the townhouses only provides the opportunity for a single garage at the rear of each townhouse.
We note that the amended plans have significantly increased the size of the basement car park and that the car parking allocated to the studios/bed-sits has increased from 0.3 of a car space per dwelling to 0.62 of a car space per dwelling. Ms Dunstan's evidence in regard to this aspect of the proposal is persuasive. She pointed out the studio and one bedroom apartments are small (generally less than 45 square metres in size) and that approximately 30.0 square metres of floor space is required for a single car space when account is taken of the need of space for access and other purposes. Hence, she said that it is questionable as to whether it is sensible to provide a car space for such a small dwelling given the cost associated with the development of a single car space. She also advised that she is comfortable with the provision of 0.3 of a car space for the studio apartments rather than the 0.62 contained in the amended plans. She suggested orally that it is likely some of the car spaces in the basement will not be used or taken up by residents. Given this, we are of the opinion that four car spaces within the basement should be allocated to each of the four southern three bedroom townhouses and the parking provision for the studio/bed-sits reduced accordingly[8]. We acknowledge that this means the townhouses will require access into the basement car park but find this is not difficult to achieve given there is an entrance into the ground floor of the apartment building from Union Street. The residents of the townhouses will simply need a security pass or key to use this entrance to then gain access to the lift or stairwell into the basement.
Mr Glossop expressed concern on behalf of the residents that the significant increase in traffic generated by this proposal will result in increased congestion at intersections at peak times and that local accessibility will be affected. We agree with and adopt Ms Dunstan's evidence that the proposed development will generate in the order of 375 vehicle trip ends per day with up to 38 vehicle trip ends in the commuter peak hours. This is a relatively modest level of traffic and can be comfortably accommodated by the nearby road network and will result in a negligible increase in queue links and delay times for critical manoeuvres at surrounding intersections.

This brings us to the draft permit conditions, most of which were generally agreed to by all parties. Some conditions were disputed and/or discussed during the hearing and our findings on these are outlined below.
A report of the responsible authority's planning officers on this proposal was prepared in the light of the amended plans. It recommended acceptance of the amended plans and the grant of a permit subject to a set of conditions. The recommendation set out the conditions.
The responsible authority accepted the recommendation in substance but added two amendments to the conditions that were foreign to the recommendation made by the planning officers. The first change (condition 1(r)) has already been dealt with in our findings about the scale and mass of the development.

The second change was the inclusion of what has become condition 4. It reads:
1. Before the development and/or use start, the owner of the land at 38 Merri Parade, Northcote must provide a written undertaking to the satisfaction of the Responsible Authority to the effect that, without the written consent of the Responsible Authority:

(a) a minimum of 15% of the residential dwellings on the land must be designated and used for social housing.

Our first response, on reading this condition, was to ask the question what is meant by the expression "social housing" in this context. Without knowing that it is impossible to determine what the condition really means. In the submission of Mr Canavan on behalf of the company, the condition is invalid and ineffective for vagueness. Uncertainty as to the meaning of this expression is an aspect of the alleged vagueness. There were other criticisms of the condition, and other attacks upon its validity.
It needs to be remembered that the imposition of a condition in a planning permit is to impose a legal obligation and it needs to determine the terms and limitations of that obligation. It is intended to be legally enforceable. Breaches of such legal obligations can have serious consequences, including prosecution, the imposition of penalties and the imposition of serious civil remedies. Anyone bound by the permit condition needs to know the nature and extent of the obligation imposed. So does the responsible authority, and perhaps others. It is also necessary to know who it is upon whom the obligation is imposed.
What then is meant by the expression "social housing" in this context? It was said, on behalf of the responsible authority, that the expression is interchangeable with "affordable housing" and "public housing". None of these expressions are defined in the planning scheme so that where they are used, either in the planning scheme or in a permit condition, they must have their ordinary English meaning. The expression "social housing" is probably more vague and uncertain than the other two. Whether or not there may be some overlap, we do not think that those three expressions are interchangeable or that they necessarily have the same meaning in all contexts. On the contrary, generally speaking they have different meanings.
We think that affordable housing generally means housing that is available at low cost so as to be affordable, whether for purchase or rental, by people of modest means. In that connection the studio/bed-sitting room accommodation in this proposal (particularly that to which no car parking space attaches) could be considered to be affordable housing. It is housing intended to be provided by a private developer and put on the market at what must be, at least comparatively, a low price. If "social housing" means affordable housing there is no occasion for such a condition as number 4.
Whilst it might not be an exclusive definition, we would take public housing to mean housing provided by the government or a public authority such as the Ministry of Housing or the present day successor of the Housing Commission. If that is what is intended here, we must observe that there is no evidence that the relevant Minister or department has any interest in acquiring responsibility for the management, control, letting or sale of 14 or 15 dwellings in this proposed development. Indeed, the condition appears with no background or context, and no indication as to who is to be responsible, not only for those things, but for the cost of acquiring the units concerned. To put it mildly, there would be legal complications if what this condition contemplates is compulsory acquisition without just compensation.
Perhaps it is intended that the 15% of dwellings are to be acquired, paid for, managed, let or sold by some private organisation; perhaps some charity. Again, there is no indication that anybody of that sort is interested in taking on those responsibilities.
The planning scheme does employ the expression "social housing" in relation to cl 52.41 under the heading GOVERNMENT FUNDED SOCIAL HOUSING. The purpose of that clause is to support the development of social housing projects funded under the Commonwealth's Nation Building Economic Stimulus Plan.
The scope of cl 52.41 is defined in cl 52.41-1 in the following terms:

Scope This clause applies to the use or development of land for accommodation recommended for funding by the Department of Human Services (Office of Housing Victoria) under the Social Housing Initiative of the Commonwealth's Nation Building Economic Stimulus Plan.

We have nothing before us to indicate that this condition is inserted in furtherance of the purpose or scope of cl 52.41. We are not satisfied that it has anything to do with that clause or its purposes. In fact, although there are portions of the planning scheme that refer to the need for affordable housing, we think that Mr Canavan is justified in his claim that there is no policy support in the planning scheme for a condition in these terms.
We were referred to two cases in this connection. The first of them is MacRiver Pty Ltd v Yarra CC[9]. That was quite a different sort of case to the current one. It concerned a development plan known as the Jaques Development Plan proposed for approval under cl 43.04-3 (Schedule 4) of the Development Plan Overlay under the Yarra Planning Scheme. The main controversy in that case seems to have been about public open space. However paragraph [12] of the reasons appears under a sub-heading posing the question as to whether there should be a commitment to an inclusion of "affordable housing". We find no mention of "social housing". There was some reference to "10 market entry units" and the paragraph goes on to say

Council sought to include a commitment that 5% of the dwellings would be utilised for affordable housing. What is meant by affordable housing, who provides it and how it is provided are very complex issues not simply solved by including a prescriptive requirement in a development plan. We agree with Mr Canavan QC[10] that the provision of affordable housing is very difficult to control in practice ...

Although we regard the expression "affordable housing" as being more specifically comprehensible than "social housing", we also think that the problems discerned by the tribunal in the MacRiver case have even more application to the proposed condition 4 in the case before us.
The other case mentioned is Yarra Community Housing v Greater Geelong CC[11]. That was a failure appeal about a "residential village". "Residential village" is a land use term defined in the planning scheme. It is a different concept to the proposed "dwellings" which are the subject matter of the present case. The orders in that case were made by consent. The entire residential village proposal was to provide accommodation for low income occupants who had demonstrated need for affordable housing with the new facility to be managed by an established operator in the field namely Yarra Community Housing. The only passage that might really be said to have relevance to our present case appears in paragraphs [33] to [35] of the reasons.
The discussion there is to note that there is strong strategic policy support for that type of "community affordable housing facility". The passage makes reference to affordable housing and public housing but not "social housing".
It takes "judicial notice" of there being a shortfall of "public/affordable housing in Victoria as part of a nationwide problem". To take judicial notice of it means that the tribunal took it to be common knowledge of which evidence was not required.
There was also reference to another tribunal case of Kairouz v Darebin CC[12]. There was reference there to a long waiting list for "public housing" in Victoria and to cl 16 in the State Planning Framework Provision of the planning scheme.
Clause 16 deals with housing and cl 16.05 with "Affordable housing". The objective there is

To deliver more affordable housing closer to jobs, transport and services.

Clause 16.05-2 sets out strategies for improving housing affordability and the increase of supply for well-located affordable housing. These strategies include ensuring land supply continues to be sufficient to meet demand, the encouraging of a significant proportion of new development to be affordable for households of low to moderate income and facilitating a mix of private, affordable and social housing in activity centres, strategic development sites and Transit City projects. We note that the reference is to "encouraging". This is the only planning scheme use of the expression "social housing" that we are aware of. The phrase is mentioned without any definition of what it means except that it appears to be in contra distinction to private housing and even affordable housing. Such vagueness may be acceptable in a general policy provision but hardly in a permit condition. We mention it here only to note that it does not clarify the uncertainty of the proposed condition.
As we have observed, these provisions refer to public housing and affordable housing, the latter of which might be said to be provided in this development without the assistance of a condition like number 4. There is no other mention of "social housing". Furthermore, it also appears that anything more than market provision as here contemplated would call for a good deal more consideration and perhaps planning and preparation, than a mere opportunistic and apparently ill-considered insertion of a condition.
We do not think that the references to other cases or the planning scheme employing other expressions afford any support for this "social housing" condition.
Mr Canavan suggests that there is no proper nexus between the condition and the proposal if condition 4 is meant to mean more than what would apply in the event of the condition not being included. He also observes that it would be inequitable to impose such a burden on one particular proposal. We note that there is no justification of the selection of 15% as an appropriate figure, or other clarification or justification of the condition. We agree that there are problems, both in relation to equity and nexus, noting Mr Canavan's suggestion that there would at best be a need for a broader strategy framework. He goes onto suggest that the condition may well be invalid as falling foul of s 62(6) of the Planning and Environment Act 1987 (PE Act). The interpretation and understanding of subs (5) and (6) of s 62 have proved to be difficult. We do not undertake to resolve such difficulties in this case as, in any event, we are not satisfied that it is appropriate to include this condition. Apart from questions of equity and whether it fairly and reasonably relates to the proposed permission, we remain in doubt as to its scope, intention and meaning, including what is meant by the expression "social housing".

We also have significant concern about condition 7 which reads
1. The applicant must supply a comprehensive Travel Plan from that submitted with the permit application which supports the requested level of parking reduction for the site to approved by the responsible authority. The Travel Plan must articulate how the developer intends to promote sustainable travel behaviour by individuals travelling to and from the site.
We note that such a condition was considered and rejected, in our opinion for good reason, in The First Stone Pty Ltd v Darebin CC[13].
The criticisms made in that case might have been sufficient to dissuade any attempt to defend condition 7 as proposed for this permit. It was said, on behalf of the responsible authority, that the condition had been effectively invited by the permit applicant voluntarily submitting a travel plan for this development. That is an elaborate 13 page document prepared by consultants called GTA Consultants commissioned by Erison Pty Ltd after conducting various surveys and investigations. It recites a good deal of information already provided in the application, and contemplates subsequent reports again to repeat such things. It is hardly correct to say that this document was volunteered in as much as the responsible authority purports to require such plans to be submitted with such development applications in accordance with its four page document entitled "Travel Plans - Guidelines for Planning Permit Applications", undated, but with a six page pro forma guide to the preparation of a plan bearing the date 2007.
This document purports to "require" the submission of travel plans although we are not aware of any planning scheme or statutory justification for such a requirement. We note that the planning scheme does impose such requirements where that is intended. Although no doubt inspired by what it considers to be worthy intentions this document appears to be a very elaborate excursion of its own by the responsible authority imposing a purportedly mandatory requirement and going well beyond the planning scheme or statutory justification. It is highly elaborate and involves a degree of detailed social control not commonly imposed in Victoria. It is uncertain as to who is to bear the responsibility of the obligations it seeks to impose, including ongoing obligations with monitoring and future reports. There is scant recognition of the realities of development and residential practices with insufficient identification as to who is to be responsible for any failures to comply with the required regime or how such people are to be identified and whether such obligations can be lawfully imposed upon them by means of such a condition.
The tribunal, in The First Stone case, declined to impose a similar condition. It said that there was no problem with the admirable objectives behind the notion of the plan and conditions in relation to it or attempts to encourage people to use or own motor cars less and employ other modes of transport considered to be more favourable from an environmental point of view. Apart from difficulties of identification and enforcement, the tribunal at [52] expressed concern about the validity of such a condition, terms of the tests of condition validity. In that connection reference was made to relevance, reasonableness and certainty. We will not impose this condition.

Condition 10 Overseeing of Construction by Experienced Architect

Proposed condition 10 provides
1. As part of the consultant team an experienced architect must be engaged to oversee the design, intent and construction quality to ensure that the design and quality and the appearance of the approved building is maintained.
Similar conditions were imposed by the tribunal in Bamfa Nominees v Darebin CC[14]. In that case the tribunal was asked to impose a condition that, except with the written consent of the responsible authority, the development permitted by the permit was required to be supervised by specific named architects. In that case the tribunal gave oral reasons with just a brief summary attached to its written determination. It recognised the purpose as being to seek to ensure that the quality of design and materials were in fact realised in the subsequent construction of the development. The case was a failure review under s 79 PE Act although the responsible authority subsequently determined that it would have granted a permit subject to conditions. The controversy before the tribunal was limited to two conditions. The tribunal modified the relevant one to a wording consistent with condition 10 now before us. It is not clear whether the argument in that case was as to the naming of a specific architect or was it there was opposition to the condition as a whole. It may be that there was not opposition to the permit condition in its final form.
Condition 10 is objected to in on the basis that it is an unnecessary imposition. In our experience it has not been normal to impose conditions of this sort unless there are specific or special circumstances, and we are not satisfied that such a condition is warranted in this case. Of course, if the conditions and endorsed plan thereunder are not complied with there are remedies.

Several other conditions, including 6 and 7 were mentioned where adjustments to wording were sought. These were not objected to. This is a permit applicant's application for review under s 77 PE Act. As such, the whole question of conditions is put in issue. We therefore consider ourselves free to adjust the wording or setting out of other conditions where we have considered that warranted in the interests of clarity, good English expression or proper form.
The draft conditions submitted by the responsible authority conclude with a series of notes. Whilst such notes can be included in the permit document they are not part of the permit itself, nor are they part of our order.

[1] This is a reference to cl 55 of the Darebin Planning Scheme and the "ResCode" standards therein.

[3] The Neighbourhood Character Study Final Report January 2007 refers in its Table of Contents to Appendices 8 and 9 but the parties acknowledged the electronic version of the NCS does not contain an Appendix 9 hence the parties relied upon an extract from Appendix 8.

[4] As identified on page 76 of the NCS.

[5] Adjacent to the frontage of 4 Bridge Street the wall height is a little higher at approximately 7. 2 metres.

[6] The designation of a share car space on-street is a permanent designation so that the space cannot be used by any other cars.

[7] As evidenced by the parking restrictions in Bridge Street of one and two hours throughout the day and the evening.

[8] To 0.53 of a space per dwelling resulting in 22 not being provided with a car space (rather than 18).

[12] The only reference given is tribunal number P253/2008. No medium neutral citation number was supplied and the case does not appear on Austlii.

[14] [2009] VCAT 1034, see paragraphs [2] and [6]-[7].

Building Regulations 2006

Merri Merri Developments Pty Ltd v Darebin CC

At a glance

Court

Decision date

Source

Judgment (121 paragraphs)

Merri Merri Developments Pty Ltd v Darebin CC (includes Summary) (Red Dot) [2010] VCAT 1045 (9 July 2010)

Merri Merri Developments Pty Ltd v Darebin CC (includes Summary) (Red Dot) [2010] VCAT 1045 (9 July 2010)

Parties

Legislation Cited (1)