Victorian Civil and Administrative Tribunal|2006-10-11|Before: Mr P, Stuart Morris J

Minawood Pty Ltd v Bayside CC [2006] VCAT 2097 (11 October 2006)

Planning - Planning permit - Extension of time to start development - Changes in planning controls

Minawood Pty Ltd v Bayside CC [2006] VCAT 2097

1 On 30 October 2001 the tribunal granted a planning permit for the development of land at 21 Wilson Street, Brighton. The permit allowed the construction of 21 dwellings over three levels, together with a basement car park. The subject land has an area of 2,377 square metres and is currently used as an hotel and an hotel car park. The land is within the civic precinct of Brighton. The land abutting the subject land is used for a police station; and, across the road from the subject land, is the Brighton Town Hall building, a car park and Brighton library. There is a bus parking bay opposite the subject land.

2 The permit granted by the tribunal contained a condition requiring the development to be started within two years and to be completed within four years.

3 On 23 September 2003 the permit holder requested an extension of time within which to start the development. The council granted an extension of time, thereby extending the commencement date to 30 October 2004. A year later the council granted a further extension, specifying a commencement date of 30 October 2005. Yet a year later the council granted a further extension, this time specifying a commencement date of 30 October 2006.

4 On 29 June 2006 the permit holder requested yet a further extension of the time within which to start the development. On 17 July 2006 the council refused this request. The key reason for the council's decision was that there have been changes in planning provisions since the time the permit was granted which would now impact upon the wisdom of the original decision to grant a permit.

5 A decision to extend the time within which development must start (or be completed) is discretionary. Hence any articulation of factors which might guide the exercise of that discretion should be seen as guidelines, rather than definitive requirements: compare Kantor v Murrindindi Shire Council.[1] Nevertheless, in the context of the present case, the two main considerations which stand out are:

•

whether the permit holder has an acceptable reason for seeking an extension of the time within which the development must start; and

•

whether there have been any changes to planning provisions or planning policy since the grant of the permit which are likely to make the development no longer acceptable.

6 There is no doubt that the time within which a substantial development must start will often need to be greater than is the case with smaller proposals. However this factor is not sufficient to justify an extension of time in the present case. Some five years have elapsed since the grant of the original permit. In the absence of special circumstances, such a lapse of time is too long.

7 The permit holder relied upon an affidavit of Mr Cieran Kayes. This affidavit explains in some detail the reasons why the development has not yet commenced. In particular, Mr Kayes explained that there had been a dispute between members of the property syndicate which had control of the subject land, with the result that the development could not start for commercial reasons. Mr Kayes stated that this commercial dispute has now been resolved, with some syndicate members disposing of their interests to another syndicate member; and it was only in recent times that the commercial opportunity to develop the land had become real. I accept this evidence.

8 There is no evidence that the applicant is seeking to "warehouse" the permit. Rather the extrinsic evidence supports the evidence of Mr Kayes that an internal commercial dispute was the real reason for the delay in the commencement of the project. In any event, there is scope to debate whether there will always be adverse consequences if a developer does not promptly act upon a permit; but it is unnecessary to consider this question in the present context.

9 The matter I have referred to in paragraph [7] provides a basis upon which to allow a further extension. But, in my opinion, it is not decisive: it is necessary to consider the effect of changes in planning controls.

10 The council submitted that there had been significant changes in the planning scheme and in planning policy since the grant of the permit in 2001. Specifically the council pointed to the gazettal of Amendment C2 on 18 March 2004. This amendment introduced new requirements in the schedule to the Residential 1 Zone in relation to such things as minimum street setback, site coverage, side setbacks and front fence height. The council also referred to the gazettal of Amendment C48 on 30 March 2006. This amendment introduced a new neighbourhood character local planning policy at clause 22.07 of the scheme. Pursuant to this policy the subject land is located in an area known as "Precinct B2". This precinct takes in the central Brighton area and is generally bound by Dendy Street, Hampton Street, Bay Street and New Street. The subject land is located near the centre point of this precinct.

11 Mr Truong for the council explained the key changes to the schedule to the Residential 1 Zone which he said might lead to a different outcome if the proposal was considered afresh as of today. It is desirable that I consider each of these in turn and comment upon them.

12 The schedule to the Residential 1 Zone now contains a "requirement" in relation to minimum street setback of new development. The setback provision is:

The greater distance of the setbacks of the front walls of the existing buildings on the abutting allotments facing the front street or 9 metres, whichever is the lesser.

It is important to understand that this requirement is actually a variation to the standards contained in clause 54 and clause 55 of the scheme; and, in turn, is not strictly speaking a requirement, but a provision that may be varied if the objective of a relevant standard will be met. This flags a need to apply such provisions with common sense and having regard to the particular facts under consideration.

13 The subject land has a total site area of 2,377 square metres. However an existing hotel building, which is to be retained, occupies an area of 246 square metres at the south-eastern corner of the site.[2] This hotel is built to the front boundary of the site on Wilson Street. The plans also show the police station building, located on the land to the east of the subject land, having a setback of about 2 metres; and a dual occupancy on the land to the west of the subject land having a setback of 7 metres from the frontage. The permit allows development of that part of the subject land between the existing hotel and the dual occupancy with varying setbacks. However at the point closest to the dual occupancy the setback is proposed to be 7 metres, which will complement the setback of the dual occupancy.

14 If the requirement contained in the schedule to the Residential 1 zone was applied strictly I suppose it would require one to consider the setbacks of the dual occupancy and the police station; and then set back the new building the greater distance of these two existing setbacks. In the present case, however, this is complicated by the existing hotel, which is built to the boundary line. Given this building is to be retained, it really makes little sense to insist on a minimum setback on the whole of the development site that is equivalent to the dual occupancy. Common sense dictates a better outcome would be to accommodate both existing buildings (that is, the existing hotel and the existing dual occupancy). The plans do just that by varying the setback so as to match each existing building. Thus, when properly understood, the current minimum setback provision ought not be regarded as a barrier to the extension of the commencement date for the proposed development. The front setbacks allowed by the permit comply with the relevant objective of clause 55 of the scheme in that they respect both the existing and preferred character of the neighbourhood and make efficient use of the site.

15 Another provision included in the schedule to the Residential 1 Zone is that site coverage is required to be 50% (and not 60% as provided in the Victoria Planning Provisions). The new building area is to cover 1,081.3 square metres, which represents 50.7% of the property, after excluding the existing hotel. I think this is an appropriate method of measuring site coverage in the present context, where an existing heritage building is to be retained over a small part of the site.

16 Having regard to the location of the land in a civic precinct, the fact that the effective site coverage is a little over 50% ought be regarded as inconsequential. I also repeat my earlier observation that requirements contained in clause 55 of the scheme, whether or not varied in a schedule to the Residential 1 Zone, ought not be regarded as fixed and mandatory; it will be necessary also to consider whether or not the applicable objectives have been met. In my view, the applicable objective is met as the site coverage responds to features of the site and respects the existing and preferred character of the area: and this factor does not warrant a refusal of an extension of time within which the development may be commenced.

17 A third provision relied upon related to side and rear setbacks. The applicable requirement contains a formula in relation to the setbacks. However the differences between these requirements and what has been approved are relatively subtle; and need to be considered in the context of the nature of adjoining development and use. On the one side is a site used as a police station. On the other side is a dual occupancy, with buildings erected on or near to the boundary with the subject land, many of them with blank walls. Once again, in my opinion, this change in planning provisions is insufficient in the light of the relevant objective to justify a refusal to extend time to commence the development.

18 Another factor related to the height of a proposed front fence. The relevant requirement in the schedule to the Residential 1 Zone specifies that a front fence should not exceed 1.2 metres in height. However the fence to the property immediately to the west of the subject land already has a fence of 1.8 metres in height. On the other side there is the hotel building, built to the boundary. Clearly the proposed fence (which is to be 1.8 metres in height) will enhance the amenity of the occupant of Apartment 1 in the proposed development, as it will protect an area of private open space. Having regard to the context, which includes the existing hotel, the town hall, the library car park, the bus stop and the nature of the area as a civic precinct, I find it difficult to see how this factor would lead to a different outcome if the proposed development was being considered afresh.

19 It is important that I stress the nature of "requirements" in clause 54 and clause 55, whether or not varied in a schedule to the Residential 1 Zone. A responsible authority has an obligation to do more than blindly apply such "requirements". The planning scheme requires that a responsible authority consider how a proposed development performs against the objectives set out in these clauses, a task which will throw up different answers depending upon the nature of the design and the area.

20 The council also relied upon various provisions contained in its new Neighbourhood Character Policy. This policy is designed to provide design guidance to ensure that development responds to the preferred future character of residential areas. As I have mentioned, the subject land is located in Precinct B2, which is a substantial and varied precinct.

21 Clause 22.07-3 of the scheme (a local policy provision) provides that where a permit is required to develop land in residential areas it is policy to take into account the preferred future character and the precinct guidelines, including objectives, design responses and "avoid statements" for each precinct as described in the policy. However this mandate has two important qualifications. The clause also states that it is policy to take into account:

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The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.

•

Whether the site is located within a residential opportunity area as shown on the Strategic Framework Plan of the Municipal Strategic Statement and the extent to which this may alter the relevance of the design responses to consideration of the proposal.

I note that the subject land is within a residential opportunity area as defined in the Strategic Framework Plan of the Municipal Strategic Statement.[3]

22 Precinct B2 specifies that the preferred future character of the precinct is as follows:

The diverse dwelling styles, with a continued presence of pre-WW2 dwellings, sit within established gardens with occasional tall canopy trees. Side setbacks on both sides, and the setting back of carports/garages from the dwelling, allows for vegetation to flow around the dwellings. New buildings blend with the existing, through use of a variety of materials or colours within front facades, and by respecting the older building styles and scales without replicating them. Open style front fencing improves the visual connection between the dwelling and the street. Street tree planting consistency is improved to provide a unified element to the area.[4]

23 Before delivering this decision I took the opportunity to inspect the subject land and its environs and other parts of the B2 Precinct. What is apparent is that the precinct is not homogenous; and the preferred future character, as described in the local policy, is not realistic if it is to be a universal aspiration. Indeed, the local policy contained in clause 22.07-3, which I have referred to above, acknowledges this. In particular, the immediate vicinity within which the subject land is located has a different built form character to the precinct as a whole: this is not surprising as the land is contained in a civic precinct and is abutted by, and nearby to, buildings with a different character to that the subject of the precinct's aspirations.

24 When one considers the specific precinct guidelines it becomes apparent that these are not really directed at the development of a site such as that the subject of this proceeding. For example, one objective is to maintain and enhance the garden settings of dwellings. But how is that to be achieved in the context of an existing hotel which is built to the front boundary? And what relevance does this have to the development of a car park? Another objective is to minimise the dominance of car parking facilities, with one design response being to avoid underground car parking being accessed from the front of the site where other options are possible. However this design response cannot be applied automatically: it is necessary to have regard to context. In the present case the library car park, the police station car park and the bus stop are all part of that context.

25 It is also important to understand that the subject land is located within a residential opportunity area as shown on the council's Strategic Framework Plan; and local policy requires this to be taken into account, as it may alter the relevance of design responses set out in relation to particular precincts. The proposed development of the land with 21 apartments gives effect to council's objectives for a residential opportunity area.

26 I am satisfied that the permit holder has advanced a sound reason for an extension of the time within which the development may be commenced and has not engaged in some process of deliberately "warehousing" the permit. I am also satisfied that the changes which have occurred to the planning scheme and to planning policy do not militate against the extension of the time to start the development. I propose to extend the time to commence the development for a further two years. Having regard to the lengthy preparatory time necessary for a proposal of this type I am satisfied that an extension for this period is necessary and desirable.

[1] (1997) 18 AATR 285 at 313-314.

[2] The subject land is not strictly oriented north-south, but I adopt this for the purpose of explaining the nature of the development.

[3] An examination of the relevant map seems to show that the applicable residential opportunity area is centred upon the Bay Street Shopping Centre and extends in a south-west direction to just embrace the subject land.

[4] The last sentence is not easy to interpret. Presumably it records an objective to be pursued by the council as manager of roads.

Minawood Pty Ltd v Bayside CC [2006] VCAT 2097

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Minawood Pty Ltd v Bayside CC [2006] VCAT 2097 (11 October 2006)

Parties