Victorian Civil and Administrative Tribunal|2009-08-07

This matter is a conditions appeal in relation to the property at 7 Belgrove Street in Preston. A permit has issued, allowing the construction of a dual occupancy development. Conditions 1(k) and 5 have the combined effect of requiring the Applicant to produce a Sustainable Design Statement as part of obtaining endorsed plans.
The Tribunal's overall findings were that, for a modest development such as this dual occupancy, the contentious conditions are disproportionate to the outcome sought, excessive and lacking a reasonable nexus with the approval granted. A further problem for Council in seeking to justify Conditions 1(k) and 5 was the lack of specific MSS/local policy support for requiring permit applicants to prepare a Sustainable Design Statement ("SDS"). At a day to day level, these seems confusion regarding precisely how the STEPS fits in with the preparation of an SDS (STEPS is a modelling tool to assess the environmental performance off the proposed design). For these reasons, the Tribunal has made orders that the contentious permit conditions be deleted.
However the Tribunal considers it worthy per se that Darebin, Moreland and Port Phillip Councils are collaborating to investigate the opportunities to promote greater built form sustainability though the planning system. In this regard, the Tribunal:
- Considers that the environmental debate has moved forward rapidly in Victoria in recent years, and that the planning system can make a real contribution to greater built form sustainability at a broader design level. However the Tribunal also recognises the on-going potential for duplication/confusion if Councils seek through planning permit conditions to routinely require specific and often expensive items such as a solar hot water system, where policy choices have already been made as to what such items should be a mandatory requirement as part of obtaining a building permit.
- Endorses a number of previous Tribunal decisions that have upheld this type of "preparation of the Sustainable Design Statement" permit condition for larger developments, where the additional costs involved are more proportionate to and can be readily factored into the project budget.

Conditions appeal, dual occupancy proposal, contentious permit conditions requiring the preparation of Sustainable Design Statement ("SDS") as part of preparing the final plans for endorsement, lack of specific local policy support for requiring the preparation of a SDS, issues of equity and potential significant cost of preparing a SDS, contentious permit conditions deleted.

Polizzi v Darebin CC (includes Summary) (Red Dot) [2009] VCAT 1573

In relation to the land at 7 Belgrove Street in Preston, this Application for Review of Conditions 1(k) and of Condition 5 in planning permit No. D/98/2008 issued on 29 October 2008 is granted.
The Responsible Authority is directed to promptly re-issue that permit in otherwise identical form, but with these conditions deleted.

Conditions appeal under Section 80 of the Planning and Environment Act 1987 in relation to Conditions 1(k) and 5.

Dual occupancy proposal for the land at 7 Belgrave Street Preston. Permit has issued, with 23 conditions attached. Preston is a middle suburb location, being an established residential area on the north side of Melbourne.

Residential 1 Zone and, Development Plan Overlay Schedule 1, and Special Building Overlay.

Clauses 12.01, 12.02, 12.05, 12.07, 15.12, 16 and 19.03 for SPPF. In relation to MSS and local policies, Clauses 21.04-1, 21.04-2 and 21.05.

Domus Designs Pty Ltd v Frankston CC [2006] VCAT 1127, Pyx Granite Co Ltd Ministry of Housing and Local Government [1958] IQB 554, Rosemeier v City of Greater Geelong [1997] 20 AATR 86, Metaxas Architects v Moreland City Council [2004] VCAT 1752, Ninety Four Feet Pty Ltd v Port Phillip City Council [2008] VCAT 2484, Drive Projects Pty Ltd v Boroondara City Council [2008] VCAT 2096, Deal Corporation Pty Ltd v Moreland City Council [2008] VCAT 2121, Hasan v Moreland City Council [2005] VCAT 1931, Poulos v Darebin City Council VCAT Ref P2678/2008, A & J Walsh Land Surveyors v Hepburn SC VCAT Ref P2816/2005, D Cominos v Mannington CC [2008] VCAT 180, The First Stone Pty Ltd v Darebin CC (VCAT Ref. P3284/2008 & P276/2009) and Elevli Cameron Architects v Bayside CC (VCAT Ref. P3408/2008).

This matter is a conditions appeal in relation to the property at 7 Belgrove Street in Preston, together with the relevant Planning Permit No. D/98/2008 issued on 29 October 2008. This permit allowed "Buildings and works comprising the construction of two (2) dwellings, including one (1) double storey and one (1) single storey on land within a Special Building Overlay, in accordance with the endorsed plans". The permit was issued subject to 23 conditions.
The Permit Holder has sought the Tribunal's review of two conditions attached to the permit. The first is Condition 1(k), which requires that the fresh plans put forward for endorsement must (amongst other things) include "... Modifications in accordance with the Sustainable Design Statement (refer to Condition No. 5 of this Permit)".
The other condition appealed against was Condition 5, which reads as follows.

Before the development starts, a Sustainable Design Statement detailing sustainable design strategies to be incorporated into the development to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by the Responsible Authority. The sustainable design statement must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, stormwater quality, waste management and material selection.

The hearing of this matter came before me on 29 May 2009. At this time I heard submissions from the two advocates listed above.
It was clarified that whilst the Applicant has in reality complied with the two contentious conditions and endorsed plans have in fact been issued as per the two contentious conditions, the Applicant nevertheless still wishes to pursue this conditions appeal. Mr Rantino acknowledged that if this appeal is successful, the endorsed plans would remain valid, but this would presumably create the potential for the Applicant to seek an amendment of these endorsed plans prior to the commencement of the development. At the time of writing I am not sure whether or not the project is now actually underway. However I agree with Mr Rantino that either way, it is still appropriate that I deal with this conditions appeal on its own merits in the usual way.
In terms of my overall findings, for a modest development such as this dual occupancy, I consider the contentious conditions to be excessive and lacking a reasonable nexus with the approval granted. Hence I have made orders deleting them. However I consider it worthy per se that Darebin, Moreland and Port Phillip Councils are collaborating to investigate the opportunities to promote greater built form sustainability though the planning system. In this regard, I endorse a number of previous Tribunal decisions that have upheld this type of condition for larger developments where the additional costs involved are more proportionate to and can be readily factored into the project budget.
In relation to the more difficult and unresolved issue of how to tackle promoting greater built form sustainability for smaller multi-unit proposals such as that in question here, I have suggested that the relevant Councils could investigate potentially using a simpler/less onerous type of permit condition for such smaller projects, rather than a "one size fits all" approach with the form of permit condition proposed to be used.

The subject land is located on the western side of Belgrove Street in Preston. Preston is an established residential area, being a middle ring suburb on the northern side of Melbourne. There is no dispute per se that the site is suitable for medium density housing.
See my summary of the main features of the planning framework set out above.
There was also discussion during the hearing of a multi-council review into built environment sustainability, which Darebin City Council was involved in, which led to a report known as the "Sustainability Assessment in the Planning Process - Investigation Report" dated 8 May 2007 prepared by Sustainable Built Environment architects and Hansen planners.
This is a lengthy document (it is about an inch thick) but features a useful Executive Summary. This summary sets out the main themes of the document and gives a snapshot of each chapter. The fifth to top paragraph reads as follows.

While state and federal governments are currently prioritising BCA for inclusion of ESD measures there are may strong reasons why ESD consideration should be integrated into both the planning and building framework. Whilst there are strategies for sustainable development at all levels of government, there is a need for a comprehensive sustainability assessment framework which can be used in the day to day planning decision making. In the absence of State Government direction, Councils are using voluntary processes with planning applicants employing tools such as STEPS and SDS.

Chapter 7 deals with how sustainability considerations are being built into planning permit decision making at Darebin, Moreland and Port Phillip Councils, with the summary of it reading as follows.

Chapter 7 sets out how Council sustainability considerations are being incorporated into the planning decision making process at Darebin, Moreland and Port Phillip Councils. Moreland is responsible for administering Moreland STEPS tool whilst Port Phillip administers SES and there is agreement to share these tools, which are free. These Councils encourage planning applicants to voluntarily use the tools and commit to sustainability statement as part their development. The cost of administering the tools, employing expert staff and other associated costs is largely borne by each Council.

If one then turns to Chapter 7, pages 84 and 85 deals with how Darebin's MSS deals with this sustainable design issue, with what the organisational structure and general process is, together with the relevant incentives offered and other costs to Council.
The balance of page 85 and page 86 features the Chapter 7 findings. The more relevant ones for my purposes are set out below.

The three councils encourage the use of tools on planning applications that meet the following criteria:
- 10 or more dwellings, major subdivisions or Council developments (Moreland)
- All applications over 50[1] square metres (Port Phillip and Darebin)

Survey responses from planning staff indicated that they do not have a good understanding of this process or the tools themselves (particularly the SDS tool where only 23% knew what kind of development the tool is used for). This is despite all Council planning staff attending training on the use of the tools.

The effectiveness of current council processes is subject to VCAT, communication between the ESD officer, the planner and the applicant and the voluntary nature of the program.

Whilst all Councils claim to inform applicants of the ESD program upon first contact with the planning department, surveys and interviews indicate that the tools are not often explained until later in the process.

I have scanned and attached at the back of this decision a copy of pages 5, 6, 7 and 8 from the Council written submission, which set out the various MSS and local policy provisions which are relevant to built form, sustainability and environmental performance issues.

The test of whether or not a contentious permit condition is acceptable was usefully set out in the previous Tribunal decision of Domus Designs Pty Ltd v Frankston CC[2], where Members Rickards and Naylor stated as follows.

To be valid, a condition in a planning permit must fairly and reasonably relate to the permitted development or the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the PE Act and relevant planning scheme.

The Tribunal relied here on several landmark previous cases including Pyx Granite Co Ltd Ministry of Housing and Local Government[3] and Rosemeier v City of Greater Geelong (No 1)[4].

As part of his presentation, Mr Rantino referred to various previous Tribunal decisions where the Tribunal had upheld a condition which required an Environmental Sustainability Development Management Plan (or some like plan) to be prepared by the Permit Holder.
In Metaxas Architects v Moreland City Council[5], the Tribunal (as part of approving a permit for shops and dwellings in a ten storey building) upheld the type of permit condition which was referred to, which was quite detailed in its requirements.
At paragraph 102 and 103 the Tribunal made the following comments

Dwellings are not treated equally under the planning scheme provisions. It is generally only medium density dwellings which require planning permits, and can be subject to energy rating conditions different to those set out in the building control. In many instances these are buildings which will be inherently more efficient, in a global context, than dwellings not caught up in the planning control process. Moreover, there are already significant development related cost penalties with these more efficient building types.

In Ninety Four Feet Pty Ltd v Port Phillip City Council[6], the Tribunal granted a permit for 29 dwellings in two/three storey apartments, including a Condition 7 which had a following requirement:

Prior to the commencement of the development hereby permitted the applicant must show ESD measures, particularly relating to the storage of rainwater for use in garden irrigation and solar controls on the west and north elevations to the satisfaction of the Responsible Authority.

In Drive Projects Pty Ltd v Boroondara City Council[7], the Tribunal approved an eight storey mixed use building including a Condition 11 which provides as follows:

Before a building permit is issued, an Environmentally Sustainable Design Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority. The report must address the ESD principles proposed for the site including but not limited to, energy efficiency, water, waste and building materials. Once approved, the report will be endorsed to form part of the permit.

In the decision of Deal Corporation Pty Ltd v Moreland City Council[8], the Tribunal allowed a development of five storey building with basement for offices and up to 61 dwelling. Condition 7 was a very detailed ESD type condition, with the most relevant aspects for our purposes being the following text:

Prior to the commencement of development, a suitably qualified environmental engineer or equivalent must prepare an Environmentally Sustainable Development (ESD) Management Plan in consultation with Council's E.S.D. Unit and to the satisfaction of the Responsible Authority. The plan must provide further detail in relation to the following:

FirstRate assessments for the apartment and townhouse buildings. This should adequately demonstrate the source of the FirstRate values used within the STEPS assessment, as well as the average FirstRate score for the apartment block.
Illustration on plans of the ESD initiatives committed to in the relevant STEPS assessment and 'Sustainable Development Report'.

In Hasan v Moreland City Council[9] which involved a two dwelling development, Council had placed a permit condition requirement for solar hot water systems, rainwater tanks and a 5-star energy rating. With the Tribunal constituted by the then President Justice Morris and Member David Rae, it was concluded that it was lawful but inappropriate to impose such conditions, because all these matters are comprehensively assessed in the building regulations.
At paragraphs 39 to 42 of Mr Rantino's written submission, he quotes from various paragraphs of his Hasan decision, and queries whether the conclusions of the Tribunal in that decision are somewhat self contradictory. He also submits that "A lot of water has now gone under the bridge since then ...".
I was also referred to the decision of Poulos v Darebin City Council[10], being the decision of Member Fong handed down on 17 February 2009. This was also a conditions appeal, with the contentious conditions including the same Condition 5 as is in dispute before me, although there was not before Member Fong any equivalent condition to the Condition 1(k) which I am reviewing.
It is worth repeating Member Fong's comments and conclusion regarding the contentious Condition 5 as found at paragraphs 29 to 33 of her decision.
1. The Tribunal endorses the principle of a sustainable development statement, and that sustainable development is central to the Scheme. It is the implementation by a permit condition in the form of a statement specifying detailed construction methods, building materials, appliances and fixtures, that the Tribunal is troubled with. A careful examination of this condition reveals the extent of details that can be required, one that is impractical in the planning approval stage and one that may overstep the details warranted for the purpose of a planning permit.
2. The Tribunal understands that Darebin has been modelling such a statement based on STEPS (Sustainable Tools for Environmental Performance Strategy) produced by the City of Moreland.
3. This strategy uses a scoring system to determine the sustainability of a development, involving calculations based on the choice of internal building materials, appliances, fixtures, construction methods, waste disposal, and etc, which are over and above of what is deemed to be adequate for Standard B10 of Clause 55.03-5 (energy efficiency).
4. The requirement to specify such a level of details, to be approved in order to satisfy this condition at a late planning permit stage where endorsed plans pursuant to Condition 1 has been approved, landscaping plan approved and the construction of the development imminent: that is when planning approval has been bedded down, can potentially cause further delay and duplication of approvals again. What does not bear thinking is the potential conflict with building approval or other approvals if there is a difference in view of the various materials or appliances. What is very desirable in terms of intent should not translate to practical difficulty, particularly for a requirement that is not sanctioned by the Scheme.
5. As commented at the hearing, the Tribunal is prepared to alert the permit holder to the benefit of a Sustainable Design Statement exercise in the form of a permit note. Condition 5 will be deleted and the intent of this condition expressed as a permit note.

There was discussion at the hearing regarding the STEPS program which is apparently available free on the Council website, with "STEPS" being an abbreviation for "Sustainable Tools for Environmental Performance Strategy".
From the submissions made to me at the hearing, I understand that STEPS is one of a small number of implementation modelling tools which have been prepared to assist developers to assess the environmental performance of proposed development.
I further understand that in practice what is required is for a fairly detailed check list of information to be inputted into the computer program, in terms of the various features of the proposed design. This in turn enables the different aspects of the design to be assessed in terms of its environmental performance, with a view to an overall STEPS score then being provided.
Although it was common ground at the hearing as to how the STEPS program operates per se, there was a difference of views as to rigorously or otherwise Council encourages permit applicants to utilise the STEPS program. In this regard, Mr Rantino submitted that while permit applicants are encouraged by Council to use the STEPS program, this is not a mandatory requirement in terms of what needs to be done by a permit applicant to satisfy the contentious permit conditions.
By contrast, the Applicant Mr Polizzi (who is a building designer apparently doing considerable work in Darebin) submitted that, in practice, he had been told by Council that the use of these STEPS program was compulsory, so as to satisfy the requirements of the contentious permit conditions. In particular, Mr Polizzi emphasised that it took some hours of his time to satisfy the practical requirements of going through the STEPS program, and he argued that in practice Council is looking for an acceptable score under the STEPS program as part of Council being satisfied that the requirements of the contentious permit conditions had been met.

I shall deal now with what I regard as the more straightforward aspects of this proceeding.
First, I think both previous Tribunal decisions and common sense tells us that, unless Councils can justify otherwise, they need to consider each permit application on its own merits in terms of what permit conditions should apply (ie rather than using a blanket approach). By way of example, in A & J Walsh Land Surveyors v Hepburn SC[11] I deleted a contentious permit condition requiring an Environmental Improvement Plan for a certain type of subdivision, on the basis that Hepburn Council was applying it on a blanket basis without any regard to the actual local site conditions. The same principle was applied in D Cominos v Manningham CC[12] which also involved a dual occupancy development.
Second, I support per se the approach taken by the relevant Councils of investigating whether there are opportunities in the planning system to promote more sustainable and innovative housing. In this regard, it is worthy that Darebin, Moreland and Port Phillip Councils have together procured the writing of the November 2007 "Sustainability assessment in the planning process" report. This document clearly has involved a huge amount of work and my initial impressions of it is that it has some interesting/useful commentary and ideas and is well worth a read.
Third, I accept that the Darebin Planning Scheme does (at a more general level) include a real emphasis on environmental sustainability. For example, Element 1 of Clause 21.05 deals with "Sustainability". Various strategies are identified to achieve this aim, including "Encourage the use of ecologically sustainable technologies and equipment such as passive solar design, increased cross ventilation, clothes lines, water tanks, solar hot water systems and photovoltaic panels in the design of new development and redevelopment of existing buildings"[13]. At Clause 21.05-3 one of the criteria nominated for Council to consider in seeking good architectural and urban design outcomes is "Energy and resource efficiency: All buildings, subdivision and engineering works should promote more efficient use of resources and energy efficiency".
Fourth, we know that about four years have passed since the Hasan decision was handed down. In my view the environmental debate has moved forward rapidly in Victoria over these years, particularly with the huge challenges posed by drought/climate change effects such as Melbourne's continuing water shortages/restrictions and the dramatic bushfire risks/loss of life.
To the extent that the Hasan decision stands for the proposition that built form sustainability issues are already comprehensively dealt with in the building approval process, I consider that:
- this proposition still has strong weight in relation to very prescriptive planning permit requirements intended to be applied on a blanket basis eg a blanket requirement that a solar hot water heater must be installed into any new unit. In a situation where policy choices have already been made regarding whether or not these type of expensive appliances should be a mandatory requirement as part of obtaining a building permit, I can see great potential for doubling-up and confusion if the planning system starts venturing into the same very prescriptive policy territory; but
- the goal posts have shifted since Hasan in terms of the potential for the planning system to actively contribute at a broader design level to the aim of greater built form sustainability. I am also conscious here that there can be limits to the sustainability gains at the subsequent building permit stage if the planning approval constitutes a poor sustainability outcome ie the horse may have already half bolted. For example, the sustainability requirements at the building permit stage will always be very compromised if a new dwelling is sited on its lot so as to have very poor solar orientation.
Fifth, there is a significant line of previous Tribunal decisions supporting the type of permit condition being challenged here, but in the context of significantly larger projects. Hence I think the Tribunal's position is already clear in this regard, and the area of uncertainty is more in relation to this type of small project.
Sixth, I think Councils need to be careful to avoid a situation where they ask permit applicants to deal with quite specialised tools or issues, but then fail to adequately resource themselves to properly deal with customer enquiries on these specialised issues. By way of example, I am aware from my previous experience that this can be a problem where a Council has considerable housing stock affected by Heritage Overlays but has a heritage advisor that is only available one or two days a week (potentially causing great frustration for developers affected by that overlay). I also refer to the relevant quote above from the November 2007 report, which includes "Survey responses from planning staff indicated that they do not have a good understanding of this process or the tools themselves...".
If Darebin was to seek to include this type of SDS permit condition widely in residential permits that it issues, this will have real resourcing implications and it seems a concern that Darebin currently only has one part time ESD advisor who I understand works two days a week at Council. However I understand that Darebin is planning to provide additional ESD training to other staff.
Lastly, there seems to be a lack of clarity as to how the STEPS program fits in with Darebin's desire to use this type of SDS permit condition, how early in the application process developers are alerted to the availability of STEPS as a tool, whether or not in practice Council's planners tell permit applicants that it is mandatory for applicants to use STEPS to satisfy such a condition, whether or not there is a minimum score with STEPS that must be achieved to satisfy the relevant Council planner, how much time is needed in practice to do a typical STEPS assessment and so on. Again I refer to a relevant quote from the November 2007 report set out above, being "Whilst all Councils claim to inform applicants of the ESD program upon first contact with the planning department, surveys and interviews indicate that the tools are not often explained until later in the process".

Specific findings of Tribunal regarding contentious permit conditions

The Tribunal's specific findings regarding the contentious conditions 1(k) and 5 is that they are they are not valid conditions when applying the test from the Domus case (see above), and should be deleted from the permit. I rely on two primary factors in reaching this conclusion.
Firstly, the relevant MSS provisions and local policies in the Darebin Planning Scheme:
- are supportive at a general level of promoting greater sustainability eg the reference in Clause 21.05 to encouraging "...the use of ecologically sustainable technologies and equipment"; but
- currently are silent in relation to whether residential permit applicants should have to prepare Sustainable Design Statements ("SDSs") at all, let alone for proposals as modest as a dual occupancy. Similarly, I cannot see any express MSS or local policy support for projects as small as a dual occupancy having to utilise STEPS as a tool in finalising the design of the building in question.

In summary, it makes it more difficult for the Tribunal to support the quite rigorous application by a Council of the need for permit applicants to prepare a SDS when that Council's own policy provisions do not go into this level of detail.

This conclusion is reinforced by the recent Tribunal decision of Elevli Cameron Architects v Bayside CC[14]. This case involved a proposed four storey building in Sandringham which would include 20 units. One of the contentious permit conditions required the permit holder to provide a Environmentally Sustainable Design type report. Although the Tribunal accepted Council's desire that the proposal provide one or two specific design features with environmental benefits, the requirement for an ESD report was rejected in part on the basis that the Bayside Planning Scheme provides no direction that such a report is seen as important by Council[15].
Secondly, there is an obvious tension here between the sustainability benefits of preparing a SDS compared to the extra cost that this adds to a project. In this regard, the Applicant Mr Poulos did not dispute that a SDS may be an appropriate requirement for a larger residential project, but he strongly submitted that the cost of preparing a SDS using the STEPS program is excessive and unreasonable for a small project such as a dual occupancy.
In this regard, Mr Poulos put to me that using the STEPS program is relatively time consuming in terms of entering all the relevant data associated with the development plans, getting a "score" and then considering what design changes might be needed if the initial score is too low. For this development, Mr Poulos put to me that using the STEPS program and making the various design changes added about $3000 to the total project costs of the dual occupancy in question here. I accept that for small projects like a dual occupancy, it is legitimate to review whether these type of extra costs are justified, noting that one of the objectives of the Victorian planning system under Section 4(1) of the Planning and Environment Act 1987 is that it be "fair".
I see my position here (ie one of in-principle support for tackling greater built form sustainability but with unresolved major concerns about the dis-proportionately onerous requirements of the contentious Conditions 1(k) and 5) as consistent with the approach recently taken by Member Keaney in The First Stone Pty Ltd v Darebin CC[16]. In that decision he expressed in-principle support but ultimately deleted a contentious permit condition for a 51 dwelling proposal which required the permit holder to submit a very detailed/prescriptive "Travel Plan" for Council approval[17]. The key text from Mr Keaney's paragraphs 51 and 52 read as follows.

I have no problem in principle with the admirable objectives of Council in facilitating alternative means of transport in preference to forever using the motor car. I also have no problem in Council using all legal and promotional means at its disposal to get that message across by way of brochures, promotional events, subsidies and the like.

However I have great difficulty in connecting this standard Travel Plan with the permission sought in the application and I am bemused as to how it might possibly be enforced...

With both this case and the circumstances before Member Keaney, what is highlighted is the need to combine worthy policy goals with a practical and proportionate approach in how this type of permit conditions are formulated.
In summary, at least in the current situation where the local policy/MSS framework does not make any express reference to the need for permit applicants to provide a SDS as part of the application process, I am unconvinced that these contentious permit conditions fairly and reasonably relate to the fairly modest type of development allowed by this permit. In simple terms, the contentious Conditions 1(k) and 5 are disproportionate to the outcome and are an overkill for this type of small project. There also seems an overlap here with my "inappropriate blanket application of the contentious condition" concerns raised in my earlier Walsh Land Surveyors decision.
For the avoidance of any doubt, I see the position as quite different in relation to larger developments, noting the various Tribunal cases cited above that have supported similar permit conditions for significant projects. Even if for example a larger residential project involved the SDS process adding a five figure extra cost to the project, I would expect that typically this extra cost can readily be factored into the project budget. It is interesting in this regard that in the First Stone decision discussed above which involved a 51 unit proposal, there was a very similar permit condition requiring the preparation of a Sustainable Design Statement that was not challenged by the permit applicant.
Whilst they have been more secondary considerations, I have also given some weight to:
- my concerns mentioned above whether Darebin has sufficient levels of resourcing and internal training to readily cope with a situation where a SDS has to be prepared and processed as part of every multi-unit project in the municipality, extending to developments as small as a dual occupancy. In terms of looking at all options, perhaps Councils in this situation could consider the potential role of external certifiers, if this helps ensure that proper expertise and resources are made available so that permit applications involving SDSs can still be processed expeditiously[18]; and
- the need for greater clarity as to how the STEPS program fits in with the requirements of the type of permit condition which I am reviewing - at the hearing I was getting mixed messages from Council compared to the Applicant whether STEPS is a mandatory or a discretionary tool and whether a minimum STEPS score must be obtained. See my comments above.

For the reasons set out above, the contentious Conditions 1(k) and 5 are to be deleted from the permit - see my orders above.
There seems no "silver bullet" in terms of how big a project needs to be for it to be reasonable for the permit conditions to require that a SDS be prepared. However it is interesting that at page 85 of the November 2007 report it is stated that Moreland looks to apply STEPS as a tool for "10 or more dwellings, major subdivisions or Council developments". Subject to any future changes to the relevant Darebin MSS/local policy provisions, this Moreland position seems a useful alternative to consider as part of this "how big a project" debate.
I can also see potential benefits in the relevant Councils considering a different (simpler, less onerous) type of built form sustainability permit condition that is a more proportionate response for smaller projects. In other words, my impression is that presently Condition 5 is applied by Darebin Council on a uniform basis for unit developments both large and small. An alternative approach would be to have a tailored permit condition for this type of small project which requires some more measured consideration of built form sustainability issues as part of the planning approval process, without going so far as requiring the applicant to produce a detailed SDS using the STEPS program. I can see real potential here for a win-win outcome in terms of a less contentious permit condition for small projects that can still promote greater sustainability, which should give the permit applicant a better quality dwelling plus have broad public policy benefits.

[1] Whilst the number "50" appears here, I understand that this is a typo and the correct figure is 500 square metres.

[13] This is one of the strategies to achieve Objective 3 in relation this Element 1. Objective 3 is to "Facilitate and empower the community to achieve sustainability".

[16] VCAT Ref. P3284/2008 and P276/2009.

[18] We know that currently Darebin employs one ESD officer, two days a week. It is clear that there are consulting companies in Melbourne with specialist expertise in this type of built form sustainability issues, noting that the companies who prepared the November 2007 report were Sustainable Built Environment architects and Hansen planners.

Polizzi v Darebin CC (includes Summary) (Red Dot) [2009] VCAT 1573 (7 August 2009)

Polizzi v Darebin CC

At a glance

Court

Decision date

Source

Judgment (58 paragraphs)

Parties

Cases Cited (1)

Polizzi v Darebin CC (includes Summary) (Red Dot) [2009] VCAT 1573 (7 August 2009)