Victorian Civil and Administrative Tribunal|1999-07-31

SMA Projects v Port Phillip CC [1999] VCAT 1312 (31 July 1999)

Multi dwellings, Heritage overlay, Effect of local policies, Neighbourhood character, Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

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

2. Before the use and development starts, a landscape and site facilities plan including the following information must be submitted:

a. location and description of existing vegetation to be removed and retained;

c. details of the species of trees and vegetation to be planted, (description to include height and breadth at planting stage and at maturity);

This plan must be approved by the Responsible Authority.

3. Before the dwellings are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of Responsible Authority.

4. The garden areas shown on the endorsed plan and schedule shall only be used as gardens and shall be maintained in proper, tidy and healthy condition to the satisfaction of Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

The Council's Planning Inspector shall be advised of the completion of the landscaping so that a site inspection can be carried out. A further inspection will be carried out six (6) months after completion of the landscaping to ensure that species have been adequately maintained.

5. Screening devices must be installed in accordance with the endorsed plans to provide an effective visual screen, and must be completed and maintained to the satisfaction of the Responsible Authority.

6. All external materials finishes and paint colours are to be to the satisfaction of the Responsible Authority.

7. All piping and ducting above the ground floor storey of the building shall be concealed.

8. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

9. Vehicle crossings to gain ingress and egress to and from the site shall be provided only in a location(s) approved in writing by the Responsible Authority.

10. The Applicant/Owner shall do the following things to the satisfaction of the Responsible Authority:

(a) pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for development.

(b) obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatements.

11. Engineering construction plans for the drainage and discharge of stormwater from the site are to be submitted to the satisfaction of the Responsible Authority (Council).

12. The owner of the subject land must enter into an agreement with Melbourne Water for the provision of drainage works and for the acceptance of surface and stormwater runoff directly or indirectly into Melbourne Water's drainage system in accordance with Section 269A of the Melbourne Metropolitan Board of Works Act 1958.

13. This permit will expire if one of the following circumstances applies:

* The development and use are not started within two years of the date of this permit.

* The development is not completed within two years of the date of commencement of works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr James Livingston, Town Planner, appeared on behalf of the Responsible Authority, Port Phillip City Council.

Ms Anita Brieska, a Respondent/Objector, appeared on her own behalf and on behalf of Mr Peter Felicetti.

Mr Michael Wright Q.C with Mr Graham Peake, Barrister instructed by Deaken Graham & James, Solicitors appeared on behalf of SMA Projects Pty Ltd, the Applicant for Review and Permit Applicant. Mr Wright and Mr Peake called Mr Robert Cooper, Landscape Architect, Ms Gail McKenzie, Consultant Town Planner, Mr John Davey, Architect, and Ms Robyn Riddett, Architectural Historian, as witnesses in support of their submissions.

The parties and the witnesses in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the appeal site and its surrounding locality.

Multi dwellings, eleven dwellings in a three level building over a semi-basement car parking level

Port Phillip Planning Scheme/ Residential 1 Zone/ Heritage Overlay and Special Building Overlay.

By letter dated 1st June 1999, Deakens Graham & James, Solicitors wrote to the Registrar foreshadowing their intentions to apply for an amendment of the permit application, i.e:

"We act for the Applicant for Review in these proceedings scheduled to be heard on 11 June 1999.

At the hearing, we intend to request the Tribunal to amend the Application for Planning Permit pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. The amendment sought will be to substitute amended plans (Drawings No SMA2-S1, SMA2-D6A, SMA2-D6B and SMA2-E2 dated May 1999) for the plans originally submitted with the Application for Planning Permit.

The amended plans remove Unit 12 from the development."

At the commencement of the hearing Mr Wright made application to amend the permit application as foreshadowed in the above letter, no person opposed the amendment, and the Tribunal allowed the amendment of the permit application in accordance with Mr Wright's request.

During the course of the hearing I was provided with a substantial array of information relevant to the decision to be made in this Application for Review. A brief summary of this background information is set out below.

The appeal site is a lot located at the north-east corner of Carlisle Street and Albert Street in St Kilda. The site contains a single storey Edwardian or Federation era dwelling in fairly poor condition. The area is quite mixed in its character. To the east and west of the land on the north side of Carlisle Street there is a recent four storey motel building, and two and three storey flat buildings from the inter-war period. To the south across Carlisle Street there are a mixture of residential and commercial uses, to the rear of the site is the rear wall and car parking of the National Theatre, while to the north in Albert Street there are a number of small single storey dwellings.

There has been a previous proposal for the redevelopment of the site for five three storey town houses, each with its own garage with access onto Albert Street. The Responsible Authority refused to grant a permit, and the Permit Applicants were unsuccessful in an application for review to the Tribunal. In this proposal the Permit Applicants have sought to respond to the matters raised by the Tribunal in its decision in that case (Application for Review No 1998/05343).

The following extract from Mr Wright's submission succinctly describes the current proposal:

"It is proposed to demolish the existing single storey dwelling on the site and to construct eight two bedroom and three one bedroom apartments within a three level building over a basement car park.

The building is to be constructed of red face brickwork and render, with a pitched terra cotta Marseille pattern tiled roof.

The basement car park is accessed via a ramp from Albert Street and contains 16 car spaces.

At ground floor level, fronting Albert Street, the building is generally setback between 1 and 2 metres from the street, with greater setbacks at the upper level.

On the south boundary, fronting Carlisle Street, the building is setback generally 1 metre from the frontage at ground floor level, increasing to 2.5 metres at second floor level.

The building is constructed in part to the east boundary of the site at ground floor level, although the "saw tooth" layout of the building, increases the actual setbacks to that boundary and allows substantial areas for landscaping.

The maximum height of the building to the eave line of the second floor is 10.5 metres.

Each dwelling is provided with a deck area of at least 8m2."

The Responsible Authority required the permit application to be advertised, and three objections were submitted to the Responsible Authority. These objections are summarised on page 8 of Mr Livingston's submissions.

Sometime after the submission of the permit application to the Responsible Authority, Amendment C7 of the Port Phillip Planning Scheme came into operation. The Responsible Authority has not made a decision in respect of this application, as it appears they feel inexplicably committed to the policy on the demolition of significant buildings set out in clause 22.05 of the Scheme. Mr Livingston in his submission said,

"As it stands, at present it is still council policy under cl 22.05 to oppose the demolition of a `significant' building. Therefore council cannot formerly consent to the removal of the existing house in order to accommodate the proposal."

The Permit Applicant successfully appealed against the failure of the Responsible Authority to make a decision.

Mr Wright in his submissions appropriately identified the issues at large in this application for review, i.e:

"It is submitted that the issues raised in this appeal are:

(1) whether the demolition of the existing dwelling should be permitted, having regard to the contribution (if any) that the existing dwelling makes to the existing heritage values of the area;

(2) whether the proposed building is sympathetic to the existing heritage values of the area, which question also encompasses the question of neighbourhood character for the purpose of the good design guide;

(3) whether the proposed building and the residential accommodation that it provides complies with the Good Design Guide;

(4) whether the removal of the poplar tree adjacent to the north boundary of the site is appropriate?"

The Tribunal was advised that the Council's own Heritage Adviser did not oppose the demolition of the existing house on the site and this opinion was supported by Ms Riddett's evidence.

Under the Heritage Overlay Control set out in clause 43.01 of the Planning Scheme, the heritage place which is to be conserved and enhanced, and which is not to be adversely affected by development is the place identified in the schedule to the clause. In this case the place is "The St.Kilda Hill Precinct" (HO5). Therefore, this is an area based control and the issue is the effect of the demolition of this building on the significance of the area, that is the heritage place.

The house on the land is a fairly ordinary example of a dwelling of its period. The house is in relatively poor condition but could be restored. The house is in terms of its scale quite inconsistent with the existing and emerging character of Carlisle Street in this location, in particular it is inconsistent with the larger inter-war flat developments which are also of heritage significance located to the east of the land. These factors suggest to me that it is appropriate to allow the demolition of this dwelling in the context of this heritage area provided that the replacement development is itself a suitable development of the land in the context of the area. This is particularly true when the orderly planning of the area is considered in its broader context.

However, this raises the question of how to properly apply the local policy set out in clause 22.05-2 of the Planning Scheme. For the purposes of this policy a significant heritage place includes not only those places identified in the Schedule to the Overlay, but also those places identified in the Port Phillip Heritage Review 1998. In this later document this site is one of more than10,300 sites coloured red on the map associated with the Heritage Review and the Tribunal is advised that this denotes that it is a significant heritage place for the purposes of the policy. The local policy states:

a) Any Significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved."

In the new VPP based planning system decisions in the exercise of discretion should be heavily influenced by the strategic and planning policy framework set out in the planning scheme. What then is to be done in this case in the face of this quite clearly stated policy that any significant heritage place should be conserved. Mr Wright set out a number of arguments or statements on what he regards as the correct approach to the application of policy in planning schemes, I hope I correctly paraphrase his submissions as follows:

* Policy can never be more than a guideline, it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.

* Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.

* This policy is an interim policy, and it is yet to be properly tested through the complete planning scheme amendment process.

* Policy should not be applied in a way which leads to a result which is inconsistent with a proper analysis of the evidence.

* The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes, policy should not constrain a decision maker into accepting something less than the best decision in each case.

Mr Wright in making these submissions relied on the decisions of the Tribunal in, Application for Review No 1998/45799 Alan Power Pty Ltd v City of Port Phillip, and Application for Review No 1998/90776, Casey Pty Ltd v City of Port Phillip.

I accept Mr Wright's submissions and the conclusions of the other divisions of the Tribunal in the two applications for review referred to above. In the new planning system planning decisions are meant to be heavily influenced by policy, and in particular the consistent application of policy can avoid the adverse effects of incremental change which can occur through an ad hoc site by site decision making process. Nevertheless, policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications. I consider that it would be an unfortunate outcome in this application for review if the conservation of this dwelling on this land prevented its proper redevelopment.

It is interesting to note that these matters were taken up in the "Final Report, New Format Planning Schemes, compiled by Helen Gibson, Senior Panel Member, Planning Panels Victoria". This report devotes quite some space on the issue of planning policy, the following extracts are relevant to the issue discussed above and gives some feel for the conclusions of the report:

The municipal strategic statement is intended to provide the broad brush strategic direction of planning schemes and justify the application of zones and overlays. Local policies are important in providing guidance to Councils and applicants in day to day decision making. With the broad discretions provided by zones, local policies provide a means of refinement to achieve identified objectives in the MSS to address key issues and to avoid inconsistency in decision-making. The critical issue will be to what extent they can legitimately constrain the exercise of discretion.

Panels believe that unless policies are carefully monitored, they have the potential to undermine the intent of the planning reform program by becoming de facto zone controls. The emphasis will shift from what is permitted in the VPP zone to what is permitted under the local policy. They will be used as a prescriptive measure rather than as a means to establish a performance base. There will be the temptation to rely on local policies as proscribing the exercise of discretion, in the interests of `certainty', rather than always measuring a proposal against objectives. Alternatively, there will be the temptation to couch objectives themselves as prescriptions.

On the other hand, unless local policies are ascribed a legitimate role in guiding the exercise of discretion over use or development, there is little point in having them. Establishing the appropriate balance will be of critical importance during the initial stages of operating the new format planning schemes.

9.3.2 Constraints on the Exercise of Discretion

Possibly the greatest challenge in managing the new format planning schemes in the future will be to strike a suitable balance in the degree to which local policies can inhibit land uses otherwise allowed or subject to permit.

The panels do not consider that the problem is solved simply by insisting on use of the word "encourage" as opposed to "discourage". If a use is to be encouraged, it will be easy to argue that this means other uses are to be discouraged. At least, that is certainly the way in which many councils will apply the logic to achieve the outcomes they wish.

The panels see the solution in concentrating on the objectives of the policy, rather than on the words of the policy that "encourage" or "discourage" certain uses. If it is these provisions that are concentrated on, then local policies will act as de facto zones and the flexibility that the planning reforms have introduced by way of the new zones will be lost. Instead, it must constantly be asked, irrespective of whether it is stated that a use is "encouraged" or discouraged", what will the outcome be? Will it further the objectives of the policy or will it be contrary to them? If it will do neither (in other words, it is policy neutral), then it must be asked, why not allow the use? There may be other policy or amenity reasons why it should not be allowed. But if there are not, the intent of the reforms is to allow it to proceed, notwithstanding the policy may specifically provide that it is a use to be "discouraged"."

I think that it is quite appropriate for local policies to be expressed in direct language, as in this case, so that all users have a clear statement of the policies intend. Local policies should not merely be a restatement of the more generally expressed strategies or State level policies. However, there is a risk that State authorities will resist directly expressed local policies if responsible authorities fail to recognise the distinction between mandatory controls and the application of policy provisions.

The new proposal and in particular the amended plans have carefully addressed the criticism of the Tribunal in the previous application for review, and have achieved a much better relationship to the character of the locality, in particular the character of Carlisle Street and the adjoining heritage buildings to the east. Ms Brieska expressed a preference for a two storey proposal rather than a three storey proposal. This submission is quite understandable because the scale of development in Albert Street is generally single storey in nature and quite different to that of Carlisle Street. However, it is considered that on balance from the point of view of neighbourhood character this site more properly belongs to and should respect the character of Carlisle Street in which a three storey building is quite appropriate. The amending plans deleted Unit 12 to provide a transition from three storeys to two storeys at the rear of the site, which will to some degree at least soften its impact on Albert Street.

Ms Brieska also argued against the removal of the large poplar located on the rear boundary of the land. It is true that this is quite a substantial tree and is undoubtedly an attractive feature of the locality. Nevertheless, I agree with Mr Cooper's evidence that it is essentially an inappropriate tree on what is a relatively small residential site in a highly urbanised location. I am satisfied that the landscape concept proposed by Colin Landscape and Design rules out in an attractive landscape being established which is more sympathetic to the urban character of the locality.

It is my conclusion that this is an appropriately resolved development which will be an attractive addition to the character of the locality. In this context therefore the demolition of the existing dwelling is appropriate, because of its own very limited contribution to the significance of the area, and because of the positive advantages of the proposed redevelopment of the site, which is respectful of the significance of the heritage area.

SMA Projects v Port Phillip CC [1999] VCAT 1312

At a glance

Court

Decision date

Source

Judgment (85 paragraphs)

SMA Projects v Port Phillip CC [1999] VCAT 1312 (31 July 1999)

Parties