“How High is Too High in the Inner City? The Balancing Act of Planning Permit Reviews”
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
An ever increasing population growth in inner suburban areas, and the need to intensify habitation closer to major infrastructure, has meant ever growing tension between the need to expand choice for inner city living versus the preservation of local amenity and neighbourhood character.
For planning law purposes, it is important to know the relevant weight given by tribunals such as VCAT to these competing considerations, as the number of such disputed applications is only going to augment, not diminish. Just such a balancing exercise was carried out in the case of Gardencity Altona Pty Ltd v Hobsons Bay City Council (VCAT Ref: P631/2012).
In this case, the planning permit applicant was wanting to develop a four storey apartment building over a basement. This would comprise 30 dwellings and 33 carpaking spaces within the basement, with part of the application involving a waiver of three carpark spaces.
There were various objectors to the planning permit application and the Council refused the application, leading to a review by the permit applicant at VCAT.
The land was in a high intensity development area, around 150 metres to the east of the Altona major activity centre, with the train station and beach close by. Council considered that the proposed apartment building would have excessive height and bulk, would fit poorly into the neighbourhood context and that 2 or 3 stories would be more appropriate.
The Tribunal specified 3 key questions for determination and these were:
- Would the development be consistent with the planning policy framework?
- Would the development impose adverse amenity impacts on neighbours?
- Would the development provide acceptable amenity for its future residents?
In carrying out this exercise, Member G Rundell opined that Altona is now “experiencing some intensification that is contemplated in planning policy.”
Firstly, to assess the level of consistency with the planning policy framework, key factors were:
- The context of the site, with its immediate environs
used for residences, mainly single detached homes on each lot, and with the site not being within the Business 1 zone;
- Evidence of some limited change nearby, but mainly closer to the activity centre, with more multi level mixed use apartment buildings present;
- The prevailing built form close to the site being one and two storey dwellings on large lots, with generous setbacks;
- The municipal strategic statement does support local planning policies and encourages further residential development that is more intensive in such areas, with a “more diverse housing stock
to meet changing housing needs”;
- Despite the key objective about more intensification and more choice, both state and local planning policy requires new domestic development in established urban areas to be tempered, and not
conflict in a jarring way with neighbours, neighbourhood character and surrounding land uses;
- Therefore the municipal strategic statement at clause 21 has 6 key objectives, including:
- recognise and strengthen the individual character of the municipality’s villages;
- define a sustainable future for all commercial centres;
- ensure that changes to urban form will support a more ecologically sustainable form of development;
- improve the visual amenity and perceived image of the municipality;
- In addition, strategies in local planning policy include the aim of ensuring that residential development in proximity to activity centres does not compromise existing commercial businesses;
- The preferred character of the immediate precinct had to be respected, in this case, that the diversity of dwelling stock and garden settings should be retained and strengthened;
- Also, the key tenets of the GHDRD (Guidelines for Higher Density Residential Development) require that a new development must respond to its context and
neighbourhood character and that building heights are expected to deal appropriately with that context (including respect for existing setbacks).
In concluding this category of the assessment, the Member considered that the review site was highly suitable for medium density development “at a scale and built form more intensive than the three or so single storey developments that adjoin the site.”
In fact it was also considered that the site represented a “development opportunity that should not be wasted.” However, despite all this, the balancing exercise required any new development to fit properly into its ‘context’ and for that reason it was necessary to carefully assess the design in regard to built form and integration with surrounds.
Next week I will turn to the Tribunal’s findings under the second and third categories of the assessment, and examine the conclusion finally reached by the Tribunal on this appeal. I will also look at what this means in similar case circumstances.
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© Lovegrove Smith & Cotton 2014