How High Is Too High In the Inner City? The Balancing Act of Planning Permit Reviews – Part 1

How High Is Too High In the Inner City? The Balancing Act of Planning Permit Reviews – Part 1

26 Feb 2018

By Justin Cotton, Director, Lovegrove & Cotton.

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 policy and 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 wanted to develop a four storey apartment building over a basement. This would comprise 30 dwellings and 33 car parking 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.

For more on the Member’s conclusion on the matter, be sure to check out next week’s article for part 2.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing