Articles

By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers

Last week, I took a broad look at the tensions between competing planning considerations between the need to retain neighbourhood character and mitigate adverse amenity impacts versus the demands posed by an ever increasing population growth in inner suburban areas.

For planning law purposes the needs in local and state planning policy must be weighed against the best interests of the existing neighbourhood and indeed the needs of future residents associated with the new development. This is particularly evident with multi level apartment buildings (in for example Melbourne) that are literally springing up from St Kilda to Altona.

The case considered last week was Gardencity Altona Pty Ltd v Hobsons Bay City Council (VCAT Ref: P631/2012). To recap, the planning permit applicant sought to construct a four storey apartment building with 30 apartments, over a basement with carparking for 33 spaces (involving a waiver of 3 spaces from the minimum parking requirement).

In response to the application the Council supported the various objectors and refused to grant a planning permit, leading to a VCAT review sought by the permit applicant.

The 3 key questions for determination

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?
After detailed analysis of the various ingredients comprising the planning policy framework, the first hurdle was answered in the affirmative. The Member found that the development:
“…would add to housing choice, contribute to a more compact metropolitan area and be generally consistent with State and local planning policies.”

2 Further Questions

Of course, this was not the end of the matter, as there were two further questions, or categories of questions that are relevant. It was said that the new development had to be a ‘good neighbour’ and fit the existing context. After all, the land was in the Residential 1 zone where ‘neighbourhood character’ is to be respected, and not the Business 1 zone more prevalent in the heart of major activity centres – where a more ‘laissez faire’ approach could indeed suit.

Adverse Amenity Considerations

Would the development impose adverse amenity impacts on neighbours?
Experts in town planning/urban design were called on behalf of both sides of the argument, though noting that the Council was siding with the objectors/respondents.

Two of the experts on the respondent side agreed that a strategic concept of ‘transition’ was a major principle that was largely ignored by the design, particularly in regard to the height and bulk of the building and the relatively small setbacks (only 3 metres to Queen Street and Davies Street).

These two experts and the Council agreed there was a marked inconsistency between the ‘prevailing character’ of the area and a building of four storeys over an elevated basement (slightly elevated due to the high water table).

For their part, the permit applicant adduced expert evidence and suggested that the building would appear as a three storey development with a ‘highly recessed’ fourth level, and that the setbacks would lend adequate options for landscaping (including trees) to filter and screen elevations.

As for amenity to nearby residents more than one of the respondent experts queried potential overlooking or excessive screening and the effect on neighbours to the north and west.

Neighbourhood Character – A Key Consideration

In the final analysis under this question, the Tribunal did not favour the heavier reliance on state planning policy promoted on behalf of the applicant (ie the desire for more robust residential development to provide greater housing choice near main infrastructure and shopping). It was determined that this objective must be tempered by considerations of the existing context and the neighbourhood character policy found within the planning scheme.

Consequently, the Tribunal Member went on:

“This approach places weight on viewing the emerging built form in Davies Street as a transition rather than an abrupt, discordant edge that has quite different form and intensity compared to the east side of that street. The quest to accommodate more dwellings within established areas should not be at the expense of poor urban design that jars and looks out of place.”

Turning to the relevant site, the Member was in agreement with the respondents’ experts that this proposed building was “one level too many”, taking into consideration that the site is within an area of one and two storey dwellings with significant space around them. This building would in contrast be “an impolite and imposing neighbour”, and needed greater setbacks to the north and west interfaces than what was on offer to be congruent with the neighbourhood character.

Amenity & Future Residents

Would the development provide acceptable amenity for its future residents?
There is very little discussion if any on this question in the decision, perhaps because the Member found it unnecessary given the findings under the second question.

Relevant factors to this assessment could include such matters as:

The reduction in visitor carparks sought given the number of likely new residents;
Access into and out of the new building, generally and also for waste management, rubbish collection etc;
The effect on existing traffic and congestion by adding residents to an already built up area;
Consequences of adding a large basement and having to elevate it slightly due to the low water table in the area; and
The possible effects of ‘climate change’ with expected rising sea levels and the prospects of poor drainage for the site.
All of these matters would potentially be of concern to future residents, just as some would be problematic for existing inhabitants. Indeed, increased traffic and congestion could even lead to safety fears and impact on access to retail/commercial premises nearby, thereby affecting the local commercial hub.

Nevertheless, matters such as these were not really explored in the decision, though there was some concern expressed about the low water table and the need to thereby slightly elevate the basement excavation.

In conclusion, the outcome was that the Tribunal knocked back the review application and affirmed the previous decision of the Council that no planning permit would be granted.

It in fact appears that the chief concern was really about the abrupt, discordant progression this development represented rather than a transition away from the prevailing street context.

Form & Character

The Tribunal held:

“The transition to a more robust form needs to respect the prevailing form and character, and be a measured and tempered change rather than an abrupt and overpowering change.”

If you are facing similar problems, on either side of the planning permit ledger, and need assistance navigating the minefield of competing factors, you should seek legal advice now from solicitors with expertise in this field.

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 enquiries@lclawyers.com.au.