Over the past year the number of applications for 2 double storeys that have ended up at VCAT is remarkable. We would even go so far as suggest that objections in Neighbourhood Residential Zones are now outpacing  objections for the so-called ‘growth zones’. Most are not due to resident objectors, but to the developer either contesting council’s refusal, or contesting the myriad of imposed conditions.

The mantra of council has always been that the NRZ is ‘protected’ and that the zones bring ‘certainty’ to both developers and residents. The exact opposite appears to be happening. More to the point, every single appearance at VCAT is costing ratepayers money. We remind readers that the so-called ‘protection’ in the Neighbourhood Residential zones date from 2004. Nothing much changed with the new zones of 2013, except for mandatory height and mandatory 2 dwellings – only on ‘average’ sized blocks that is! The Planning Scheme thus basically remained unchanged over this period and onwards to now. Setbacks, permeability, site coverage, etc. all date from 2004!

Thus, if the planning scheme has remained the same for 12 years in relation to Minimal Change areas, then why oh why do we have instances after instances where council fronts up to VCAT with a series of conditions that do not have a hope in hell of getting passed by VCAT given what the planning scheme says? The latest example involves an application in Cushing Avenue Bentleigh. Council sought to impose 6 conditions initially – all of which were either ‘deleted’ or rejected by the Member. And we can’t blame him given the reasons provided below. When ‘standards’ are met, then the developer is home and hosed. What is the point of arguing for conditions that are not supported by the very planning scheme that is the basis for decision making? And what is the point of continuing to ignore the problems with minimal change and expecting to front up at VCAT and win? There is nothing from council to indicate that improvements to the Minimal Change zoning are even on the horizon according to the planning scheme review. Unless this area is addressed, we should expect more of what is shown below.

This condition sought a setback of 3.75 metres from the southern boundary for the length of the elevation, pursuant to standard B10 (Energy Efficiency Objective). The Council officer report indicated that this setback is required to ensure the efficiency of the solar panels located on the adjoining dwelling at 18 Cushing Avenue.

  • At the hearing, the Council confirmed that it no longer wishes to pursue this condition, as standard B20 (Energy Efficiency Objective) is the relevant standard in that instance and that this has been met by the proposed design.
  • While we understand the concerns of the owners of 18 Cushing Avenue with respect to the impacts on their solar panels, I accept the Council’s position that the relevant standard has been met and overshadowing will not unreasonably impact upon their efficiency.

From the submissions presented, the increased upper level rear setback required by the condition is not based on any standard or specific policy requirement. Nor is the increased setback required to achieve the improvement of amenity of neighbouring properties with respect to matters such as daylight or overshadowing

  • I find that the condition is unwarranted for the following reasons:
  • The upper level rear setback, at 5.6 metres, exceeds that required under standard B17 (Side and Rear Setbacks Objective) as modified in the Schedule to the zone (4 metres).
  • The setback proposed allows ample opportunity for the planting of canopy trees which is an outcome desired by policy. The proposed upper level will not impede the canopy of such trees.
  • The upper levels are well setback from the side boundaries. They are stepped in from the ground level footprint, with the setback exceeding the requirements of standard B17 (Side and Rear Setbacks Objective).
  • The upper levels as proposed results in compliance with the requirements of clause 55 with respect to daylight, daylight to northern windows and overshadowing of neighbours.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/2047.html

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