Many residents, it seems, are pinning their hopes on the approval of council’s interim height amendments C147 and C148 for the Bentleigh and Carnegie ‘urban villages’. We remind readers that in both of these draft amendments, council saw fit to request, for the most part, only a ‘preferred’ height limit for the commercial and mixed use zones. Bentleigh was to have a preferred 5 storey height limit and Carnegie a preferred 7 storey limit.

At the time many residents asked for mandatory height limits for the entire areas. Council in its wisdom argued that their chances of ‘success’ depended on not asking for too much, so that leaving the majority of land as ‘preferred’ was the best option. Mind, no ‘consultation’ has ever taken place as to whether or not residents felt that 7 and 5 storeys were appropriate or even if 13.5m and 10.5m were appropriate height limits for massive areas of the municipality!

Needless to say, no strategic justification was submitted with these draft amendments and residents were certainly never provided with any such justification. Hence, in part at least, the minister’s delay in rubber stamping anything. The question now becomes, will these amendments solve the problems of overdevelopment? How confident should residents be that a ‘preferred’ maximum height of 7 or 5 storeys will be the magic bullet that curbs developer greed and abuse of the planning system?

In order to answer this question we have perused some VCAT decisions from the past year. They certainly do not fill us with confidence that the option of going for ‘preferred’ height limits will halt buildings in excess of these heights. Below we feature some verbatim quotes from various VCAT decisions where the developers were successful in gaining permits in excess of what the various planning schemes stated as their ‘preferred’ height limits.We quote verbatim:

The starting point for a consideration of the overall height and setbacks of a proposal is the overlay. The discretion to vary the preferred heights and setbacks is appropriately informed by a wide range of factors, including but not limited to those which are contained within the decision guidelines of the overlay. The strategic and physical context of the site will be important considerations when deciding whether to exercise the available discretion, as will the design of the building. The proposal should not be rejected simply because it does not comply with the preferences expressed in the overlay. Not all sites within DDO18 in this location will be capable of achieving the preferred height and not every site will be limited to this height

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/2104.html

It (the application) provides for a form that is in the general height range sought. It is not substantially over the preferred height listed in the table, and we accept that had the proposal been for a seven storey commercial building, its absolute height would not be dissimilar to that proposed for a nine storey, predominantly residential building.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/2044.html

While the preferred height limits are relevant, they are but one factor in my assessment of the appropriateness of the proposed height for the review site. Another important factor is context, and another still is the quality of the overall design response proposed for the review site.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1833.html.

  • The proposed building has a maximum height of 16.5 m, exceeding the preferred height by 2 m. The proposed building is 5 storeys high, one storey higher than the maximum height which appears to be contemplated by the design guidelines. Council and respondents submit that these provisions establish a height limit which should not be exceeded and which when exceeded results in a building which fails to appropriately respect the preferred character within the precinct.
  • I do not think that this is the correct approach to the analysis of the policy framework in respect of this precinct. This approach treats the precinct as a uniform whole and fails to have sufficient regard to fails the diverse factors which influence which should be regarded as an appropriate outcome within different parts of the precinct. These factors include:
  • Some parts of the precinct are very close to the Camberwell Junction Activity Centre, they are as Mr Bissett submitted, within the sphere of influence of the activity centre if not being part of it.
  • I consider that this level of change is not a matter of concern, because it is consistent with the level of change which is anticipated by the zone provisions and the broader planning policy framework as it relates to important activity centres. It is reasonable to expect that the character of the eastern end of Precinct 49 will be transformed over time.
  • In general terms I consider that land within Precinct 49 east of Hastings Street is at least within the sphere of influence of the Camberwell Junction Activity Centre. This factor, together with the association of the land with land in the Commercial 1 Zone and the General Residential Zone lead me to the conclusion that, on suitable sites, buildings in excess of 4 storeys in height may be appropriate, provided that the interfaces with adjoining land are appropriately managed.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1477.html

On balance, I am not persuaded that the extra height of a building that exceeds the proposed mandatory controls by between 1.2 and 2.2 metres will be discernible to a viewer at street level or that it sets a precedent for other buildings that may exceed Council’s desire for a 19 metre height limit. One of the major benefits of a discretionary control is that it allows for some variation around a preferred height depending on the particular site context. I consider that allowing a building to slightly exceed 19 metres does not undermine or offend any of the relevant design objectives proposed in DDO18.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1088.html

SHOULD THE PREFERRED HEIGHT NOMINATED IN THE PROPOSED DESIGN AND DEVELOPMENT OVERLAY BE IMPOSED?

  1. Schedule 19 to the Design and Development Overlay, titled Brunswick Activity Centre – Lygon Street Local Area applies to the site and surrounds. It envisages a five-storey spine (17 metres maximum) along the western side of Lygon Street transitioning through four-storey development (14 metres) along the eastern end of Pitt Street to the area’s residential hinterland further to the east.
  2. The review site is the closest of the ‘four-storey development sites’ to the spine. Due to the strategic decision to apply the spine to existing titles facing Lygon Street, land immediately to the north[2], south and east of the site is earmarked for five-storey development.
  3. Consequently, the Applicants’ say it is reasonable to propose a five level building here, as it will have a comfortable relationship with surrounding buildings. They see a planning detriment in restricting its height. Losing a floor means three less dwellings in a location earmarked for high density residential development.
  4. The Council contests this interpretation. It says that ‘double-dipping’ into the planning policy framework misinterprets the Brunswick Structure Plan. It says that all relevant State and local planning policies were factored into the Brunswick Structure Plan. It says the preferred maximum heights of the Overlay reflect the policy framework holistically.
  5. Further to this, it says the word ‘maximum’, when referring to preferred ‘maximum’ heights in this and similar Overlays, should be afforded its ordinary English meaning. It says it should not be presumed that each and every surrounding development will reach its maximum height. As such, predictions of this site’s future physical context should not presume that five-storey development will occur to the site’s north and east[
  6. Finally, it submits that I should be cautious of promoting incremental ‘cribbing’ of heights. It asks me to acknowledge that an approved building that is one-storey higher than the Overlay’s preferred maximum will be used as ‘leverage’ to justify something taller than the preferred maximum on nearby lots.
  7. These general submissions do not persuade me. The question, when properly put, is whether a proposal responds to its planning and physical context. In other words, direction provided by planning policy and opportunities/constraints resulting from its siting amongst its neighbours must be integrated to provide an acceptable outcome. This is the basis of a performance-based system where every proposal is decided on its merits. In this instance, I find the opportunities resulting from its siting amongst its neighbours allow a five-level building to meet the Structure Plan’s objectives for this location.
  8. I attach little weight to the submission regarding ‘double-dipping’ in this instance. Allowing an extra floor of three dwellings will barely alter the Brunswick Structure Plans outcomes. Further to this, I find the submission is contrary to the generally accepted principle that each proposal should be considered on its merits with due regard for its physical and policy context. I find it reasonable to conclude that the strategic drafting decision to link title boundaries to preferred heights leaves some leeway for variations to the preferred maximum heights.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/254.html

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