January June 2013f.datasrvr.com/fr1/113/48145/Major_Projects_Report_jan-june.pdf · Australia...

January – June 2013

Case name Proposal Hearing date(s)

Client Maddocks' Team

Applicant's Team Key Points Tribunal Member/ Judge/Panel

233 Victoria Street v Yarra CC (Not reported)

Development of 2 separate but nearby sites with similar buildings of 6 and 7 storeys.

4-7 February 2013

Yarra City Council

Advocate: Adeline Lane

Witnesses:

Simon McPherson, urban designer

Robyn Riddett, heritage consultant

Susan Brennan, instructed by Norton Rose Australia

Witnesses:

Stuart McGurn, town planner

Mark Sheppard, urban designer

Jason Walsh, traffic engineer

Bryce Raworth, heritage consultant

Tom Neudorfl, mechanical engineer

Yarra City Council had proposed the inclusion of existing buildings on the two sites in the HO, and sought to argue heritage matters in addition to urban design matters. While demolition matters were not considered, the intention to include the sites in the HO was relevant to whether the built form was appropriate in its context. Also discussed was the merit in the "twin buildings" design philosophy. Ultimately, the Tribunal upheld Council's refusal finding the buildings did not achieve architectural excellence.

Members Deidun and Gray




TJBP Pty Ltd and Mornington Peninsula Shire Council v Brown and Ors [2013] VCAT VSC 173

Appeal on a question of law regarding a decision by the Tribunal to declare a subdivision permit had expired and declaring invalid the certification of a plan of subdivision following expiry of the permit.

20 March 2013

Mornington Peninsula Shire Council

Adrian Finanzio S.C., Rupert Watters

Barnaby McIlrath and Luke English

Stuart Morris Q.C. and Barnaby Chessell, instructed by Best Hooper

The Court held that a subdivision permit expires (for want of completion) 5 years from the date that the plan is certified in accordance with section 68(1)(b) of the Planning and Environment Act 1987 (P&E Act). A permit

condition cannot alter the expiry provision under the P&E Act. This was consistent with the 5 year life of certified plans under the Subdivision Act 1988.

The decision and its implications are described in greater detail in our e-alert: Supreme Court lays down the law regarding expiry of subdivision permits.

Emerton J

Great Prophet Centre Inc v Whittlesea CC [2013] VCAT 1070

Proposed Development Plan for development and use of residential lots and a primary school.

20-21 March 2013

Whittlesea City Council

Advocate: Terry Montebello

Witness:

Mr E Mensforth, traffic engineer

Advocate: Daniel Epstein of Counsel

Witnesses:

Mr J Livingston, town planner

Mr H Al-Khirsany, public officer

The Tribunal was required to consider Council's decision to refuse a Development Plan under Schedule 5 to the Development Plan Overlay (DPO5). DPO5

provides that the plan must be generally in accordance with the Mernda Strategy Plan (MSP) and

associated precinct plans. Council submitted that the proposed incorporation of a school in the Development Plan was not "generally in accordance with" the MSP.

The Tribunal concluded that the inclusion of an additional school would be a "minor departure" (using the words of the MSP) from the overall MSP and the precinct plans. The proposal therefore remained consistent with the key

Member Naylor

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http://www.maddocks.com.au/reading-room/a/supreme-court-lays-down-the-law-regarding-expiry-of-subdivision-permits



http://www.austlii.edu.au/au/cases/vic/VCAT/2013/1070.html








objectives and strategic actions of the MSP and was "generally in accordance with" the plan.

Bunnings Properties Pty Ltd v Kingston CC [2013] VCAT 1257

2 lot subdivision of commercial land – review of condition requiring 5% public open space contribution.

30 April and 16 May 2013

Kingston City Council

Advocate: Chris Wren SC

Adeline Lane and Luke English

Witness:

Alex Hrelja, urban planner and economist

Advocate: Chris Townshend SC instructed by Norton Rose Fulbright solicitors

Witness:

Andrew Rodda, town planner

The Tribunal was required to determine the appropriate percentage of public open space contribution in relation to a 2 lot commercial subdivision of land. The schedule to clause 52.01 of the Kingston Planning Scheme does not specify an amount to be applied. The applicant for review had indicated that it did not dispute that the subdivision would result in some need for more open space.

The Tribunal rejected the notion that 5% should be treated as a 'default' position and held that there must be a nexus between the subdivision and the contribution.

The Tribunal held that, as a matter of logic (and allowing for the possibility that the relevant factors may vary from case to case), 4 factors should be considered in assessing the need:

(a) the existing and likely future use of the land

(b) the extent and quality of open space currently accessible to the land

(c) the amount of land that is reasonably required to satisfy the demand

(d) the cost of providing that land.

Senior Member Wright QC









Ultimately, after applying the above factors to the facts of the case, the Tribunal concluded that the space required to satisfy the need was in the order of 1500 – 2000 m

2. The cost of obtaining that

amount of land in the area would equate to an amount equal to 2.25% of the value of the land.

Clarke v Hobsons Bay CC [2013] VCAT 662

Construction of buildings and works in the form of a four storey building above a basement car park, use of the land for dwellings, reduction of the standard car parking requirement, and waiver of the requirement for a loading bay.

22-24 April 2013

Hobsons Bay City Council


Witnesses:

Rob McGauran, urban designer and architect


Advocate: John Cicero

Witnesses:

Sam D'Amico, town planner


Donald Robertson, traffic engineer

Tim Vernon, landscape architect

The land is Business 1 zoned and is located in a Neighbourhood Activity Centre (NAC), with an

interface to residential land.

The adjoining land is occupied by a heritage (individually significant) building protected by the heritage overlay. The HO also affects that part of the subject land which was previously part of the title of the heritage building.

The Tribunal ultimately found the proposal was acceptable in its strategic and physical context.

Concerns about the impact of the proposal on the adjacent heritage building were dismissed, with the Tribunal concluding that the proposal would not affect the prominence of the heritage building and that the built form relationship of the 2 buildings would not result in any detriment to the heritage building.

Member Deidun








Coles Group Pty Ltd v Monash CC

[2013] VCAT 1030

Use and development of the land for a shop (packaged liquor outlet), including the erection of advertising signage and reduction of the standard car parking requirement.

27 May and 6 June 2013

Monash City Council

Advocate: John Rantino

Witness:

Acting Inspector Stamper, Victoria Police

Advocate: Nicola Collingwood

Witnesses:

Tim De Young, traffic engineer

Charmaine Dunstan, traffic engineer

Colleen Peterson, town planner

The Tribunal was required to determine the breadth of considerations when considering whether to grant a permit to use land for the sale of packaged liquor under clause 52.47.

The Tribunal held that the scope of inquiries were quite narrow and did not extend to consideration as to whether the site was appropriately located for retail use, therefore could not include considerations of 'out of centre development'.

Member Deidun

Kasem Property Group v Wyndham CC [2013] VCAT 971

Development of the land with 30 dwellings, comprising 22 double storey dwellings to the street frontages and 8 single storey dwellings to the rear of the site.

3 June 2013

Wyndham City Council

Advocate: Kim Piskuric

Advocate: Dominic Scally

Witnesses:

Valentine Gnanakone, traffic engineer

John Patrick, landscape architect

David Hulett, (visualisation)

Infill development on large site within a R1Z. The Tribunal considered little weight could be placed on Council’s adopted Neighbourhood Character Scoping Study in assessing neighbourhood character given it was a high level document that was not incorporated into the Planning Scheme.

Member Deidun

Triale Pty Ltd v Manningham CC [2013]

VCAT 918

Proposal to demolish the existing dwelling and construct 23 two storey dwellings.

6 May 2013

Manningham City Council


Advocate: Philip Dalton, town planning consultant, Land Appraisal

Witness:

Mr Terry Hardingham, traffic engineer

The Tribunal considered that the density of the proposal was too intense and would be inconsistent with the neighbourhood character.

The Tribunal criticised the over-reliance on tandem parking and found that this arrangement was not 'convenient parking' as is sought to be achieved under clause 55.03-10.

Member Bilston-McGillen

Wattletree Properties Pty Ltd v Nillumbik

Proposed construction of 23 dwellings.

22-24 May 2013

Nillumbik Shire Council

Advocate: Barnaby McIlrath

Advocate: Gary Testro

Witnesses:

The Tribunal upheld the council's refusal of a medium density proposal on an island site in

Member Carew





















SC [2013] VCAT 913

Mr L. Rigoni, town planner

Mr J. Holdsworth, urban designer

Mr B. O’Brien, (Photomontages)

Ms Charmaine Dunstan, traffic engineer

Mr Tim Vernon, landscape architect

Mr Graeme Lewis, arborist

Mr David Fairbridge, ecologist

Eltham North on neighbourhood character grounds and on the basis that the proposed design was not sufficiently site responsive, in that the proposed residential building abutting the Eltham North Reserve had not been designed to step down the site, was insufficiently setback and would have an unacceptable interface with the adjoining public land. The Tribunal ruled that the 'linear' boundary landscape concept was out of step with the site's setting adjacent to the Diamond Creek Corridor.

Three Penny Lane Towers Pty Ltd v Stonnington CC [2013]

VCAT 806

Construction of 10 storey office building and basement area.

8 - 10 May 2013

Jagen Pty Ltd and others (Objectors)

Advocate: Darren Wong

Advocate: Paul Chiappi of Counsel

Witnesses:

Mr Mark Sheppard, urban design

Mr Maugan Bastone, town planner

Mr Russell Fairlie, traffic engineer

Mr Matthew Green, architect

He also tabled evidence of Mr Lindsay Richardson of Sustainable Development Consultants but the witness was not called to attend or give verbal evidence at the hearing.

The Tribunal held that a 10 storey building, at 33 metres, would be out of character in an area where the preferred maximum height was 19 metres. A building which was almost double the preferred building height for the area could not be accepted as 'moderate change'.

In the context, the building would have had unreasonable impacts on adjoining and nearby properties which were used for commercial and residential purposes.

Member Glynn












Hunt Club Commercial Ply Ltd v Casey CC [2013] VCAT 726

Amendment of the Cranbourne East Development Plan to restrict the size and form of packaged liquor outlets within an activity centre.

27-28 February, 1 March, 16-17 April 2013

Casey City Council


Witnesses Mr J Henshall, economist Ms R Davies, social planner Dr M Livingston, researcher

Advocate: Nick Tweedie of Counsel

Witnesses: Mr R Milner, town planner Mr R Quick, economist Mr G Weston, social planner

The Applicant sought review of Council’s decision to amend a development plan to limit standalone, large-format packaged liquor premises in an activity centre, and to require a social and economic impact analysis to accompany permit applications under clause 52.27. Guided by the decision of Member Dwyer in Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 725 (see below), the Tribunal allowed the application, and required the amendments be deleted. The Tribunal held that: the amendment was not

supported by specific strategy or rationale in the planning scheme

the evidence generally did not support the amendment

for the purposes of clause 52.27, ‘cumulative impact’ associated with packaged liquor permit applications should be assessed according to the clause 52.27 decision guidelines and Practice Note 61.

Member Glynn

Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 725

Amendment of the Cranbourne East Development Plan to restrict the size and form of

16 April 2013

Casey City Council


Advocate: Nick Tweedie of Counsel

In considering the legal question of the scope of the relevant considerations for a responsible authority under clause 52.27 the Tribunal held that:

relevant considerations under

Deputy President Dwyer















packaged liquor outlets within an activity centre. (Legal question).

clause 52.27 were not restricted to impacts which manifest themselves into an amenity impact

a broad concern about the social harm caused by alcohol, the accessibility of alcohol in the community generally, or the potential for the abuse or misuse of alcohol, will rarely (if ever) be a relevant consideration in the exercise of discretion for a particular licensed premises under clause 52.27

whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and wellbeing of a society.

AGC Group Pty Ltd v Boroondara CC [2013] VCAT 767

To construct a three storey building containing 21 apartments with basement car parking for 26 residential car spaces.

6-7, 10-12 February 2013

Boroondara City Council


Witnesses:

Mr A Hutson, architect/urban designer

Mr S Schutt, landscape architect

Advocates: Chris Canavan QC with Nicola Collingwood of Counsel instructed by Planning & Property Partners

Witnesses:

Mr J Patrick, landscape architect

Mr S McGurn, town planner

Mr M Sheppard, urban designer

Mr J Walsh, traffic

The site fronted Canterbury Road and had interfaces with a well-established residential hinterland. The residential hinterland, particularly Mangarra Road, comprised period homes in landscape settings with street trees with dominant canopies.

The Tribunal did not support a design approach that effectively provided different design responses to the less sensitive Canterbury Road interface and the more sensitive residential hinterland interface. It considered

Members Naylor and Chase









engineer

Mr S Howe, arborist

Mr P Little, planning consultant to explain his involvement in the preparation of the photomontage

Mr J Wilkinson in regard to the preparation of Scharpe photomontages.

the building as a whole needed to respond to its context.

The Tribunal considered the proposed design response, both in terms of the built form and landscaping, was not an acceptable fit in its neighbourhood and therefore not respective of neighbourhood character. Accordingly, it refused to grant a permit.

Watkins v Boroondara CC (Red Dot) [2013] VCAT 824

Construction of two double storey dwellings west of existing dwelling.

8-12 and 15-16 October 2012; and

4- 8, 12-13 March 2013


Advocates: John Rantino and Kate Kennedy

Witnesses:

James Holdsworth, architect and urban designer

Ben Kenyon, arborist

Advocates: Chris Canavan QC and Emily Porter of Counsel

Witnesses:

Barry Murphy, architect and urban designer


Simon Howe, landscape architect specialising in arboriculture, horticulture and heritage landscapes

Marc Noyce, civil engineer

Allan Wyatt, landscape architect

Johnny Wilkinson, interior architecture and designer specialising in photomontages


Geoff Carr, botanist

The Tribunal considered a proposal to construct two double storey dwellings at 12 Coppin Grove, Hawthorn. The land within the St James Park Heritage Estate was a highly exposed and steeply sloping site with frontage to the Yarra River.

The hearing commenced in October 2012 but was adjourned until March 2013 following Amendment VC96, introducing new policies and controls for the Yarra River corridor.

While the revised proposal complied with mandatory height limits imposed by Amendment C96, the Tribunal found the overall proportions of the building in terms of its breadth, height and mass were too large to be comfortably integrated into the riverine context. Further, the extent of earthworks proposed was excessive and the landscape strategy would not achieve a setting in which built form was subordinate to and

Senior Member Hewet and Member Taranto









Andrew Biacsi, town planner

filtered by vegetation.

Notably, the Tribunal did not accord the Applicant's photomontages significant weight, expressing doubts that the images accurately depicted existing features and future form and density of landscaping. The Tribunal emphasised the need to carefully select the locations and angle from which images are taken.

Scarabee Holdings Pty Ltd v Yarra CC [2013] VCAT 676

To demolish the existing buildings on the site and construct a four level plus two basement mixed use development with food and drink premises and offices at ground floor and 31 dwellings above.

6 May 2013

Yarra City Council

Advocate: Mimi Marcus

Advocate: Phil Bisset

Witnesses:

Mr Phil Borelli, town planner

Mr John Kiriakidis, traffic engineer

Ms L Dowey, landscape architect

Mr Mark Sheppard, urban designer

In this case, the Tribunal was asked to consider a four storey building over two levels of basement parking to accommodate food and drink premises and offices at ground floor and 31 dwellings above.

The central issue was about the degree of change which is appropriate given the consolidated strategic redevelopment site was on a main road, in the B1Z and on the edge of a NAC.

The Tribunal ultimately found that the proposal was acceptable as it appropriately presented to Heidelberg Road and the R1Z land to the rear of the site.

Member Bensz and Member Gray

Watson v Nillumbik SC

[2013] VCAT 587

Question of law regarding the transitional provisions of the Bushfire Management Overlay (BMO)

3 April 2013

Nillumbik Shire Council


Advocate: Rupert Watters of Counsel

This case involved an application for a planning permit which had been lodged prior to the introduction of the BMO, hence the transitional provisions of the BMO applied, meaning that the application was to be assessed under the Wildfire Management

Deputy President Gibson













Overlay (WMO).

The proposal had been 'informally' assessed by the CFA against the requirements of the BMO (in particular, the 'locational criteria' in clause 52.47) and, following this assessment, Council had refused to grant a permit.

The applicant argued that the WMO involved narrower considerations, and the effect of the transitional provisions was that Council (and the Tribunal on review) could not have regard to the locational criteria in clause 52.47.

For a number of reasons, the Tribunal found that all of the matters set out in clause 52.47, including the locational criteria, can be considered.

This decision, and its implications, are described in greater detail in our e-alert: Taking the blinkers off when assessing applications under the BMO

Chris Real Estate Pty Ltd v Whitehorse CC [2013] VCAT 494

Construction of 51 dwellings and basement car park.

12-14 March 2013

Whitehorse City Council



Witnesses:

Ms C Dunstan, traffic engineer

Mr S Howe, arborist

Mr J Patrick, landscape architect


This case involved the construction of 5 apartment buildings and 15 double storey townhouses on a large site (9,240 square metres). The Tribunal accepted that the policy drivers direct a modest level of change for the site, although given the size of the site, there is scope for larger and diverse housing forms. However, the Tribunal considered that the proposal was too intense

Senior Member Baird and Member Keddie

http://www.maddocks.com.au/reading-room/a/taking-the-blinkers-off-when-assessing-applications-under-the-bmo











Mr J Glossop, town planner

and incongruous with the surrounding development.

The Tribunal identified a number of flaws in the design, including a lack of space around and between buildings and a lack of articulation to the buildings' facades. The Tribunal also found that the level of visual bulk to adjoining interfaces was unacceptable.

Goodbay Apartments Pty Ltd v Yarra CC [2013] VCAT 400

93 dwellings in six buildings of between three and five storeys.

The dwellings comprise 57 townhouses and 36 apartments.

25-26 March 2013

Yarra City Council



Witnesses:

Mr Andrew Biasci, town planner

Mr Mark Sheppard, urban designer

Ms Charmaine Dunstan, traffic engineer

Mr Christopher Goss, architect

The main issue for the Tribunal was whether the top two storeys of Building A produced an acceptable planning outcome after balancing the relevant polices in the scheme, mainly urban consolidation, character and urban design policies.

The Tribunal found that, while the design of the two storeys required changes (i.e. to the setback and external finish colour), removing the top two storeys goes beyond what is necessary to properly balance the relevant policies in the scheme.

Member Code

Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council [2013] VCAT 521

The proposal is to use and develop the land for the purpose of a wind energy and for a minor utility installation

29, 30 and 31 January, 5, 6, 7, 8, 12, 14, 15, 18, 19, 21, 26, 27 and 28 February, 1, 4, 6, 13, 14 and 18 March 2013

Mitchell Shire Council

Advocate: Maria Marshall

Witnesses:

Mr Aaron Organ, ecologist

Mr Craig Czarny, landscape architect

Advocate: Tim Power

Witnesses:

Mr Brett Lane, ecologist

Ms Debra Butcher, town planner

Mr David Fuller, erosion & salinity expert

Mr David Black, public health expert

This was the first wind energy facility application to be heard by the Tribunal since the Minister for Planning handed back planning powers to Council.

The decision addresses a wide range of issues, including:

acoustic impacts

landscape values and visual impacts

Senior Member Wright QC

Senior Member Liston















Dr Kym Burgemeister, acoustic engineer

Mr Chris Turnbull, acoustic engineer

Mr David Moir, landscape architect

the 2km rule and the meaning of 'existing dwelling' in the planning scheme

removal of native vegetation and impact on threatened species (including EPBC Act species)

erosion and salinity

health impacts associated with infrasound.

The Tribunal has not finally determined this application, having determined that the precautionary principle requires it to consider whether there is a 'causative link' between the health impacts complained of surrounding existing wind farms, and the operation of the wind farm. The parties have been granted leave to lead further evidence on the health issue. The hearing is listed for directions on 27 September 2013.

The Tribunal has issued an interim decision, determining that, but for the health issue, it would issue a permit on the merits.

SMA Projects Pty Ltd v Yarra CC [2013] VCAT 436

It is proposed to construct a mixed use, but predominantly residential, development on a disused former industrial site, known as the

4-8 February 2013

Yarra City Council

Advocate: Michelle Quigley SC instructed by Mimi Marcus

Witness: Mr C Czarny, urban designer

Advocates: Adrian Finanzio SC and Mr Ian Pitt SC

Witnesses:

Ms A Ring, town planner


Among other things, the Tribunal was asked to consider a financial feasibility of this proposal as a private investment issue. The Tribunal concluded that, while it was not a relevant factor in this case, there might be limited circumstances in which the financial feasibility of a proposal may be a relevant factor, or more

Senior Member Hewitt and Member Read








Yorkshire Brewery site. A number of buildings on the site of State Heritage significance were proposed to be restored as part of the proposal to construct new residential buildings ranging from 3 storeys to 17 storeys

Mr R Papaleo, economic feasibility

Mr J Talacko, environmentally sustainable design consultant

Mr T De Young, traffic engineer

Mr P Lovell, heritage consultant

Mr A Wenn, landscape architect

likely, one of a range of factors that may form part of the balancing exercise the Tribunal is required to undertake.

The Tribunal was also asked to consider the weight to accord to each witness called by the applicant that had formed part of the team involved in this proposal from the early stages of the permit application process. The Tribunal determined that the weight that the Tribunal accords to each witness that appears before it needs to be considered in the context that the Tribunal is an expert Tribunal. In assessing the weight to be given to evidence, the Tribunal not only needs to be alert to the extent of the witnesses involvement in the project, but it also needs to be realistic about the extent to which a witness engaged by a party to a proceeding can ever be completely impartial. The Tribunal must assume the responsibility of assessing the credibility and reliability of the witness by focusing on the merits of the evidence being presented.

Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation & Ors [2013]

Proposed introduction of 65 gaming machines

20-24 August and 10-14 December 2012

Mount Alexander Shire Council

Advocate: John Rantino

Witnesses:

Colin Gill, forensic accountant

Advocate for the Victorian Commission for Gambling and Liquor Regulation (VCGLR): Liam Brown of Counsel

Advocate for the Maryborough Highlands Society: Paul Caillard of

The Tribunal overturned the VCGLR's approval of the premises for 65 gaming machines.

It was not satisfied that the proposal would not result in a net detriment upon the community of Castlemaine. As such, the proposal failed the 'no net

Deputy President Dwyer












VCAT 101 Bonnie Rosen, social planner

Dr David Bednell, community survey expert

Jim Coad, creator of time lapse DVD

Dave Pugh, St Luke’s Anglicare

Sean Attard, Salvation Army

Counsel

Advocate for Enough Pokies in Castlemaine Inc: Ron Merkel QC, Susan Brennan of Counsel and Steven Castan of Counsel.

detriment test' under the Gambling Regulation Act 2003.

Key influencing factors included the lack of confidence which the Tribunal had in the proposed venue operator - the Castlemaine Sports and Community Club, the uncertainty surrounding the community contribution offered by the venue operator, the likely increase in problem gambling caused by a trebling of gaming machines in Castlemaine and the significant amount of community opposition to the proposal.

The Tribunal determined that the proposal would detrimentally alter the character of Castlemaine, without necessarily providing clear benefits in return.

Adamson v Yarra Ranges SC [2013]

VCAT 683

Development and use of land for the purposes of a single dwelling.

3 April 2013

Yarra Ranges Shire Council


Advocate: Anthony Snooks, solicitor

Witnesses:

Mr Lincoln Kern, ecologist

Mr John Nicolson, fire expert

Council refused a permit to construct a dwelling on the narrow, triangular shaped site in a high bushfire risk location.

The CFA had consented to the proposal, imposing conditions requiring the maintenance of defendable space to the lesser of 60 metres (10 metres inner and 50 metres outer) on the property boundary, in circumstances where the property boundary would be 24 metres from the north elevation of the dwelling and 3 metres from the south.

The Tribunal held that the Victorian Bushfires Royal Commission was a 'game changer'

Member Rundell









and determined that the focus is on a site's context.

The Tribunal agreed with Council's assessment that the site was too dangerous for the proposed dwelling and refused to grant a permit.

This decision, and its implications, are described in greater detail in Maddocks e-alert: Taking the blinkers off when assessing applications under the BMO

Pappos v Darebin CC [2013] VCAT 831

Construction of seven dwellings within a three storey building.

9 April 2013

Darebin City Council


Advocate: Tania Cincotta

Witness: Mr Sam D’Amico, town planner

Council issued a notice of decision under delegation. Council then passed a resolution to oppose the grant of a permit at the Tribunal. The Tribunal held that Council could change its position at the hearing provided that it did not attempt to rescind the lawfully issued NOD. In Pappos v Darebin CC [2013] VCAT 831, Member Bennett refused to grant a permit, setting aside Council's decision but upholding its position advocated at the hearing.

Member Watson

Adams v Yarra Ranges SC [2013] VCAT 616

The characterisation of the commercial activity taking place on the land

28 March 2013

Yarra Ranges Shire Council


Advocate: Steve Kaylock (Consultant planner)

This was a repeat appeal regarding the characterisation of use as a 'Store' or contractors' depot. The use involved 4 trucks and two trailers parked overnight in a new shed. The Tribunal following its earlier decision characterising the use as a 'Store' and refusing the application. The Tribunal considered that the use was not intensive enough to be a contractors' depot.

Member Martin















Middle Creek Properties Pty Ltd v Wodonga CC [2013] VCAT 258

Subdivision of land

20 February 2013

Wodonga City Council


Advocate: Ian Pridgeon

Witness: Peter O’Dwyer, manager of planning and environment

The decision involved four complex and interrelated proceedings. The proceedings related to a range of issues arising from a question as to whether the subdivision had commenced. This involved interpreting whether the phrase 'first stage' had the same meaning as 'Stage 1' in the permit. The Tribunal found in favour of Council in all 4 proceedings. It made a declaration that the permit had expired ('first stage' had the same meaning as 'Stage 1') and that the permit should not be extended, primarily due to the introduction of the BMO and the absence of any other factors favouring an extension.

The case is a reminder of the importance of using consistent terms when referring to the same thing within a planning permit.


Peter J Mulcahy and Associates Pty Ltd v Whittlesea CC [2013] VCAT 375

Subdivision of land into 9 lots

24 December 2012

Whittlesea City Council


Advocate: Mr P Mulcahy, surveyor and planning consultant

Council sought a 5% POS contribution in the form of land. The land was in the same area where Council had unsuccessfully sought to persuade Heritage Victoria to set aside part of the land for heritage reasons. Even though the largest lot, being more than half of the overall land area, was unlikely to be able to be further subdivided for heritage reasons, the Tribunal imposed a 5% POS contribution. The Applicant also resisted a contribution in the form of land but said any land contribution should be in a different form than that

Member Cimino
















sought by Council. The Tribunal following earlier decisions held that the choice regarding the location and form of POS is for the council and not the subdivider. Council successfully received a 5% land contribution in its preferred location.

Friends of The Surry Inc v Minister for Planning [2013] VCAT 157

Amendment to the planning scheme

22 October 2012

Minister for Planning


Advocate: Rupert Watters of Counsel

The Minister for Planning had made himself the responsible authority for planning permits for certain land under the Glenelg Planning Scheme. The Minister had granted a number of permits which were being challenged in the Tribunal. Shortly before the hearing, the Minister, in his capacity as the planning authority, under the Planning & Environment Act 1987 amended the Scheme to introduce site specific controls allowing the proposed developments without a planning permit, avoiding the need for a hearing. An objector sought an order against the Minister for costs thrown away as a result of the amendment. The Tribunal dismissed the application for costs. It held that costs can only be ordered against the responsible authority and the conduct relied upon for costs application was the Minister's conduct as the planning authority. This conduct was not relevant to the question of costs.

This decision may have important implications when costs are sought against councils when their conduct as the planning authority










is the subject of a costs application.

Recycal Pty Ltd v Knox CC & Ors [2012] VCAT 1955

Use and develop land for materials recycling (metal and plastics recycling facility)

29-31 October, 1-2 November 2012

Knox City Council

Advocate: Susan Brennan instructed by Nicole Sommer

Witnesses:

Andrew Rodda, town planner

Gustaf Reutersward, acoustic engineer

Advocate: Peter O'Farrell of Counsel

Witnesses:


Rob Burton, acoustic engineer


Jason Walsh, traffic engineer

The application was for a metal recycling facility in the Business 4 Zone.

The primary question for the Tribunal was: is this the appropriate location for this metal recycling facility? In answering this question, the Tribunal considered:

Will there be unreasonable amenity impacts to neighbouring land if a permit is granted, due to noise and dust?

Is the site an appropriate location having regard to the strategic policy direction for the area in the planning scheme?

Is the use properly characterised as a 'transfer station' and prohibited?

The Tribunal held that it was not an appropriate location for the use proposed and upheld Council's refusal. The amenity impacts would be unreasonable and the use would undermine the strategic policy direction for the area.

Senior Member Rickards & Member Bennett








1045 Burke Rd Pty Ltd v Boroondara CC & Ors [2013] VCAT 1108

To demolish existing buildings and the associated fence and to construct a four storey building above a basement car park for 33 dwellings

20-24 May 2013



Witnesses:

Peter Lovell, heritage consultant

Rob McGauran, architect

Jeremy Gobbo QC and Susan Brennan

Witnesses:


Charmaine Dunstan, traffic engineer

Alan Wyatt, landscape architect

Mark Sheppard, urban designer

Bryce Raworth, heritage architect

Roger Beeston, heritage consultant

Mark O’Dwyer, architect

Samantha Slicer, architect

The proposal was to demolish significant buildings within a site specific heritage overlay and construct an apartment development. The site was a large parcel of land located at the corner of Burke Road and Rathmines Road, Hawthorn East, in close proximity to the Camberwell Principal Activity Centre.

A legal question raised in the proceeding was the Tribunal’s ambit of discretion. Council argued that the Tribunal’s ambit of discretion was confined to a consideration of heritage matters when determining whether a permit for demolition should be granted under the Heritage Overlay. It relied principally on the National Trust principles in support of this argument.

The permit applicant argued that the Heritage Overlay creates a permit trigger for demolition and buildings and works and that where there are multiple permit triggers for a proposal, the planning considerations relevant to all permit triggers must be taken into account in making the decision whether to grant a permit for the proposal as a whole. It was also suggested that there was Supreme Court authority that, even where an individual determination has been made in the case of each control, in deciding whether to grant a permit it is necessary for a responsible

Senior Member Liston

Member Davies









authority to consider the matter overall, in addition to considering individual permissions.

The Tribunal agreed with the position advocated by the permit applicant and followed the Tribunal’s previous decision on the issue in The University of Melbourne v The Minister [2011] VCAT 469 (and others). It considered that cases that Council relied on that expressed a contrary view, were exceptions and not consistent with the current practice of the Tribunal.

The Tribunal held that, in deciding whether the proposed demolition is acceptable it is not limited to considering only matters pertaining to heritage. The discretion in relation to demolition should be exercised with reference to all relevant considerations, including planning policy for urban consolidation, housing diversity, sustainable development and urban design.

Accordingly, it found that while it did not support demolition on heritage grounds, it determined to grant a permit for the proposal on the basis of other relevant considerations, in particular, the strategic location of the site and the quality of the design.

Council has appealed the decision to the Supreme Court on the point of law raised in the proceeding.




Yarra C149 (PSA) [2013] PPV 41

To introduce changes to the Heritage Overlay in the Yarra Planning Scheme as a result of a review of gaps to the existing heritage provisions

Directions Hearing: 19 November 2012

Panel Hearing: 12-14 and 18-19 March 2013

City of Yarra Advocate: Adeline Lane

Witnesses called:

Nigel Lewis, architect, conservation consultant

David Helms, planner, heritage specialist

Natica Schmeder, architectural historian and buildings conservator

Various submitters

Advocate: Ian Pitt SC

Witness called:


Advocate: Matthew Townsend

Witness called:


Advocate: Phil Bissett

Witnesses called:

Peter Lovell, heritage architect


One of the key issues considered by the Panel was the balancing of heritage objectives against other objectives in the Act and Planning Schemes, including economic objectives.

The Panel noted that there are many examples where heritage has been successfully intertwined with new development and incorporated into more intensive land development.

The Panel took the general view that ‘social or economic’ matters relate to broad social and economic considerations - not the negative financial result for a particular owner.

The Panel stated that inclusion of land in a Heritage Overlay does not mean no development can occur. Assessment of a proposal under the Heritage Overlay must be considered in the context of broader planning policy objectives affecting the site.

Ultimately, the Panel found that, whilst application of a Heritage Overlay will require a development to address and consider its heritage significance, any removal or alteration of heritage fabric must be considered in the context of any net community benefit that can be gained in accepting the alteration and/or demolition (as reinforced in recent decisions of the Tribunal).

Alison Glynn (Chair) and Boyce Pizzey

http://www.austlii.edu.au/au/cases/vic/PPV/2013/41.html






Yarra C157 and C163 (PSA) [2013]

PPV 85 (3 July 2013)

To introduce changes to the Heritage Overlay in the Yarra Planning Scheme as a result of a review of gaps to the existing heritage provisions.

Directions Hearing: 28 March 2013 Panel Hearing: 30 April, 1, 3, 13 and 14 May 2013

City of Yarra Advocate: Adeline Lane

Witnesses:

Anita Brady, heritage consultant

Louise Honman, heritage consultant


Various submitters Advocate: Mr Chris Townshend SC and Mr Peter O’Farrell Witnesses called: Bryce Raworth, heritage consultant Stuart McGurn, urban planner Advocate: Mr Peter O’Farrell of counsel. Advocate: Ms Susan Brennan of counsel. Witness called:

Mr Bryce Raworth, heritage consultant

Paul Roser, National Trust of Australia (Victoria) Witness called: Natica Schmeder, heritage consultant

This Panel Hearing followed the Panel considering Amendment C149 of the Yarra Planning Scheme.

One of the key issues considered by the Panel was the appropriate considerations when applying a Heritage Overlay (HO), particularly where the site has development potential and/or where owners wish to make changes to the heritage place.

The Panel recognised that section 12(2)(c) of the P&E Act has been amended (and will take effect no later than 28 October 2013), whereby planning authorities 'must' take social and economic effects into consideration in preparing an amendment, instead of 'may' which was formerly required.

The Panel followed the view of previous panels that an owner's opposition to a HO, on grounds such as impediments to development, costs or impact on property prices, does not itself constitute a reason to exclude a place, provided its heritage significance is shown to meet the threshold.

The Panel was also asked to consider Council's existing local policy on Development Guidelines for Sites Subject to the HO (Clause 22.02), especially in regard to commercial, industrial or

Helen Martin, (Chair) and Neil Longmore









other complex sites. The Panel recommended that the development of more appropriate policy provisions is required to guide the development of these sites.

Ultimately, the panel supported the application for HOs, but recommended that the extent of some HOs and places be reduced and downgraded.

Given the recent amendments to the P&E Act, social and economic impacts are more likely to be raised during the consideration of planning scheme amendments.

January June 2013f.datasrvr.com/fr1/113/48145/Major_Projects_Report_jan-june.pdf · Australia...

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Transcript of January June 2013f.datasrvr.com/fr1/113/48145/Major_Projects_Report_jan-june.pdf · Australia...