Another roof top. A different result.

I recently posted on a decision that allowed an amendment to a permit to contruct an apartment on what had previously been put forward to VCAT as a roof top terrace.

In the recent case of Tan v Melbourne CC [2015] VCAT 142, we see the other side of the story. As all practitioners know there is no such thing as a straight forward case in planning. In Tan the Tribunal declined to grant a permit for the contruction of a roof top terrace on a carport in East Melbourne. The Tribunal said;

26. I find the terrace’s rear screen does not reasonably limit the impact on the amenity of Ms Tan’s property. I find the design of Ms Tan’s property relies on its northern aspect to such an extent that the imposition caused by this screen is unreasonable. Ms Tan’s dwelling and courtyard relies on its northern aspect to provide its amenity with regard to the sense of openness from its living spaces and courtyard. Having inspected her property, I find this amenity value balances on a knife’s edge. The existing walls and fences impede and compress this sense of openness so that it is finely balanced with the dwelling’s requirements. 

27. In this context, I find the 1.7 metre screens would upset this balance to an unreasonable degree. I make this finding based on the proposed height and width of the entire structure (being the existing car port wall, the additional structure required for the terrace’s floor and the screens above this floor) in combination with its proximity to Ms Tan’s property. (my emphasis)

The decision confirms the principle that every planning case is about its individual facts.

Tribunal not a “rubber stamp” to consent orders.

In Giardina v South Gippsland SC [2011] VCAT 924 (18 May 2011) the Tribunal has restated the principle that it will not simply grant a planning permit even when parties seek one by consent. The Tribunal declined to grant a planning permit “on the papers” and stated as follows

The Tribunal has consistently held the view that it cannot be a mere “rubber stamp” to consent orders requested by parties in a proceeding. Whilst the Tribunal is constituted to hear and determine appeals between parties, its determinations have a wide effect upon the public. It is required to make its determinations based upon considerations and public interest and public policy. This distinguishes the Tribunal from the court exercising civil jurisdiction. Unlike a court, the Tribunal has, and must exercise, an independent responsibility in judgement as to the appropriateness to any determination it makes. The Tribunal always has an obligation to be satisfied that any permit it grants, even by way of consent, is lawful and produces acceptable outcomes within the meaning of clause 65 of the planning scheme.[34]

The matter has been listed for a hearing.

Tribunal ‘s latest on borrowed light.

In South Y v Stonnington City Council  (VCAT) P1011 of 2010 (unreported) 5 May 2011, the Tribunal has endorsed the approach taken in Broadland Capital Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1007 on determining when “borrowed light” is acceptable in a multi-unit development.

In South Y the Tribunal adopted the following passage from Broadland Capital “Factors such as the orientation of units, the depth of the room across which light would be borrowed, what else might intervene between the window and internal bedroom (such as a bathroom wall), the number of units relying on borrowed light, and the overall amenity of other habitable spaces might all be relevant to a decision on this point [42].”

In South Y the Tribunal issued a permit for a limited number of units with borrowed light, the Tribunal required a sliding glazed panel in the wall that separated the bedroom from the living areas. The distance from the light source was 4-6 metres.

When to demolish?

In The University of Melbourne v Minister for the Planning [2011] VCAT 469 the Victorian Civil and Administrative Tribunal (VCAT) considered an application to demolish an existing heritage building and to permit the construction of a scientific research institute.

The case was decided early in late March 2011 and resulted in immediate media interest and criticism of the planning process.

It is interesting to consider cases such as this away from the media glare and investigate the issues at the heart of the Tribunal’s decision.

This case is a prime example of the types of matters the Tribunal must weigh up when determining whether to grant a permit to a large public project.

The University commenced this application because it wants to construct a scientific research institute that will conduct research into infectious disease. The benefit that such an institute will bring to the wider community must be weighed against the detriment caused to the community by the demolition of a heritage building.

In this case the Tribunal determined that the community would suffer greater detriment if the scientific institute were not constructed.

What some commentators appeared to miss at the time that this issue was discussed in the media is that the Tribunal did give weight to the heritage value of Ampol House. However, the Tribunal determined that its heritage value was not sufficient to warrant retention of the building.

This case also confirmed the concept that town planning is not about achieving ideal outcomes. Land particularly close to the CBD is a scarce resource. As a result town planning is about achieving acceptable outcomes that will generate the greatest benefit to the community as a whole. Identifying that benefit and how to achieve it is ultimately what keeps practitioners in the jurisdiction occupied.