Reflections on VCAT and CBD residents’ rights: the hearing on 109-111 Little Lonsdale St

By Bill Allan (Wesley Historic Precinct Action Group)

I attended the three-day (February 29 – March 2) VCAT hearing on the Brady Jones Pty Ltd application for review against the refusal by the City of Melbourne (CoM) to grant a permit for construction of a 20-storey residential hotel at 109-111 Little Lonsdale St.

RMIT research has shown that developers who are refused permits and take the case to VCAT have more than a 70 per cent chance of getting their permit approved. It is likely their chances are higher in the CBD.

The Brady hearing revealed much about why such a result remains likely under the present rules, but it also gave some hope that the overwhelming balance in favour of developers could (and certainly should) change in the future.

Three aspects of this hearing stood out. Firstly, both permitted parties (the council and the applicant) as well the (two-person) tribunal showed a high degree of professional competence throughout. Secondly, the council presented a strong case that took into account discussions of concerns with residents of Regency Towers. Thirdly, however, the process, as well as its inherent bias against city residents, seemed a very inefficient way of managing a complex array of planning information and concerns.

The applicant’s counsel, supported by four expert witnesses, was extremely experienced and very familiar with Brady Group proposals, including the VCAT approved permit for the adjacent site on the adjoining 113-115 Lonsdale St site.

The applicant’s case depended heavily on precedents set by earlier tribunal decisions with regard to CBD residential amenities. These were presented as effectively defining very low standards for outlook amenity expectations for city apartments.

Counsel cited from the tribunal decision with respect to its decision on 113-115 Little Lonsdale St:
Para 28: “We acknowledge that some north facing apartments in Regency Towers will experience a loss of views as a consequence of (its construction). The views, however, will not be obliterated”… (because the relevant apartments also face west).
Para 31: “We accept Ms Hansen’s evidence that the affected apartments will continue to receive a level of daylight which is acceptable in a central city context.”

These and other decisions were interpreted by counsel as setting a de facto standard for outlook of close to zero, which could then be described as acceptable for CBD residents.

Applicant’s counsel also strenuously denied any application of Amendment C262, the amendment to the Melbourne Planning Scheme (MPS) introduced in September 2015. He was undoubtedly correct in denying full application of prescribed podium heights and setbacks.

However, earlier tribunal decisions regarding acceptable levels of outlook amenity were matters of tribunal judgement, which it could be argued, should be opened to fresh examination in the light of the intentions of Amendment C262.

The council’s case against the applicant was very ably presented and gave much more weight to the need to define residents’ rights than in the past. The opening case was made using the city’s Geographic Information System (GIS) 3D mapping tool – the imagery provided an overview including other buildings proposed in the area. It showed the 109-111 proposal in the context of the already approved permit for 113-115 Little Lonsdale, as well as a 39-storey, mixed-use building proposed by the Wesley Uniting Church which would run the entire length of Jones Lane, only 7.5 to 10 metres away from the western side of Regency Towers.

This latter building is still subject to decision and is outside the scope of the hearing, but the GIS showed clearly the need for the amenity impact of individual applications to be examined in the context of overall neighbourhood development.

The need to apply existing policy in the context of the site and its neighbours was central to the council’s case. With regard to interface with the northern side of Regency Towers the development was argued as being simply too close to the boundary and would reduce outlook and light into existing apartments unacceptably.

In the case of 113-115, it had been argued that the need for offsetting was lessened where habitable rooms do not directly face one another. But no offsetting was proposed for 109-111 – habitable rooms would directly face one another with only six metres separation, even less (4.5 metres) between the new tower and north-facing balconies.

Neither the existing MPS nor C262 define amenity rights, but C262 certainly opens both the need to define such rights clearly and the possibility of doing so. Past tribunal judgements, based only on opinion, can thus be questioned. The tribunal will decide on the basis of these and other detailed arguments and supporting documentation.

My third point, however, is that the process of presenting and contesting evidence to the tribunal was extremely cumbersome and depended heavily on rapid perusal of a wide range of printed building plan diagrams, not all of which corresponded to the latest agreed plan.

In contrast, the GIS presentation, while not yet fully developed, allowed a three-dimensional overview of all proposed and existing buildings in the area and showed the relationships of buildings and streetscapes from any chosen perspective.

It does not, at present, incorporate all building form data from the plans, but these can and should be incorporated. Virtually all disagreements between parties in this case could have been illustrated by a more complete GIS presentation, likely with less possibility of dispute and savings in time.

In principle, therefore, the City of Melbourne in conjunction with state planning could establish its GIS as a database incorporating the latest approved plans by developers. Its use could be made a compulsory part of permit applications and, in the event of disagreement between developers and the CoM, these data could be reviewed in their entirety by VCAT tribunals to give a clear oversight of the merits of each case.

Such a development could very substantially improve the efficiency of VCAT hearings and the reliability of information put before VCAT. Possibly VCAT itself could demand that all disputed development plans should be presented in this way.

Residents should also have access to GIS information when development plans are submitted for approval. The CoM, developers, and residents could then develop a shared vision for future Melbourne based on a clear picture of the collective impact of developers proposals and their relation to city planning objectives.

CBD residents surely should not continue to be shut out of this process.

All resident groups should therefore continue to press for greater access to planning information and demand a clear definition of amenity rights for present and future CBD residents as part of completing the CBD Built Form planning process associated with amendment C262.

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