About half of the Moonee Valley Council’s planning decisions that have been appealed at VCAT since December 2016 have been overturned, as identified by a MVBlog analysis.

Of the 20 successful challenges to MVCC’s decisions identified by MVBlog, only two have resulted in permits being refused – the other 18 appeals have overturned refusals to grant a permit.

Of 40 instances where MVCC’s planning decisions have been challenged at VCAT, officers have been proven correct in only about two thirds (67%) of cases.

Councillors have a lower rate of success: of the 26 decisions by councillors appealed at VCAT, only 11 have been affirmed (42%), with VCAT overturning 14 of council’s refusals to grant a planning permit, and one approval.

While it’s not clear how these statistics compare with other councils, it’s not a rate that instills confidence in MV’s planning decisions for residents or applicants.

It does suggest that Moonee Valley can do better in its planning decisions.

Moonee Valley Blog has examined 40 decisions made by VCAT where objectors or developers have appealed planning decisions made by the council elected in October 2016, or under delegation in that time.

Council has made more than 40 planning decisions, but I could only find 40 that had been challenged at VCAT. (There may be some I have inadvertently overlooked as the VCAT search functions are not perfect, and Council’s register seems to have some gaps. I have not included 40 Hall St.)

Of those 40 decisions appealed at VCAT (found by MVBlog):

• VCAT has overturned 20 MVCC decisions
  • officers and councillors approved, VCAT refused = 1 (24 Dover St, Flemington)
  • officers approved under delegation, VCAT refused = 1 (54 Taylor St, MPonds)
  • officers refused under delegation, VCAT approved = 4 (see list below)
  • officers approved, councillors refused, VCAT approved = 14 (see list below)

Planning decisions go through two stages: the officers consider the application and, depending on the number of objectors or size of the proposal, either make a decision under delegation, or refer the matter to councillors for a decision.

In 13 of the 40 cases, officers decisions under delegation or recommendations to councillors were inconsistent with VCAT’s final determination.

• Officers ‘wrong’ = 13/40 (33%)
  • officers approved, councillors refused and VCAT refused = 7
  • officers refused under delegation, VCAT approved = 4
  • officers and councillors approved, VCAT refused = 1
  • officers approved under delegation, VCAT refused = 1

• Officers ‘right’ = 27/40 (67%)
  • officers approved, councillors approved, VCAT approved = 4
  • officers approved under delegation, VCAT approved = 2
  • officers refused under delegation, VCAT refused = 7
  • officers approved, councillors refused, VCAT approved = 14

26 of the 40 cases were referred to councillors for decisions – which wer then appealed at VCAT. In 15 of these cases, VCAT set aside the decision of the councillors.

• Councillors ‘wrong’ = 15/26 (58%)
  • officers approved, councillors refused, VCAT approved = 14
  • officers and councillors approved, VCAT refused = 1 (24 Dover St, Flemington)

• Councillors ‘right’ = 11/26 (42%)
  • officers approved, councillors refused and VCAT refused = 7
  • officers approved, councillors approved, VCAT approved = 4

There were 21 cases where officers recommended to councillors they approve the permit, and councillors decided, against this recommendation, to refuse the permit. Councillors’ decisions were affirmed by VCAT in just one third, or seven, of these cases.

• 21 cases where officers approved and councillors refused
  • 14 officers approved, councillors refused, VCAT approved (67%)
  • 7 officers approved, councillors refused and VCAT refused (33%)

 

So what should residents make of this?

Firstly, this is really important information that could be made readily available by MVCC.

As much as ‘the blog’ enjoys research and analysis, it has been time consuming to trace through decisions, and the data bases at VCAT and MVCC are not perfect. Cross-checking with council agendas and minutes has been a lengthy process.

It would be terrifically helpful if MVCC could provide on their website a real-time summary of planning decisions that have been appealed at VCAT – similar to the document below. The current register of decisions must be searched by addresses, does not seem to contain all applications, and does not have links to reports, or decisions.

Secondly, decisions at council could better reflect previous decisions at VCAT.

It’s often said by councillors that VCAT is a ‘lottery’. However, it’s really not. VCAT decisions are made on the basis of planning policy and then an analysis of the proposal in the context of the site. Every VCAT decision is accompanied by lengthy reasons for the decision that provide consistently useful guidance.

It’s not clear why planning recommendations to councillors, or reports from officers, don’t make more reference to the accessible comments from previous decisions.

It’s also not clear whether councillors are given summaries of decisions, or whether the key points made by VCAT members are pointed out the councillors to help them make future decisions.

Certainly, all cases at VCAT are subject to variables including the quality of arguments presented and the member’s experience and specific expertise. However, council and councillors could have a better rate of success at VCAT than fifty percent (or 67% in the case of officers), and references to previous decisions might help to achieve this.

There are common reasons for members’ decisions.

One of the recurring themes is the extent to which the proposal responds respectfully and sensitively to the context of the site – including neighbouring properties. It’s not just a matter of whether the site is on a tram line, or near an activity centre. It’s whether the impacts from the proposal on adjoining properties are reasonable, and whether the design is sufficiently respectful of neighbourhood character.

Examples of some of the reasons for decisions made by VCAT are included below.

Thirdly, decision makers should visit the site of the proposal.

VCAT decision makers visit sites before reaching a decision. This is essential as it enables the members to see the reality of the site context and assess the impacts of the proposal properly.

It makes sense that all decision makers at council endeavour to make site visits prior to making their decision.

In a recent report to Council on planning delegations, it was commented that

“The Department managed 71 VCAT appeals in 2017 of which 19 out of 36 hearings were listed as a ”win” with a substantial increase in Consent Orders from the previous year (i.e. not requiring a hearing). The Department has also calculated the cost of more than 100 appeals to be an average of $2,600 per appeal across all those appeals.”

The MVBlog has only examined 40 appeals that resulted in VCAT decisions (following a hearing) related to planning matters that have come to council since October 2016. This reference, however, indicates that MVCC is aware it is only ‘winning’ about half of its cases at VCAT.

Officers are not always right in their recommendations, and councillors have sometimes been proven right in their refusals. This all leads to frustration for objectors and applicants.

Improvements can perhaps come from everyone having a better understanding of VCAT’s decisions – with regular analyses and summaries being provided to councillors and residents.

Here is the summary of the 40 decisions (apologies for any errors). The document can be downloaded via this link:  Planning decisions in MV doc

Here are examples of reasons for VCAT decisions:

62-64 The Parade, Ascot Vale

• meets the purpose of the GRZ1 as it will provide a diversity of housing and growth that has good access to services and transport adjacent to an Activity Centre.
• falls within a Moderate to High Housing Intensificationarea in Clause 21.05-1. 
• satisfied the scale, setbacks and design of the development respond to the design guidelines in the Neighbourhood Character Precinct Profile (2012) for the Garden Suburban 1 Precinct (GS1)

1144-1154 Mt Alexander Rd, Essendon

• the design response is not exemplary. It demonstrates a standard that is average to good quality. It does not demonstrate a standard that supports the extent of the variations required.
• we find the following aspects of the design response are not of the necessary standard: Pedestrian access to Winifred Street, Public spaces, ESD performance and more …

24 Dover St, Flemington

• proposed extensions are over ambitious on a relatively small site and that they will have unreasonable impacts to the adjoining neighbouring properties.

144 Holmes Rd, Moonee Ponds

• the context of the site is not one which can support this level of change in the form proposed; the combination of some of these aspects that result in the proposal being an unacceptable design response.
• Whilst the number of dwellings is not necessarily unacceptable, the size of the dwellings proposed has not adequately responded to the constraints of the site and requirements of the Scheme.
• not provide an acceptable level of visual relief as would be seen from the streetscape, particularly given the prevalence of single storey built form.
• lack of recess from respective ground floor walls and the materials that are relatively harsh in appearance that result in a proposal that does not respect the existing character of the surrounding built form. In particular it is the presentation of the upper floors to both Huntly Street and also to Holmes Road that do not respect the character in the surrounding area.

7 Fisher Pde, Ascot Vale

• the scale and building mass of the proposal is acceptable against the skyline of the river and consistent with development along the east bank of the river. I am satisfied that the objectives of the DDOs and relevant incorporated plans are met.

100 Glass St, Essendon

• the proximity of the screened balconies at first floor to the sensitive habitable room windows and private open space of the adjacent property to the west. I regard this as unacceptable in both character and amenity terms.
• the siting and modulation of the building at second level to the eastern interface is excessive.
• the relative lack of positive interaction and engagement with the street which stems from the poor layout of the front dwelling.

9 Lincoln Rd, Essendon

• the design response fails to respect the following key attributes that contribute to neighbourhood character:
• the loss of all vegetation from the site including canopy trees, which currently provide a leafy appearance to the character of the streetscape and backyard area which goes beyond the site.
• The unbroken built form at first floor level is particularly problematic. It comprises a length of 27.215 metres representing over 70% of the length of the site. This creates visual bulk and mass that is at odds with the character of the neighbourhood and overbearing to neighbouring properties to the south and north.
• A general design response of medium density residential development sited above garages, that is overbearing for a site that is 548 square metres in area.

12 Michael Court, Niddrie

• I find the three storey scale of dwellings an acceptable response in this neighbourhood as the street contains examples of two to three storey dwellings that respond to the slope of the land. This includes a three storey dwelling at 6-8 Michael Court that sits prominently in the streetscape.
• It is a minor area of non-compliance as a majority of the wall meets the standard due to the steep fall of the land to the west. I fail to see any benefit in reducing the height or increasing the setback of this wall as it will not significantly reduce the amenity impacts to the north or alter improve its presentation in the neighbourhood.

54 Taylor St, Moonee Ponds

• Having inspected the applicant’s property, I am not persuaded that the section of the proposed boundary wall abutting the secluded private open space area of this property is acceptable.
• The height of the wall, however, is not acceptable. It is too high. The visual impact of the wall will detract from the amenity of this neighbouring area. Both the average height of 3.6 metres and the maximum height of 3.8 metres exceed the requirements of standard A11. The resultant visual impact is unacceptable. The wall height should be lowered to comply with the standard.

27 River Ave, Ascot Vale

• Key reasons for this conclusion relate to the extent of built form constructed to side boundaries, the constrained landscaping arrangements and the amount and amenity of SPOS for each dwelling.
• I consider that this design response is not acceptable due to the consequentially limited landscaping opportunities arising from this arrangement. This arrangement also has consequential impacts for the design, amenity and useability of secluded private open space areas

7 Myrnong Cres, Ascot Vale

• I find the presentation to Brisbane Street is too bulky and therefore not sufficiently respectful of the neighbourhood character of the area. I find this is not a site where there is a strong driver to accommodate housing growth that may outweigh this concern. I am also concerned the extent of visual bulk will unreasonably impact the adjoining property to the south.

367 Keilor Rd, Essendon

• the proposal has responded to an acceptable level to the constraints of the site, particularly the dwelling at 156 Deakin Street and will not result in any unacceptable off-site amenity impacts. Because I find that the amenity impacts to this property are not unacceptable (which are discussed in the following section), the balance of policy consideration lends support to the proposal.

23-27 Dennis Ave, East Keilor

• On balance, I find the revised proposal with some additional design modifications, is a suitable design response on what I consider to be a relatively large parcel of land located within a well-established and serviced residential area.
• I find the site’s location offers good access to public transport and a range of local shops, schools and community facilities. The combined site area also provides an opportunity to accommodate some moderate higher density residential development that respects the neighbourhood character setting. This view is consistent with the findings of Member Liston in his assessment of a previous proposal for eight double storey dwellings on the subject land in October 2015

11 Ian Cres, Airport West

• Overall, the development will not contribute to the preferred neighbourhood character.
• consider that the development will be a dominant presence in the outlook from the adjoining secluded private open space areas. While three-storey dwellings can be accommodated on this site in a split-level arrangement given the topography, the third storey elements should be recessed and centralised to mitigate their visual impact.
• My conclusion is that the development does not represent an acceptable neighbourhood character outcome and will have an unacceptable impact on the amenity of adjoining properties.

9 Buckley St, Moonee Ponds

• The policies and provisions of the planning scheme, including the provisions of the GRZ1, that apply to the land provide a legitimate expectation that buildings up to two to three storeys high may be developed within this area. Furthermore, the heights and setbacks of the proposal could be reasonably be expected as the proposed development is set back from the boundary with 11 Buckley Street in accordance with the Standard B17 of clause 55.04-1 (Side and rear setbacks objective) of the planning scheme.

35 Market St, Essendon

• I find the proposal does not sufficiently respond to the site’s character context and circumstances. The following findings, together, lead me to determine that the proposal fails to both respect the neighbourhood character and appropriately contribute to the preferred character:
• The side-by-side format results in two crossovers and boundary-to-boundary presentation which, when combined with the forward position of the development compared with the adjoining properties, results in a dominant and discordant built form.
• The space available for landscaping in the front setback does not compensate for nor maintain and strengthen the garden setting as sought for this location. The loss of the street tree is unfortunate and not preferred, as I discuss below. I appreciate that there are several examples of on-boundary development in the locale but these do not provide an appropriate precedent to be followed across the whole of the subject land and are not a prevailing or predominant characteristic.
• The upper levels of the dwellings extend for much of the length of the development and, while set back from the ground floor by a shallow distance, are unarticulated in the wall plane.
• The mock architectural detailing responds to some of the existing built form but its excessive use, and busyness as occurs in the proposal, is something to be avoided having regard to the design guidelines for Garden Suburban Precinct 1.
• The garage for Dwelling 2 is closely aligned with the double garage immediately to the south-east, albeit more recessed. The outcome is a considerable extent of panel lift garage doors in a location where garages and carports are sought to be less prominent as well as offset from a boundary.

5 Wallace Cr. Strathmore

• I find that the proposed built form is an appropriate response to both the physical and policy contexts that influence the review site. 
• The proposed built form will provide a suitable architectural presentation that successfully responds to the very different built form context that is found to the west and north of the review site, and that which occurs to the east. The proposed height of the development at three storeys is supported by the provisions of the General Residential Zone, which contemplates building heights of up to 11 metres or three storeys. The provision of such a height within the Zone, and the application of the General Residential Zone by the Moonee Valley City Council to this residential area, is recognition that there must be some sites in this residential neighbourhood on which it is appropriate to achieve a three storey development. Of all of the land within this residential neighbourhood, the review site has the most favourable physical and policy context to support a larger built form that is expressly contemplated within this Zone.

6 Bank St, Ascot Vale

• I have determined to refuse the planning permit application. I have reached this decision essentially on the basis that, in my view, the proposed development will be an uncomfortable inclusion in the Bank Street streetscape and will have a jarring effect when viewed from Bank Street.
• notwithstanding the visibility of the existing built form, I still consider that the inclusion of this proposal on this site would be a step too far and would result in a building that is out of place in this street.
• as a building design bearing no relation to the established streetscape – and find the proposal as a whole provides an unacceptable response to neighbourhood character.

53 Doncaster St, Ascot Vale

• whilst on one hand fulfils the policy need for further housing and housing choices, it fails to sit comfortably in its neighbourhood. When assessed against Council’s neighbourhood character policy, it fails to contribute to the character of the area and fails to comply with objective 1 of clause 21.06-4: To achieve contemporary development that is innovative, legible and designed in a manner that responds to its location and context.