This VCAT decision represents an interesting decision on the consideration of policy in the form of an overlay, but it also represents the conundrum of deciding when or if amended plans should be submitted.
The decision involves the case of Scoventure Pty Ltd v Yarra CC (Red Dot) [2024] VCAT 1207 (19 December 2024). It considers a proposal for use and development of an eight- storey office building on an industrially zoned parcel of land in Abbotsford in the City of Yarra.
The significance of this case is in determining if policy, in the form of an overlay, applies to a property outside of the overlay. The short answer is yes, even though a proposed development is outside of a defined overlay area, the policies in the overlay should be considered. However, the extent to which policies are considered depend on the specific context of the site and proposed development.
Equally interesting was the position of Council. In March 2022, a proposed development on the same property was the subject of VCAT hearing Shouman Pty Ltd v Yarra CC (Red Dot) [2022] VCAT 313 (25 March 2022). This decision considered a proposal for an eight- storey office development, which was refused by Council. Prior to the hearing, the applicant submitted amended plans that resulted “in some increased setbacks and a slight reduction in the overall height of the building to a maximum height of approximately 29.9m.”
Based on the amended plans and other conditions to be included in a permit, Council’s position was that it no longer opposes the grant of a planning permit. It submits that the re-organisation of the building’s massing and other modifications have addressed earlier concerns related to the proposal’s visual impacts, equitable development opportunities and parking and traffic. VCAT supported Council’s original decision and no permit was granted.
In the VCAT hearing 2 years later, a planning permit was submitted for an 8-storey office building (with slightly reduced setbacks and height compared to the 2022 proposal). A decision was not made within the statutory timeframe, and the applicant lodged this application with the Tribunal for a review of the Council’s failure to grant a permit. Again, the applicant submitted amended plans prior to the VCAT hearing and Council’s position remained unchanged, which was that a planning permit was not supported based on the following reasons:
- The proposal would result in excessive visual intrusion when viewed from the Yarra River corridor
- The proposed height, scale and mass of the proposed building will create an unacceptable visual impact to the low-rise residential area to the north of Marine Parade
In this instance, although it is recognised that there were changes to policies in the Planning Scheme that were considered, VCAT set aside Council’s decision and granted a permit.
In hindsight, how could this have been different. When the application was submitted that lead to the VCAT hearing in 2022, if the applicant submitted an updated plan to Council at an earlier date, it appears the Council would have issued a planning permit and a hearing avoided.
When the application was submitted that lead to the VCAT hearing in 2024, the 2022 case provided a recorded decision of Council being favourable for a proposal with slightly greater bulk and height, yet the application was not supported by Council.