In Japara Developments Pty Ltd v Knox CC  VCAT 828 the Victorian Civil and Administrative Tribunal (“the Tribunal”) considered a planning application for a 95-place residential aged care facility at Lysterfield, within a Neighbourhood Residential Zone, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Design and Development Overlay (DDO) and Bushfire Management Overlay. Permit triggers included buildings and works under the zone and overlay provisions. Of note, the zone does not require a planning permit for the use of the land for a residential aged care facility, but it specifically requires a planning permit for buildings and works in relation to an aged care facility.
Council had refused the application. The Council’s submission was that its planning scheme supported aged care facilities in better serviced locations, and that the building would adversely affect the area’s identified significant landscape values.
The Tribunal set aside Council’s decision to refuse the application, and ordered a permit granted. Much of the Tribunal’s consideration focussed on the relationship between Clause 53.17 Residential aged care facilities and the zone and overlay provisions. Of particularly interest were the specific requirements of Clause 53.17 that conflicted with Overlay requirements.
Clause 53.17 – Residential Aged Care Facility was introduced to the VPPs by Planning Scheme Amendment VC152 on 26 October 2018 and sets out general requirements and performance standards. The purpose of the provision is:
It includes specific requirements that override some of the mandatory and discretionary requirements often contained in zones and overlays. These requirements apply to building height, site coverage, setbacks, internal amenity and external amenity.
Clause 53.17 includes the following inconsistency provision:
In the course of the Japara Developments hearing, the Council raised four questions of law in relation to inconsistency between the requirements of the DDO that affected the site and the requirements of Clause 53.17-3. On these questions the Tribunal found as follows:
The Tribunal found that yes, it was a requirement.
Yes, a site coverage requirement of the aged care residential facilities provisions is inconsistent with the impervious surfaces provisions of the DDO.
Yes – the inconsistency provision in clause 53.17-3 enables a development that is prohibited under clause 2.0 of DDO3 to be permissible.
Yes – the inconsistency provision of clause 53.17-3 enables a development that is prohibited under clause 2.0 of DDO3 to be permissible.
The Tribunal also noted that:
The inconsistency provision does not override other relevant planning scheme provisions or planning policy more generally. Importantly here, this includes the objectives and other provisions of DDO3. These must all still be considered and balanced in the context of an overall integrated planning decision.
Significantly, clause 53.17 does not refer to neighbourhood character in its purpose or its requirements. What replaces neighbourhood character considerations are:
Council submitted that the proposal’s visual bulk and large form were not appropriate within its physical context, nor within the policy context of the Dandenong foothills. The Tribunal found that this policy direction was challenged by State policy which recognised that residential aged care facilities are an appropriate use in residential areas, and by the provisions of Clause 53.17 that override some requirements of the zones and overlays. In particular, State policy at Clause 16.01-7 for residential aged care facilities seeks to:
Recognise that residential aged care facilities are different to dwellings in their purpose and function, and will have a different built form (including height, scale and mass).
Practitioners should be aware that the Japara Developments decision reinforces the strength of Clause 53.17 and the fact that aged care facilities play by a different set of rules with regards to siting, built form, amenity impacts and neighbourhood character.
A recent report released by the Victorian Planning Authority, provides interesting insight into the workings & efficiency of Victoria’s growth-area Councils. The overview contained in the report states:
In recent years, the State government has unlocked substantial areas of Melbourne’s growth areas for development, via the Precinct Structure Planning (PSP) process. However, despite land being zoned for development there remain significant delays in development processing. While these delays have a number of causes, this project has been designed to specifically target capacity constraints and delays associated with the growth area planning permit assessment process.
The research undertaken by Mesh Planning looks at all seven growth area Councils; Casey, Cardinia, Hume, Melton, Mitchell, Whittlesea and Wyndham and benchmarks them on key performance indicators that influence the planning process and decision timeframes including:
The report highlights where Councils are performing well and provides recommendations where improvement can be made. Clause 1 applauds this open and transparent approach to measuring Council’s performance and seeking to provide meaningful ways to improve the timeframes taken to determine applications. Unfortunately, this research only looked at ‘growth area’ planning permit applications. It would be wonderful if the State Government could extent this sort of research to cover “all” planning permit applications.
The full report can be viewed here: