In brief

The cases of D'Andrea v Boroondara CC [2023] VCAT 1148 (D'Andrea) and Costa v Banyule CC [2023] VCAT 1273 (Costa) concerned appeal proceedings in the Victorian Civil and Administrative Tribunal (Tribunal). In D'Andrea, two objector appeals were raised against Boroondara City Council's decision to grant a permit for the construction of a three-storey apartment building at 570 Riverdale Road, Camberwell. In Costa, the Permit Applicants proposing to construct two double-storey dwellings at 18 Boyce Avenue, Briar Hill, sought a review of the decision by Banyule City Council to refuse to grant a permit for the development. 

Notably, these cases mark some of the first decisions by the Tribunal since the gazettal of Planning Provisions Amendment VC243 (Amendment) on 22 September 2023. The Amendment is one of several amendments made to Victorian planning schemes as a result of recent governmental planning reforms. In particular, the Amendment codified 14 of the residential development provisions at clauses 54 and 55 (ResCode standards). Accordingly, where a proposed development meets a codified ResCode standard, it is deemed to comply with the corresponding objective.

Relevantly, in assessing the implications of the Amendment as they relate to the proceedings, the Tribunal considered whether a proposal that has setbacks and heights on a boundary which complies with Standard B17 of the ResCode standards automatically achieves acceptable neighbourhood character and amenity outcomes (D'Andrea at [26] and Costa at [28]). These two decisions diverged in opinion as to how the Amendment may affect a decision-maker's discretion when conducting an assessment of neighbourhood character pursuant to clause 55 of the ResCode standards. 

Tribunal in D'Andrea had particular regard to the wording of the objectives and standards at clause 55.04-1

In D'Andrea, Member Deidun took the view that any development proposing side and rear setbacks that comply with Standard B17 is deemed to comply with the objective at clause 55.04-1 (D'Andrea at [52]). In this instance, the Permit Applicant undertook to meet Standard B17 via permit condition. Accordingly, it was the Tribunal's view that promising to satisfy Standard B17 intrinsically resolves all assessments of neighbourhood character in relation to height and setbacks from a rear and side boundary. 

In turn, this ultimately negated the ability to argue that the proposal fails to achieve appropriate neighbourhood character outcomes insofar as it relates to height and setback of a building from the side and rear boundaries (D'Andrea at [49]). 

However, the Tribunal determined that while Standard B17 seeks to deal with the height and setback of walls from a side and rear boundary, it does not exclude the consideration of other matters that may influence the visual bulk of a building and any amenity impacts, including building length, articulation, design or materiality, and found that the proposal ultimately satisfied these other requirements for built form (D'Andrea at [28]). 

Tribunal in Costa departed from D'Andrea on the grounds that there were other objectives under a Planning Scheme that required consideration of neighbourhood character 

By contrast, the Tribunal in Costa was of the opinion that the setbacks and height of a proposal do not meet the objective for the purposes of neighbourhood character simply by virtue of meeting Standard B17. Member Naylor departed from Member Deidun's view on the basis that there are other objectives which demand the consideration of neighbourhood character, thus meeting Standard B17 cannot remove the discretion in a clause 55 assessment to consider rear and side setbacks and building height where it relates to neighbourhood character (at [32]).

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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