[2010] VSC (2004) 18 VPR 229

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1 MOOT COURT 2017 PREPARED BY TIM RETROT VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL PLANNING PERMIT APPLICATION NO. TP418/2016 OUTLINE OF SUBMISSIONS ON BEHALF OF LIONHEART HOMES VICTORIA STREET, SEDDON INTRODUCTION 1. For these submissions and in accordance with the Rules of the Moot Court 2017, the site, locality and planning controls are taken as read. 2. The application to allow the use and development of the review site for the purposes of a multi-storey, mixed-use building with a reduction of car parking was refused by Council on the following grounds: 1. Insufficient car parking; 2. Inconsistency with Clause on the basis of a poor transition in built form that does not respect the neighbourhood character of properties to the immediate east; 3. Second-floor footprint fails to provide equitable development rights for the property to the north. 3. The grounds of refusal have been addressed below. DOES THE PROPOSAL PROVIDE SUFFICIENT CAR PARKING? 4. The proposal incorporates a car share space (for use by occupants of offices and dwellings), 8 bicycle spaces and end of trip facilities. 5. The following is not in dispute: Clauses (Activity Centre Planning) and (Transport) of the Maribyrnong Planning Scheme promote sustainable transport practices in activity centres. The site is located in the Seddon Neighbourhood Activity Centre, which provides a wide range of services including independent grocery and supermarket stores, cafes, restaurants, a post office and other similar services. The Footscray Principal Activity Centre is located 1.3 kilometres walking distance to the north. The site is less than 300 metres from Middle Footscray Station to the north and 650 metres from Seddon Station to the south-east. There is also a bus route running along Victoria Street (with a bus stop at the site frontage) and multiple bus routes within 200 metres walking distance of the site. The site has immediate access to the Principal Bicycle Network (PBN), with bicycle lanes on Victoria Street and facilities on Albert, Charles, Walter and Pilgrim Streets linking to Footscray and other nearby activity centres. The above characteristics result in the site having a walkability score of 89 out of 100, which is classified as very walkable.

2 6. Based on the activity centre location and relevant policy, it is broadly accepted that there is support for car parking dispensation at the site the Tribunal is directed to Mr Minogue s evidence at paragraph and Council s Delegate Report at the first paragraph on page It is therefore the degree of dispensation that is in dispute based on the following: i. Whether the site is close enough to alternative transport services; and ii. Whether the limited on-street supply and onerous parking controls effectively discourage car usage by future occupants. Proximity to transport 8. Council s contends at page 11 of the Delegate Report that: the site is too far from fixed line public transport to cater for the demands of all users. 9. Clause (Liveable and Sustainable Communities) can assist in this regard. The clause outlines the following distances regarding compact and walkable communities for neighbourhoods: 400 metre street walking distance around each existing or proposed bus stop; 600 metres street walking distance around each existing or proposed tram stop; and 800 metres street walking distance around each existing or proposed railway station. 10. It is reiterated that the site is less than 300m from Middle Footscray Station and has a bus route running along Victoria Street (with a bus stop at the site frontage) and multiple bus routes within 200m walking distance of the site. 11. It is submitted that future occupants can elect not to drive to work or residents not to own a vehicle because the site is conveniently located to commuter transport. 12. This was supported by the Tribunal decision in Bardin Planning Co-ordination Pty v Maribyrnong City Council 1, which considered a proposal at 107 Victoria Street, Seddon (located approximately 60 metres to the south of the site). 13. The proposal was for a 3-storey building with ground-floor shop and two double-storey 2-bedroom dwellings above, with zero car parking. The statutory car parking requirement for the proposal was 19 spaces. 14. The Tribunal approved the proposal and accepted at para 21 that the site was: [21] suitably located to take advantage of existing alternative forms of public transport and is not dependent on having on-site or allocated car parking. On-street parking 15. Consistent with the views of Council and Mr Minogue, it is agreed that a key issue is whether the existing parking controls and lack of available on-street parking is sufficient to discourage car usage by future occupants. 1 [2004] VCAT 2276

3 16. Council acknowledge at page 11 of the Delegate Report that a reduction of car parking for dwellings is generally acceptable; however, contend that the proposed reduction of 14 car spaces associated with the office use is not able to be supported. 17. It is submitted that office workers will opt to choose alternative modes of transport for the following reasons: The development is located in an area where Resident Permit parking applies, with the primary alternative being parking restrictions ranging from 15 mins to 2 hours. With this in mind, it is submitted that Mr Minogue s assertion at paragraph that occupants could elect to move their car every few hours is not realistic. The car share enables hire on an as-needs basis for short trips to meetings or off-site locations during business hours. Evidence suggests that car shares are used by commercial businesses during the day and residential uses during the evening and weekends. The reduced provision of on-site car parking and the provision of 8 bicycle spaces including end-of-trip facilities. DOES THE PROPOSAL ALLOW FOR EQUITABLE DEVELOPMENT OF THE PROPERTY TO THE NORTH? 18. Council acknowledge on page 12 of the Delegate Report that the setbacks at the northern interface, although non-compliant with Standard B17, are appropriate given the Mixed Use Zone (MUZ) and policy direction for the Seddon Neighbourhood Activity Centre. 19. Council suggest that Unit 2 could be reconfigured to improve the equitable development rights of the property to the north. 20. It is submitted that a more centralised core would enable a reconfiguration of the apartment from the current northerly orientation to an easterly orientation, which would allow for the equitable development of the adjoining property if the layout were mirrored. DOES THE PROPOSAL PROVIDE A SUITABLE RESPONSE TO THE RESIDENTIAL CHARACTER OF PROPERTIES TO THE IMMEDIATE EAST? 21. The matter for consideration is the competing policy objectives of urban consolidation envisaged by the MUZ and Seddon Neighbourhood Activity Centre versus the existing neighbourhood character of the adjoining residential zone. Council position 22. Council contend that, except for the eastern interface, the proposal generally presents an acceptable architectural and urban design outcome, and there is no dispute that the 3-storey height is appropriate for the site. 23. The eastern interface abuts a Neighbourhood Residential Zone and is subject to the requirements of Clause (MUZ Buildings on lots that abut another residential zone).

4 24. Council contend that the proposal is inconsistent with the clause because it fails to meet the Standards B17 and B19 at the eastern interface, and that the proposal is therefore highly unsuitable at this interface. 25. According to Council, a setback of 6.3 metres is required at the second floor, where 2 metres is proposed. Council contend that the increased setback would reduce the visual bulk as viewed from the adjoining dwelling provide a transition in built form along Austin Street. Objectives and Standards 26. Clause 55 specifies objectives that must be met and standards that should be met. 27. It is acknowledged that the proposal does not meet Standards B17 and B19, but it is submitted that the proposal meets Objectives B17 and B19, which are: B17: To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings. B19: To allow adequate daylight into existing habitable room windows. 28. Whether these Objectives are reasonably met must be considered in the context of the competing expectations for growth and change in the MUZ and Neighbourhood Residential Zone (NRZ). 29. It is submitted that the appropriateness of the built form at the interface of the MUZ and NRZ needs to be assessed in the context of the strategic imperative for urban consolidation envisaged by the MUZ and Seddon Neighbourhood Activity Centre versus the desire to respect neighbourhood character of the NRZ. Urban consolidation versus neighbourhood character 30. We refer the Tribunal to recent Planning Scheme Amendments and Tribunal decisions that suggest support for the strategic imperative of urban consolidation over retention of neighbourhood character. 31. First, the zoning controls were amended in July 2013 via State-wide Planning Scheme Amendment VC100, which approved, inter alia, changes to the MUZ, including a new purpose encouraging housing at higher densities and greater as of right uses. 32. In conjunction with Amendments V8 and VC104, Amendment VC100 aims to sharpen the distinction between areas designated for increased densities and growth, such as activity centres, RGZ and MUZ areas and the GRZ and NRZ areas that surround these hubs. 33. Second, the strategic imperative recognised by the abovementioned amendments has been historically and repeatedly acknowledged by Tribunal, which has consistently confirmed the primacy of State and Metropolitan policy objectives and the important role that inner-city areas perform in accommodating future growth, while advising caution on placing too much weight on neighbourhood character considerations. 34. In NJJKT Pty Ltd v Whitehorse CC 2, the Tribunal expressed concerns at paragraph 12 that too often: [12] neighbourhood character considerations dominate the debate about particular projects while consolidation and affordability are reduced to a background hum in our thinking. 2 [2008] VCAT 1410

5 35. Development proposals, it was reasoned at para 13, are frequently overly restricted by local character policy objectives, which has resulted in a critical situation whereby: [13] the planning system has failed to deliver urban consolidation to meet the needs of our growing populations. Acceptable outcomes 36. It is in this context of competing objectives that planning must achieve an acceptable outcome. Any adverse implications must be considered on balance. 37. Indeed, the founding premise of the Decision Guidelines at Clause 65 is that decisions must be made based on whether the proposal will produce acceptable outcome. 38. In Rozen v Macedon Ranges 3, which is now well established in planning law and widely applied in consultation with Clause 65 of the Planning Scheme, Osborne J stated at para 171 that: [171] The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others [Emphasis added] 39. In Knox City Council v Tulcany Pty Ltd 4 at para 234 it was observed that: [234] The planning scheme does not require an ideal outcome as a pre-requisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the controls 40. It is submitted that the proposal provides an acceptable outcome because: CONCLUSION The Objectives B17 and B19 are reasonably met when considered in the context of the competing expectations for growth and change in the MUZ and NRZ. The area of the current Level 2 footprint can accommodate 4 one-bedroom apartments, which adds to the diversity of dwelling types and sizes, including housing affordability in the municipality. A quick review of the plans reveals that a setback of 6.3 metres (as requested by Council) at Level 2 would reduce the footprint to the extent that limits the proposal to accommodating two 2-bedroom apartments, which reduces housing stock and decreases the affordability of housing in the area (not to mention additional car parking considerations). 41. For the abovementioned reasons, it is respectfully submitted that the Application for Review should be allowed. 3 [2010] VSC (2004) 18 VPR 229

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