VCAT SAY MANDATORY RULES ARE DISCRETIONARY

MANNINGHAM MUST MAKE PLANNING SCHEDULES MORE VCAT PROOF.

Here is another example of where a Vcat member has upheld a developer appeal by overruling a council decision to reject a three storey townhouse proposal, at 88 Whittens Lane, Doncaster, despite it not conforming to the mandatory provisions (cannot be varied with a permit) of the Manningham Planning Scheme schedule DDO8, by ruling that; “the design objectives clearly indicate support for two-storey townhouse style dwellings with a higher yield  within sub-precinct B. However, the design objectives in DDO8, fall short of saying three-storey developments cannot be contemplated”! Workroom Design Pty Ltd v Manningham CC [2014] VCAT 587 (16 May 2014)             MPS DDO8   

Resident Amelia Tang provides the following analogy;

” It’s a bit like saying “the national road laws stipulate we must drive on the left hand side of the road, but because it is not specifically referred to in the local road rules it should also be okay to drive on the right side”.

 In his summary tribunal member Mr Cimino went on to say; “perhaps more telling is the absence of a prohibition of development higher than two storeys within DDO8. I would have thought that if the situation is cut and dried in terms of limiting the height of buildings to no more than two-storeys, then the DDO provisions should be drafted to reflect this. Indeed, there are examples of such controls in other planning schemes

MPS DDO8.

Sub-precinct B is an area where single and two storey dwellings only will be considered and development should have a maximum site coverage of 60%. There is no minimum land area for such developments”. it then goes on to stipulate the Design Objectives; To support two storey townhouse style with a higher yield within sub-precinct B and sub-precinct A and maximum building height 9 metres or 10 metres on sloping sites. Mandatory and cannot be varied with a permit.

 

 

7 Responses to “VCAT SAY MANDATORY RULES ARE DISCRETIONARY”

  1. Whittens says:

    I do not agree with Mr Cimino’s decision because it ignores the spirit and intent of Manningham’s DDO8 and will now set a precedent for others who might wish to circumvent the rules of the schedule. However his criticism of its wording is entirely valid. It is almost as if the authors of the schedule have quite deliberately provided a “free hit” for developers to challenge its terms and conditions at Vcat and are intent on providing a gravy train” for their usual consultants and solicitors, who would have to be hired to defend their decision, all at the expense of the ratepayer.

    • Casper says:

      At the expense of the ratepayer!!
      The Manningham Council(elected by us suckers) is rapidly becoming richer and can well afford Vcat contests.
      What is lacking is the will to act on behalf of residents.
      The increased income from the Whittens lane development is additional to the income from Hepburn Rd, Eastern Golf Course ($1.2mill per year minimum) etc.
      Rates in some areas of Doncaster have risen by 25% last year. The frustrating thing is that many residents don’t even have the sense to compare their rate bill from last year and just pay up without a whimper.
      Meanwhile we have an expensive media (propaganda) department telling us what a great job Council is doing.
      Oh if that the money spent on Manningham Matters magazine was spent on RAIDID. The community would be so much wiser.

    • Queens says:

      Unsurprisingly, the Vcat tribunal have just driven a horse and cart through the flaw in the DDO8 provisions. Manningham knew of the problem 9 years ago and had the chance to close the loop hole by way of amendments C50 and C96. They could have easily have made small adjustments to the schedule which could have prevented the over development of small blocks, but they chose not to.

  2. Bel Harris says:

    I have just lodged an objection against a three storey proposal at 51-53 Beverley Street, Doncaster East.
    Like the three storey proposal at 88 Whittens Lane, approved by Vcat, it can only be two storey but for a different reason.
    The Beverley Street proposal is in sub-precinct A, where the land has an area of less than 1800m2, which limits the development to two storey while the Whittens Lane proposal, in precinct B, can only be two storey irrespective of the land size.
    Most three storey developments in Doncaster have access and facilities for the disabled but neither proposal had included a lift to their upper floors. If the tribunal member had not been so focused on trying to justify approving the proposal, by undermining the schedule, he might have noticed the oversight.

  3. Rohan says:

    The strategy has had two rounds of scrutiny that I know of, firstly in the preparation of amendment C50 in 2005-6 and again with amendment C96 during 2011-12. Both proposals were thoroughly examined by panels Victoria and the state planners (his own people) and signed off by the minister for planning after being exhibited for several weeks.
    If Mr Cimino was confused or did not understand the intent of the regulations he could easily have contacted Manningham council to seek a briefing before he made his decision but he did not. He could also have sought advice from other members of the tribunal if he was uncertain.
    We must conform to the mandatory provisions of our planning schemes otherwise there will be a further erosion of community confidence in the tribunal’s decision making if they continue to be ignored.
    Rohan

  4. Amelia says:

    It might not be such a big deal since the smaller sites in precinct A and all allotments over 500m2 in precinct B can only build townhouse style developments and they are more likely to be two storeys anyway. But I thought Vcat’s comments in items 15 & 16, re 88 Whittens Lane, Doncaster, in precinct B, the tribunal’s decision to overturn a council refusal to approve a three storey development were not dissimilar to many of the submissions council received during its processing of the C96 amendment.

    “It would be quite inappropriate to simply rule out buildings higher than two-storeys on the strength of a statement in a policy, when the statutory control provides otherwise”.

    “Perhaps more telling is the absence of a prohibition of development higher than two storeys within DDO8. I would have thought that if the situation is cut and dry in terms of limiting the height of buildings to no more than two-storeys, then the DDO provisions should be drafted to reflect this. Indeed, there are examples of such controls in other planning schemes”
    If that is the case why can’t we?

    Council’s policy objectives were published in the Manningham Matters July 4/2012;
    “While Council’s policy encourages two storey dwellings within 9 metres, (or 10 metres on sloping land) a three storey building could still be designed within the specified height limit, but the objectives of the overlay and Council policy would discourage this”.

    Amelia

    • Spearmint says:

      The maximum height of 11m for developments on sites larger than 1800m2 in precinct A, with no allowance for a sloping site, makes it impossible to go beyond the mandatory three storeys. But the maximum height limit of 9m, 10m on sloped land, for developments on land less than 1800m2 in precinct A and on blocks with an area of more than 500m2 in precinct B, despite the policy indicating only two storeys would be considered, makes it possible for developments up to three storeys.
      Most of our problems would be solved if we were to stipulate a height of 8m, 9m for fall, minimise excavation and a three storey development would not be possible. If for whatever reason the maximum height of up to 10m had to remain, why not insert a condition like the maximum height allows for varying concepts in design in this precinct but developments must not exceed two storeys.

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