Whose job is it to identify major building code failures?

Does it sound wrong to you that professional architects could design a 17 storey building, have it  reviewed by Manningham Councils’ Planning Dept,  and none of them pick up that there needs to be two or three fire escapes to meet the building regs, when there was only one ?

An how the one fire escape that was there, didn’t have an appropriate exit either ?

Surely it shouldn’t be up to the residents to identify this,  nor the many other failings of the design,  as part of VCAT battles. But that is exactly what happened.. Again.

From: Adele M

On Thursday 26th August, the VCAT case for 20-24 Hepburn Road and 1 Short Street ended and we now await the Member’s decision to determine whether the planning permit will be upheld or the Council decision set aside.

The proposed development, of course, is 15 storeys (40 metres) with carparking over two and two-half levels (17 levels in total), and will be the highest development on the Hill if built (and on a side street!).

Over the 3 days of the hearing (28 and 29 June, 26th of August), our team presented incredibly detailed submissions on the failure of Council processes, the amenity impact on the local streets, car park configuration and car stackers, waste management and design response (this last submission covering aspects like the 90+ single dwelling restrictive covenants in the area immediately adjacent to the development, the lack of stepping, the impact of overshadowing, and concerns about fire exits and wind).

I could talk at length about many aspects of our case (and will no doubt submit further articles to Coherence at a later date) but wish to focus here on the scrutiny (or lackthereof) of plans by Council.

As most will know,there are two permits that a building such as this requires prior to cutting the soil – a planning permit (issued by Councils) and a building permit (issued by a building surveyor, almost always a private arrangement). In short, a planning permit is about what you intend to build, and the building permit is about how you intend to build it (more info here: http://brutalart.com.au/architecture-design/building-permit-vs-planning-permit/).

During early discussions that I had with the planner at Manningham, he described the difference as:

planning permit = what does it look like and do the neighbours care

building permit = will it burn down or fall down

I think there’s a subtle but VERY important difference between the two definitions and our experience with 20-24 Hepburn Road has highlighted a dangerous problem by taking the latter (Manningham) approach.

There were two major problems that we detected with the plans that were not picked up during the Council assessment, and obviously brought those to the attention of the Member.

  1. There was a permit condition requiring waste to be collected from within the basement of the building, but another permit condition that allowed the carpark headroom to be only 2.2 metres. These conditions were clearly not talking to each because by providing headroom of only 2.2 metres, it would prevent a waste collection vehicle from fitting inside the building!
    As a result the building operators would have had to dispose rubbish, recycling and hard waste for 188 apartments on Short Street at least 6 times a week. Imagine the mayhem!
  2. There was only one staircase provided in this building (which is a U-shaped design) and it would come nowhere close to satisfying the requirements for emergency access and egress (in other words, there was not a single emergency exit in the building).

Manningham Council are defending their lack of consideration of emergency access requirements saying that “that’s dealt with at the next stage” (i.e. when applying for a building permit). But by taking this approach, it makes a mockery of a 3-day VCAT hearing when “at the next stage” everything will change about what this building can deliver! (And quite probably, it’ll change “behind closed doors”.) To comply with the regulations on emergency access and egress the storeys above ground will require two, possibly three, new stairwells and the basement levels of carpark will probably require four. In fitting the building with what it needs by way of staircases, the number and layout of apartments it can deliver will change, and subsequently how many car spaces it requires will change! But that’s only part of the problem; the staircases need to “discharge to a roadway or ‘open space’  that leads to a roadway”.

‘open space’ as defined by the Building Code and that will be another headache.

Of course, another problem by taking this approach, is what happens if the building surveyor fails to pick up the lack of compliance and the building gets under construction? I can happen and it has happened!! At 91-93 Tram Road, the MFB intervened mid-construction for the same reasons (Reported in Leader Newspaper, Tower Safety Probed – WED 19 OCT 2011, Page 3).

It certainly poses a lot of questions…..

What does a building surveyor expect that Council has checked during their assessment? Would the building surveyor just concentrate on how the plan is built as opposed to why it’s built that way?

If this building had been completed without waste being able to be collected and with no emergency exits, who is liable if the building surveyor has inherited those plans from Council?

Why are ratepayers forced to take cases to VCAT to do the job of the Council?

We felt that questions needed to be asked of the processes so following the VCAT hearing I sent the following email to Councillors (copied to the Planning Dept):


Dear Councillors

I led the team of residents who appealed to VCAT against the notice of decision to give a planning permit to 20-24 Hepburn Road and 1 Short Street. The VCAT hearing concluded last Thursday and we now wait on the Member’s decision.

Please read this email to the end because we need your action.

I am writing to you make you aware of the failures of the Council assessment as they’re now on public record and are going to be publicised in the coming days and weeks. As Councillors, you publicly state that you rely on the professional advice of the Council’s professional planners, but in the instance of 20-24 Hepburn Road the assessment has been totally inadequate and you need to take steps to ensure that it never ever happens again!

One major oversight was that a permit condition required waste to be collected from the basements of the building. However, the Council’s planners had not identified that the driveway and headroom within the carpark wouldn’t allow a waste collection vehicle to fit! In fact a separate permit condition specified that the entrance height be 2.2m, which would exclude the passage of waste management trucks into the building.

Imagine the disruption to vehicle and pedestrian traffic if this had been built! General, recycling and hard waste would have had to be collected on Short Street for 188 apartments 7 times a week.

There were other basic errors in the plans such as:

  • Half of the pages of the plans showed conflicting details about what was on the roof!
  • The shadow diagrams had north oriented in the wrong angle which resulted in totally inaccurate shadow diagrams. The shadowing would have been substantially worse than originally indicated.
  • The car stackers in basement 1 would have been impossible to build because there was a floor of at grade parking added below it at the last minute and the assessment failed to detect that no pits were provided for the bottom tier of stackers. This is what happens when something is approved without a policy, as we had been so vocal about.
  • No wind assessment was provided with the application despite it being a requirement as per the Doncaster Hill Strategy guidelines.
  • Dimensions missing in many places on plans.


As a result, new plans were requested after day 2 of the hearing to attempt to resolve the mess.


The Developer and the Council’s new bandaid solution to resolve onsite waste management, was to introduce a new crossing leading to a laneway at the rear of the property (right up along the rear fence).

This has created an extremely unsafe second crossover on Short Street, with waste vehicles reversing into the narrow laneway at least seven times a week.

Because it’s right up against the back fence, there is no pedestrian sight lines to the footpath to the north of Short Street – not compliant with Australian standards.

We know that many Doncaster Primary schoolchildren walk up and down Short Street, and there will be no visibility of pedestrians as vehicles drive out of the property.


The proposed solution (to resolve the impossible design of having car stackers in mid-air) was to locate all the 201 car stackers to basement 2 and adjust the ceiling levels in the car park.

As a result of this, the ramp very near the entrance is now at an impossible gradient of 1 to 3.2 (where the max permitted is 1 to 4). This means that 99% of cars will scrape their undercarriages, and front and rear of their vehicles at the entrance.


But by far the most worrying oversight is that the officer’s assessment failed to identify that there’s not a single fire compliant exit in the whole building! Not only will this building require at least two more emergency exits (probably three), the one central staircase that it does have doesn’t satisfy the MFB requirements so can’t even be considered as a complying fire exit. You might remember that the building was U-shaped…. You don’t need to be an expert to see that one staircase in the middle of a U-shaped building will be a problem.

You may already be aware that the MFB obtained plans for 91-93 Tram Road ‘The Madison’ under FOI and  intervened mid-construction for the same reasons (Reported in Leader Newspaper, Tower Safety Probed – WED 19 OCT 2011, Page 3).

While I appreciate that the Building Code guidelines are applied by the building surveyor at the stage of applying for a building permit, the Council cannot possibly risk another 91-93 Tram Road! Imagine the publicity!!

In the same way that the officers look to see that a building has doors and windows and car spaces, they should have a basic understanding of what’s required in terms of numbers of exits! What a waste of everyone’s time to get to this stage and for it to go back to the drawing board!

Your prompt assistance is requested:

What we need from you:

  1. VCAT have requested that the permit conditions be redrafted so that if the permit were to be upheld, they would form the new conditions. At VCAT we requested that a strict condition be added to the permit that requires the building to be assessed for fire safety (access and egress requirements in the Building Code). Can you please let the planning department know that it is absolutely essential that those redrafted conditions MUST include the most stringent conditions in relation to compliance with emergency access and egress.
  2. You need to ask questions internally about why planning officers are recommending plans that could never actually receive a building permit! (We’re not talking about the placement of sprinklers or an extra fire hose here or there, we’re talking about major changes that require a major redraw/redesign such that everything about this building will change.)


I have no doubt that you would not have supported this application had the assessment revealed these major problems.

If you would like to discuss anything about this, feel free to contact me.


Adele Khoo



The Councillors requested a report from the officers and in summary it said “All matters pertaining to Building Permit issues such as Fire and Emergency exits are not dealt with at the Planning Permit stage”.

Getting back to the explanation I used at the start “a planning permit is about what you intend to build, and the building permit is about how you intend to build it”, and it seems to us that Council are not seeing fire exits as being part of the ‘what’ and are putting them into the category of ‘how’.

Cnr Jennifer Yang has listened and understands our concerns and she has requested that the matter be discussed at an SBS meeting of Council. I sent Cnr Yang (and all Councillors) a second email to further elaborate on this matter:


Dear Cr Yang

I’ve read the officer’s response and I understand that you have asked for this matter to be discussed at an SBS.

We fully appreciate that the enforcing of the Building Code applies at the stage of seeking a Building Permit. What we’re questioning is the logic of approving a building that cannot possibly receive its planning permit without significant redesign nor receive an occupancy certificate. What is the logic of a building surveyor inheriting a plan that must be returned to Council or to VCAT? Or worse still, where the building surveyor misses it completely (as the case with 91-93 Tram Road).

We are not expecting that the planners “administer” the BCA but to simply know what should be looked for because it will directly impact the floor plan and amenity – surely that’s still the remit of the planners? The onus can be put squarely on the architect to check their compliance with access and egress as early as the Sustainable Design Taskforce meeting, because their compliance with it will inform everything about what the floor plan requires.

In the same way that a building wouldn’t be approved without windows or doors, it shouldn’t be approved without emergency access and egress.

This is not just about MFB requirements. All Emergency Services (Police, Ambulance, SES, Fire Brigade) need a safe way of getting into the building to help occupants. It is the first priority of Emergency Services to make sure their officers are not in danger before sending personnel into any emergency situation. If a building is unsafe, how can they help its occupants?

In the case of 20-24 Hepburn Road, the officer’s report did make some determination on the provision of access and exits. It says:

6.47. It is considered there is no obvious barrier to access for emergency vehicles, and an emergency exit for occupants of the building is shown.

Our response:

  • There is a total barrier to access for emergency vehicles. They cannot access the eastern or northern lengths of the building (because of fences and now the hydraulic lift) and their ladders can’t go higher than 25 metres. Their vehicles can’t fit into the carpark because of low headroom at the entrance.
  • The single exit that’s been considered to be the emergency exit, doesn’t meet the criteria for an emergency exit (because it doesn’t lead outside the building) and one exit is not enough.


In making the above determination (point 6.47), the planners must be checking it against something?

A permit condition needs to be in place to make sure the responsible authority is given an approved Emergency Access and Egress Plan before the building goes ahead. These permit conditions were present in other developments on the Hill (e.g. 810 Elgar Road) but were not included for 20-24 Hepburn Rd. At the conclusion of the VCAT hearing, we were asked to comment on the permit conditions and we requested a condition be added in relation to emergency access and egress. From what I understood, [Council’s lawyer] was seeking advice on what the wording should be.

It’s interesting to note that the Englehart development on Doncaster Road is ‘textbook’ for how many exits a development should have and where they should be. That development went through the very same assessment process; the difference being, the architect obviously (fortunately) knew what was required by way of access and egress.

The definition of madness is doing the same thing over and over again and expecting different results. The only thing worse than it happening for a first time (91-93 Tram Rd) or for a second time (20-24 Hepburn Rd), is that if nothing changes, nothing changes. To improve a process would be taking a proactive step to improve the quality of plans and avoid costly problems at the next stage. Surely we can all agree that that’s a better outcome.

Please let this not all be in vain otherwise it will happen again.


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