Clause 55 of all Victorian planning schemes sets out a series of standards and objectives that development of two or more dwellings on a lot in one of the residential zones, and the mixed use zone, must comply with. The standards and objectives address street setbacks, building height, site coverage, permeability, side and rear setbacks, walls on boundaries, daylight to windows, overshadowing, overlooking and other development standards. If the numerical standards are met, does this mean that development is deemed acceptable?
On that question the Victorian Civil and Administrative Tribunal (VCAT) has been inconsistent. In Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274, VCAT effectively treated the clause 55 standards as deemed to comply provisions such that meeting the standard meant the objective was deemed to have been met. This decision was followed generally by VCAT until Lamaro v Hume (Red Dot)[2013] VCAT 957. Ye v Boroondara CC [2015] VCAT 1051 follows the Lamaro approach.
In Ye, VCAT accepted that the proposal demonstrated compliance with all of the numeric standards of clause 55. However, VCAT still rejected the proposal on neighbourhood character grounds. Relevant factors were the Neighbourhood Residential Zone, the City of Boroondara Neighbourhood Character Study Precinct Statements (2013), the description of the relevant precinct in that study as having key characteristics that included the predominance of 1930's and 1940's dwellings, a preferred future character statement 'to maintain the predominantly single storey, detached character of streetscapes...' and VCAT's description of the existing neighbourhood character as influenced predominantly by traditional housing stock. These policy and physical elements warranted a more sensitive response to neighbourhood character, notwithstanding clause 55 compliance.
Two key issues fall for comment. The first is a fundamental question about which approach is the correct one: should the clause 55 standards be treated as deemed to comply provisions such that meeting the standard means the objective is deemed to be met, or is a more subjective assessment warranted? Further guidance on this issue is needed. The second issue is that if Lamaro/Ye is the preferred or indeed correct approach, then those applications that will face the greatest difficulty, and which will warrant the most carefully considered design response, are those in locations where the existing character is relatively unchanged and the Council has clearly articulated in the planning scheme its vision for neighbourhood character. The Boroondara Planning Scheme is one scheme that falls in that category.
Ye v Boroondara CC [2015] VCAT 1051
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