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Latest VCAT decision re. the codification of the ResCode standards following Amendment VC243 – is there a preference for D’Andrea decision?

John Cicero & Chris Boocock

Latest VCAT decision re. the codification of the ResCode standards following Amendment VC243 – is there a preference for D’Andrea decision? 

There has been a number of decisions regarding the interpretation of the recently codified ResCode standards post introduction of Amendment VC243 to all Victorian planning schemes. Our firm has prepared previous articles found at links below: 

The latest decision of the Tribunal in Forecho Brighton Pty Ltd v Bayside CC [2024] VCAT 72 (25 January 2024) (Forecho) however indicates a preference towards the interpretation adopted in the recent decision in D’Andrea v Boroondara CC [2023] VCAT 1148 (D’Andrea)

In D’Andrea (the earlier decision), the Tribunal held that:

  • Where codified Standard B17 is met in a proposal, the height and setbacks of a proposal from a boundary are deemed to comply with the objective at clause 55.04-1 including the character of the locality and amenity outcome; and
  • This does not prevent consideration of bulk and amenity impacts that may result from matters outside the side and rear setbacks objective, for example length of walls, articulation, design and materiality which may be of relevance to neighbourhood character and amenity impacts.

In Forecho, the application before the Tribunal proposed the development of a three-storey apartment building on two lots.  Both lots were within the General Residential Zone and affected by a Design and Development Overlay.  However, only one of the lots was included in the Heritage Overlay.  

The proposal complied with the front setback under Standard B6 of Clause 55 of the Planning Scheme.  In fact, the setback provided was greater than that which would be required by the application of that Clause.  

However, because the existing heritage building on the lot affected by a Heritage Overlay was setback further than the setback that had in fact been provided for that part of the development that sits substantially on the lot unaffected by the Heritage Overlay, Council and the objector parties argued that a greater setback than required under Standard B6 should be provided to respect the adjoining retained heritage building.

The matter was somewhat complicated because the applicable DDO provides a discretionary requirement for the second floor only of any building of a minimum of 4 metres from the front wall of the floor below.  Council and the objectors argued that this provision of the DDO varied Standard B6 under Clause 55.  

Council and objector parties then further argued that Standards B1 and B2 of Clause 55 and the Local Policy at Clause 15.01-5L could be used notwithstanding compliance with Standard B6 to require a greater setback at all levels of that part of the development adjacent to the retained heritage building.  In forming its decision, the Tribunal rejected all of those arguments and accepted the position put on behalf of the permit applicant which accorded with the interpretation of the condified ResCode standards in D’Andrea. In other words, that where the numeric standard of B17 is met (or in this case Standard B6), there is no discretion for the Tribunal to consider neighbourhood character matters in the context of building height and setbacks. 

The interesting conclusion is that at paragraph 45 of the Forecho decision where clearly the Tribunal preferred the reasoning in D’Andrea and found that it could not require a greater front setback in relation to Standard B6 where the Standard was met, taking into account neighbourhood character provisions pursuant to Standards B1 and B2. It stated:

[45] Like the conclusion reached in D’Andrea if the objective of the standard is met the conclusion drawn is ‘that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site’. Therefore, the Tribunal does not have any ability to require a greater front setback in relation to Standard B6 taking into consideration any neighbourhood character provisions within clause 55, policies within the planning scheme and/or impact on adjacent heritage buildings pursuant to Standard B1 and B2. However, with regard to the second floor the Tribunal can consider in accordance with the decision guidelines in DDO11 any additional setback over and above compliance with Standard B6.

While there remains a divergence of opinion as to the interpretation of the codified ResCode standards, it is interesting in our opinion that the opinion in D’Andrea has now been followed and appears to be preferred.

The differing decisions of the Tribunal continue to pose a difficulty in forecasting how a Council and ultimately a future Tribunal might regard compliance with these standards in circumstances where there are issues relating to neighbourhood character. We will continue to report further decisions as they are to hand.

John Cicero

Special Counsel
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Chris Boocock

Senior Associate
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