Guest writer, planner and project manager Damien Bonnice, looks at whether planning courts could do a better job:
I’m prompted to write this piece after recently spending 7 days at a Victorian Civil and Administrative Tribunal (VCAT) hearing concerning an appeal by the Brotherhood of St Laurence against a decision of the City of Yarra. Council had rejected an application by the Brothehood to erect a four storey 116-bed aged person facility on a 2,700 sq m site in Clifton Hill (see Brotherhood of St Laurence v Yarra CC).
An important issue, among many, was the proposed demolition of the 112 year old St Andrew’s Church Hall (listed as contributory under the site’s heritage overlay) to ‘make way’ for the new development.
On this matter the Tribunal relied, inter alia, on The University of Melbourne v Minister for Planning VCAT determination where retention of the heritage-listed Ampol building clashed with the university’s proposed Peter Doherty Institute development. In that case the Tribunal decided there was a greater social benefit from the development of a cancer research centre than retention of the heritage building.
On the face of it the application of the same principle to the Brotherhood’s case sounds reasonable but the Tribunal did not acknowledge a key difference between the two cases – the Ampol building occupied a substantial portion of the site such that there was no scope for integrating it with the new research building.
The converse applied in this case – only 15% of the site was occupied by the heritage building, indicating there was room to integrate the new with the old (not an unusual practice in heritage areas). Some submissions were made on this matter but the Tribunal determined that “we need to assess the proposal that is before us, and not alternative options to develop the site”.
From this ‘anchor’ planning law position the Tribunal then confidently determined:
We find..the proposed demolition of the former church hall, and the construction in its place of a 117 [sic] bed aged care facility for financially disadvantaged persons, will achieve a substantial net community benefit.
Had the Tribunal been able to assess alternative design solutions it would have been advised that the real choice was a between a 102 bed solution plus retention of the heritage building, vs 116 beds and no retention, with the former solution offering superior accommodation standards. I suspect that, had this proposition been assessed, there would have been a different outcome.
The principle that the Tribunal can only assess what is before it clearly has its downsides or, more pointedly, contributes to inferior decision outcomes. Hearing rules need to be reviewed so that we strive to get the best, not the sub-optimal, outcome.
Some may argue that, on this matter, the role of the design expert becomes crucial – in this regard only one design expert (appointed by the [objector] respondents) was engaged to provide evidence. That expert evidence was important bearing in mind the Tribunal acknowledged that there are other design issues with the proposal. To quote from the Tribunal’s determination:
a more successful outcome [would have been achieved] if lower scale built form ….[was] located on one of the more sensitive interfaces on the review site.
the design intent [was] to squeeze a large building on the parts of the review site that abut the most sensitive interfaces.
the proposed development to Gold Street [was] visually dominant and out of character with the street.
the continuous [third level] elevation …will have a dominant appearance when viewed from the [adjoining eastern] private open space.
In the face of these and the heritage issue, the design expert advised the Hearing the design was incapable of being rectified by (to use my words) ‘nip and tuck’ permit conditions.
The Tribunal thought otherwise and proceeded to determine in favour of the applicant, with a host of ‘nip and tuck’ permit conditions (which had the effect of reducing the size of the development to 110 beds). The design expert was ignored in the determination in what appeared to be a pre-determined Tribunal position.
This brings into question the next major issue arising from this Hearing – the use and abuse of expert witnesses. Depending on the Tribunal’s predisposition to the proposal at hand it can choose to ignore or accept expert evidence.
A better use of expert resources might be achieved if they were officially sanctioned by the Tribunal but funded by the parties to the Hearing – perhaps then the Tribunal would avail itself of better and more reliable advice particularly on matters concerned with design.