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30 June 2020

The Objectives, Standards and Decision Guidelines of Clause 55 (Rescode)

Clause 55, forming part of ResCode, contains a series of provisions that require an assessment of residential development from a character, external amenity and internal amenity perspective.

The ‘requirements’ section of Clause 55 outlines that a development must meet all the objectives and should meet all of the standards. The standards are mostly quantifiable, with the objectives and decision guidelines being qualitative. The relevant operation section states:

  • ‘Objectives. An objective describes the desired outcome to be achieved in the completed development.
  • Standards. A standard contains the requirements to meet the objective. A standard should normally be met. However, if the responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered.
  • Decision guidelines. The decision guidelines set out the matters that the responsible authority must consider before deciding if an application meets the objectives.’

For several years the interpretation of the above standards and objectives was guided by the legal decision of Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274 (30 June 2005). The Tribunal found that where the standard is met, the corresponding objective is also met and the considerations against a proposal cannot therefore include a failure to meet the objective. The decision noted however that meeting all ResCode standards should not automatically result in a permit granting and there may be other relevant issues to indicate refusal.

Adopting the Li approach, for instance, if the front setback measurable standard was met, it was not possible to argue the corresponding objective required a greater setback.

In Lamaro v Hume CC & Anor (Red Dot) [2013] VCAT 957 (13 June 2013), the Tribunal formed the view that the standards, objectives and decision guidelines should be read collectively and applied in a qualitative manner to achieve the overarching purpose of Clause 55 and that the decision guidelines where relevant even if the standard was met.

The recent decision of 16 Taylor Pty Ltd v Nillumbik SC [2020] VCAT 673, similarly outlines that the objectives and decision guidelines remain relevant considerations where the standard is met and should be read together.  In 16 Taylor the Tribunal found that exceedance of the relevant front setback standard was insufficient having regard to the objectives/decision guidelines, in addition to other qualitative scheme provisions.

These various Tribunal decisions adopt a consistent view that compliance with the relevant standards does not automatically result in an acceptable planning outcome. There are however aspects of the decisions where there is arguably inconsistency for instance:

  • Li outlines that the objective is not relevant where the corresponding standard is met, whereas Lamaro and 16 Taylor outline that the objective does need to be considered if the standard is met.
  • Lamaro and 16 Taylor outline that the objectives, standards and decision guidelines should be read together in a qualitative fashion, whereas Li favours compliance with the quantitative standard only.
  • Lamaro and 16 Taylor outline that the decision guidelines need to be considered where the standard is met. Whilst the decision guidelines are not specifically discussed in the Li decision, there may be merit to the contention that the decision guidelines are to guide an assessment against the objective and are not applicable if the corresponding standard is met.

Given the apparent variance in interpretation, the planning industry would benefit from a definitive legal view on the operation of ResCode noting that the apartment standards at Clause 58 are constructed in the same fashion.

 

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