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18 April 2018

Ignored Panel’s Recommendations – why bother?

Amendment C223 to the Stonnington Planning Scheme – a case in point

The process of planning scheme Amendments being considered by Independent Panel’s when opposing submissions are received or there are disagreements is a good one, and enables independent review by qualified and learned people. 

However, unlike VCAT, a Panel’s report only needs to be ‘considered’ by the Responsible Authority for the Amendment (usually a Council, but sometimes the Minister).

When a Panel comprehensively deals with issues, based on submissions and evidence, and makes clear recommendations, it is somewhat bewildering when those recommendations are blatantly ignored. 

It begs the question – why bother? 

As consultants, we do not always agree with the Panel’s recommendations.  But you have to respect the umpire’s decision – don’t you?

Putting aside the Minister’s own form in this regard, we would like to believe the Minister for Planning believes considerable weight should be given to a Panel’s recommendations, and frowns upon Councils that adopt Amendments that are contrary to the Panel’s recommendations.  The Minister’s ‘splitting’ of Amendment C125 to the Monash Planning Scheme (as previously reported) is a potential case in point.

Another recent example is Amendment C223 to the Stonnington Planning Scheme involving the ‘Glenferrie Road and High Street Major Activity Centre’.  A hotly contested issue before the Panel was what setback should be applied for upper levels above the podium / street walls.  Notably: 

  • The Amendment sought a discretionary 8-10 metre setback, based largely on heritage grounds.
  • This was despite a 3 metre upper level setback being recommended in the Council’s own adopted ‘Glenferrie Road and High Street Structure Plan’ for this activity centre.
  • Council’s own urban design expert at the hearing stated that the Structure Plan was prepared with specialist disciplinary input and advice from Council’s heritage officer, and believed the adopted 3 metre setback “ensures that the primary frontage and street address is reinforced as the primary visual element in either traditional or contemporary presentation, with setback form behind.”
  • The Council’s heritage expert conceded (at this Panel hearing, and indeed at the Panel hearing for Amendment C132) that there has been an increasing acceptance of more visible upper storey elements, including outcomes that are well in excess of that allowed by ‘sightline envelopes’.

Having considered all relevant matters, the Panel ultimately concluded that a discretionary 5 metre setback would appropriately diminish the visual scale of upper level additions to respect the existing heritage precinct, while enabling growth in a Major Activity Centre.  The Panel concluded that applying an 8-10 metre setback:

  • Would be excessive for a Major Activity Centre (noting activity centres of this ‘order’ play many roles, including employment and urban consolidation).
  • Would give unsupported additional weight to planning policies advocating heritage values over policies supporting development in activity centres (noting separate heritage controls and policies will continue to exist, thereby providing an additional layer of protection for valued heritage values).
  • May restrict the ability to achieve 800 to 900 dwellings if it makes individual sites unfeasible.

 The Council did not accept this, and instead sought to impose an 8 metre discretionary setback requirement.

Some comfort can be taken from the discretionary nature of the provision, so kudos to Council Officers where it is due.  But we all know how discretionary provisions tend to be applied at Council level, and the justification subsequently given by Council Officers to reject the 5 metre Panel recommendation was at best misguided, and at worst misleading.

If persons feel aggrieved by situations like this, they can write to the Minister for Planning expressing their concerns.  ratio: did this with Amendment C125 to the Monash Planning Scheme, and intends to do it again with Amendment C223 to the Stonnington Planning Scheme.

Perhaps the bigger issue is whether Independent Panels should remain ‘toothless tigers’, or whether more statutory weight should be given to their recommendations.

If you require any assistance with matters of this nature please contact David Crowder or your existing contact at ratio:

Author: David Crowder, Director: Planning

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