The gazettal of Amendment VC253 on December 14 2023 means that for a ‘second small dwelling’, the planning approvals process has been streamlined in residential and rural zones.

The amendment codified specified residential development standards at Clauses 54 and 55 of the VPP in all planning schemes, to facilitate assessment of these standards and provide certainty to developers and the broader community.

The operation of the provisions is modified to state that where the standard is met, the objective is deemed to have been met, and the associated decision guidelines for the standard are not required to be considered.

In a recent legal decision by Senior Member Rickards Forecho Brighton Pty Ltd v Bayside CC [2024] VCAT 72, the Tribunal considered a proposal for a three-storey apartment building at 11, 11A and 13 Black Street, Brighton after the introduction of Amendment VC243. Of relevance, the site is zoned General Residential (GRZ2) within the Bayside Planning Scheme, which requires consideration of Clause 55 requirements and is affected by the Design and Development Overlay (DDO11) which outlines discretionary setback controls to second floors.

Several questions of law were considered in relation to whether meeting certain ‘deemed to comply’ standards allow for variation under the Neighbourhood Character Standards ResCode and Council’s local neighbourhood character policies.

Notably, the Tribunal determined (inter alia):

• The provisions of DDO11 do not vary the requirements of Standard B6 of Clause 55 of the Bayside Planning Scheme.
  • Under DDO11 buildings within residential zones are required to be setback in accordance with the relevant clause 55 standards, including Standard B6, except the second floor/third storey should be setback a minimum of 4 metres behind the front wall of the floor immediately below.
  • The Tribunal determined that this is not a variation, rather, it is an additional discretionary requirement over and above the relevant Clause 55 standard.
• The Tribunal does not have the power to require a setback under Clause 55, greater than required by the application of Standard B6.
  • The Tribunal upheld that if Standard B6 is met, the decision guidelines for that Standard do not apply to the application.
• If the proposal complies with Standard B6 the Tribunal does not have an ability to require a front setback of the proposal from Black Street, greater than that required by Standard B6, based on neighbourhood character considerations and/or impact on adjacent heritage buildings pursuant to Standards B1 and B2 of clause 55, and the local planning policy at Clause 15.01-5L (Bayside preferred neighbourhood character).
  • The Tribunal has a discretion to require an additional minimum 4 metre setback from the front wall of the floor below at the second level based on the decision guidelines in DDO11.

This decision upholds the findings of D’Andrea v Boroondara CC [2023] VCAT 1148 insofar as 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.

Ratio Consultants look forward to providing further insights as more matters are heard before the Tribunal following codification of the residential development standards. Please contact our office at mail@ratio.com.au should you require any assistance with VCAT or other planning-related matters.