One of the most topical and debated planning issues is building height. It is typically the first question asked when determining what can be developed on a site, however, the subject has a layer of complexity which often leads to subsequent questions, such as:
The answers to these questions are often obvious but there are also instances where they can be unclear. For example, the maximum building height in a zone may be different to the maximum height in an overlay such as a Design and Development Overlay (DDO) or a schedule to a zone can specify a taller maximum building height which would facilitate additional storeys than what is outlined in the parent clause.
Another common question is whether a lift overrun is measured as part of the building height. The list of questions can go on and on.
The introduction of mandatory building heights and number of storeys has perpetuated this issue, raising questions and much discussion. VCAT have often been tasked to make these findings but, usually, each case is unique and will turn on its own facts and circumstances. This can be both helpful and unhelpful.
It is understandable that Councils have their own specific agenda and approach to building height which explains why built form controls such as DDOs can be often worded differently from scheme to scheme. The unintended consequence of this variation is that it creates ambiguity in its interpretation.
As a starting point in unpacking some of the key questions around building heights, it is important to determine whether there are any specific definitions of building height and storeys in the applicable planning controls.
For example, there are DDOs which provide definitions of what constitutes building height, how it is measured and what is a storey. Planning controls can also specify exclusions or allowable exceedances which commonly apply to architectural features and plant equipment.
In the absence of these specifications, the default position should be the definitions in Clause 73.01 of the Victorian Planning Provisions, which include:
Another common question is whether a roof terrace/deck constitutes a storey. Again, this requires an examination of the applicable controls and whether there are specific definitions.
For example, DDO1 of the Bayside Planning Scheme makes a distinction between a roof deck and a storey and exempts an attic or basement from being classified as a storey. In contrast, DDO2 of the Bayside Planning Scheme constitutes an attic, mezzanine and built over car parking area as a storey.
Similarly, the question of lift overruns, building services and roofed areas are often examined especially when mandatory heights and storeys apply. There have been numerous VCAT decisions exploring such matters and often a ‘contextual approach’ has been adopted in coming to a conclusion. In some instances, the size or nature of these appurtenances have been determinative of whether it forms part of the ‘building height’. This is highlighted in the decision at Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484.
Unfortunately, there is no simple answer to determining what constitutes building height or a storey. Every case will be different and will be based on the applicable planning controls. Unless there are clear definitions specified, a contextual and common sense approach will be necessary.
If there are discrepancies between the maximum building height across the applicable planning controls, then the lowest height is to be complied with. There is no hierarchy of weight given to the zone or overlay. They are treated as separate controls, and one must adhere to all applicable controls.
Mandatory building heights and storeys apply in the Neighbourhood Residential Zones (NRZ) and General Residential Zones (GRZ). Councils can vary these mandatory requirements in their schedules to the zones, however, the default position is two storeys in the NRZ and three storeys in the GRZ.
The Stonnington Planning Scheme currently contains 16 different schedules to the GRZ with most containing variations to the maximum building height provisions. They vary between 9m to 13.5m.
The VCAT decision of Mellick v Stonnington CC [2018] VCAT 1495 provides some useful insights on the wording of the GRZ parent clause and Schedule 1 to the GRZ (GRZ1), which has a maximum building height of 13.5m1. This ruling made a declaration that the GRZ1 does not prohibit the construction of a dwelling or residential building which contains more than 3 storeys at any point.
The decision explained that the wording of the GRZ states that if a schedule specifies either a height limit in metres or storey, then those limits apply. However, if only a height limit in metres is specified in the schedule, there is no limit on storeys. If there are no limits specified in the schedule, then the default provisions in the parent clause applies.
In the case of Stonnington’s GRZ1, a maximum building height of 13.5m is specified with no restriction on the number of storeys. Within this height limit, it can readily accommodate more than 3 storeys.
The rationale and findings of the Mellick decision can also be readily applied to NRZ land and have widespread implications for other planning schemes. Therefore, there are circumstances wherein the default restriction of storeys in both the NRZ and the GRZ may not apply.
If you have any questions or queries about the issue of building heights, please do not hesitate to contact Ratio Consultants.
