Insights Library
Recent VCAT decision takes a different view re. the codification of the ResCode standards following Amendment VC243
There now appears to be two decisions of the Tribunal which take different views when it comes to the codification of the ResCode standards following the introduction of Amendment VC243 to all Victorian planning schemes.
In the most recent decision of Costa v Banyule CC [2023] VCAT 1273 (Costa), the Tribunal has adopted a different approach to that in an earlier decision in D’Andrea v Boroondara CC [2023] VCAT 1148 (D’Andrea) about the interpretation of the ResCode standards, and in particular Standard B17, which were codified following Amendment VC243.
In D’Andrea (the earlier decision), the Tribunal held that:
- Where codified Standard B17 is met in a proposal, the height and setbacks of a proposal from a boundary are deemed to comply with the objective at clause 55.04-1 including the character of the locality and amenity outcome; and
- This does not prevent consideration of bulk and amenity impacts that may result from matters outside the side and rear setbacks objective, for example length of walls, articulation, design and materiality which may be of relevance to neighbourhood character and amenity impacts.
The Tribunal in Costa (the later decision) however has disagreed with these findings, remarking that:
“[32] The D’Andrea decision considers that it would be illogical and impossible to have no discretion over neighbourhood character outcomes and then to go ahead and apply that discretion and carry out an assessment. I do not share this opinion. Planning decision-making can be challenging, and this situation is evidence of this. There are multiple objectives throughout clause 55 that require consideration of neighbourhood character. Accepting some clause 55 objectives are met because the relevant standard is met does not negate the need to consider the remaining clause 55 objectives and exercise the general discretion that applies through the zone provisions.
[33] The planning scheme acknowledges the potential for complexity in decision-making. Clause 71.02-3 acknowledges the Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision-making. It instructs decision makers to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. So, there is acknowledgement of the potential for conflicting objectives in the planning scheme, and this is now evident in clause 55. For example, meeting standard B17 means that the objective at clause 55.04-1 ‘to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings’ is met. Yet, a design must also meet the following neighbourhood character objectives at clause 55.02-1 that are not codified:
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
To ensure that development responds to the features of the site and the surrounding area.
[34] So, in this case, whilst codified standards such as B17 and B18 are met, I am still required to consider and determine whether the neighbourhood character objectives (and other non-codified objectives) are met. The Council submits its position in this proceeding has not been altered by Amendment VC243 as the content of its policies have not changed and the Council continues to seek an acceptable and appropriate neighbourhood character response.”
[our emphasis]
It follows from the Costa decision that there is a divergence in the Tribunal’s application of the codified ResCode standards in the context of competing neighbourhood character considerations.
The decision of Costa stands for the proposition that despite the numeric standards in B17 being met, this would not obviate the requirement for the Tribunal to holistically consider neighbourhood character objectives otherwise found within Clause 55 (for example at Clause 55.02-1).
The decision of D’Andrea however takes the view that where the numeric standard of B17 is met, there is no discretion for the Tribunal to consider neighbourhood character matters in the context of building height and setbacks.
The differing decisions of the Tribunal pose a difficulty in forecasting how a Council and ultimately a future Tribunal might regard compliance with these standards in circumstances where there are issues relating to neighbourhood character. We anticipate further decisions with respect to this issue in the coming months and will provide further updates on those decisions as they are to hand.
