Tribunal’s Latest Decision on the Meaning of Natural Ground Level

Best Hooper
28 January 2017

Faversham Mews Pty Ltd V Boroondara CC [2016] VCAT 1954 (“Faversham Mews”)

This case commenced innocuously enough; a merits review by the Permit Applicant against the Boroondara City Council’s refusal to grant a planning permit for a four-storey apartment building in Kew.

Our office acted for the objector immediately abutting the Subject Land.

Once at the Tribunal, it became apparent that the proposed building height as measured from ground level might not have appeared what it seemed to be on the plans, which was integral to whether the mandatory height control was exceeded.

The parties agreed that the matter raised a Question of Law to be determined at the scheduled hearing:

“Does the height of the proposed building comply with the maximum building height under clause 3.0 of schedule 1 to the General Residential Zone in the Boroondara Planning Scheme?”

Legal submissions put by the parties to the Tribunal required consideration of what constitutes natural ground level (NGL) and where that measurement is taken from. NGL is not defined in the Planning Scheme or the Planning and Environment Act 1987.

The Tribunal confirmed that whilst it had a question of law to determine, the question is one of mixed fact and law, notably setting out the four distinct sub-questions it had to determine at paragraph 5 of its determination.

In previous cases before the Court or Tribunal, the generally accepted position was that NGL is the condition of land immediately prior to the planning application being lodged.

Amongst other things, in Faversham Mews, the Tribunal had to consider the evidence surrounding what information or data identifies the NGL.

To assist, our office circulated the expert evidence of a retired land and hydrographic surveyor. The evidence we called was persuasive in the Tribunal’s view (paragraphs 44-51).

Moreover, our expert was able to draw on research from the Public Records Office, notably plans obtained from the Melbourne Metropolitan Board of Works (MMBW), and demonstrate that errors had likely crept into the VicMap data that the Permit Applicant was relying upon.

The Permit Applicant also called evidence from two land surveyors and relied on Vicmap spatial data to show the land contours of the Subject Land and its NGL. The Tribunal was not satisfied that Vicmap contours reflect the NGL for reasons set out at paragraphs 54-65.

The Tribunal ultimately accepted our expert’s opinion and determined that the NGL of the land is its level about 60 years ago before it was disturbed to construct the existing buildings, circa 1955 (refer paragraph 7).

The Tribunal’s determination ultimately means the proposed building height exceeded the 10 metre maximum limit. However rather than refuse the application, the Tribunal offered the Permit Applicant an opportunity to amend the plans (likely meaning one less storey to the proposed building’s height).

In summary, whilst the matter remains free from doubt and debate may continue, it will ultimately be one determined on a case-by-case basis. However, what Faversham Mews demonstrates is that NGL is not to be determined necessarily by the existing conditions of the site. Rather, if evidence can be produced to sufficiently demonstrate where the NGL was at a particular point in time, it has the ability to succeed contrary to what has generally been understood (i.e. the ground level of the land as they existed immediately prior to the planning application being lodged).

The decision potentially opens up a complex debate and the need for evidence as to what the NGL of any site is.