A recent VCAT decision has reinforced changes to the Victorian Planning Provisions (VPPs) that reflect the growing need and increased planning-support for aged care facilities.
In Japara Developments Pty Ltd v Knox CC [2019] VCAT 828 the Victorian Civil and Administrative Tribunal (“the Tribunal”) considered a planning application for a 95-place residential aged care facility at Lysterfield, within a Neighbourhood Residential Zone, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Design and Development Overlay (DDO) and Bushfire Management Overlay. Permit triggers included buildings and works under the zone and overlay provisions. Of note, the zone does not require a planning permit for the use of the land for a residential aged care facility, but it specifically requires a planning permit for buildings and works in relation to an aged care facility.
Council had refused the application. The Council’s submission was that its planning scheme supported aged care facilities in better serviced locations, and that the building would adversely affect the area’s identified significant landscape values.
The Tribunal set aside Council’s decision to refuse the application, and ordered a permit granted. Much of the Tribunal’s consideration focussed on the relationship between Clause 53.17 Residential aged care facilities and the zone and overlay provisions. Of particularly interest were the specific requirements of Clause 53.17 that conflicted with Overlay requirements.
Clause 53.17 – Residential Aged Care Facility was introduced to the VPPs by Planning Scheme Amendment VC152 on 26 October 2018 and sets out general requirements and performance standards. The purpose of the provision is:
To facilitate the development of well-designed residential aged care facilities to meet existing and future needs.
To recognise that residential aged care facilities have a different scale and built form to the surrounding neighbourhood.
To ensure residential aged care facilities do not unreasonably impact on the amenity of adjoining dwellings.
It includes specific requirements that override some of the mandatory and discretionary requirements often contained in zones and overlays. These requirements apply to building height, site coverage, setbacks, internal amenity and external amenity.
Clause 53.17 includes the following inconsistency provision:
‘If there is any inconsistency between a requirement in this clause and a requirement in another provision of this planning scheme, this clause prevails’
In the course of the Japara Developments hearing, the Council raised four questions of law in relation to inconsistency between the requirements of the DDO that affected the site and the requirements of Clause 53.17-3. On these questions the Tribunal found as follows:
- Is the provision under the heading ‘Site coverage’ in clause 53.17-3 of the Scheme (‘site coverage provision’), a requirement?
The Tribunal found that yes, it was a requirement.
- If the site coverage provision is a requirement, is the requirement relating to the site area covered by buildings and impervious surfaces in clause 2.0 of DDO3 inconsistent with the site coverage provision?
Yes, a site coverage requirement of the aged care residential facilities provisions is inconsistent with the impervious surfaces provisions of the DDO.
- If the site coverage provision is a requirement and it is inconsistent with the requirement relating to the site area covered by buildings in clause 2.0 of DDO3, does the provision under the heading ‘Operation’ of clause 53.17-3 (‘inconsistency provision’) enable a development that is prohibited under clause 2.0 of DDO3 to be permissible?
Yes – the inconsistency provision in clause 53.17-3 enables a development that is prohibited under clause 2.0 of DDO3 to be permissible.
- If the answer to question 2 is yes, does the inconsistency provision enable a development that is prohibited under clause 2.0 of DDO3 to be permissible?
Yes – the inconsistency provision of clause 53.17-3 enables a development that is prohibited under clause 2.0 of DDO3 to be permissible.
The Tribunal also noted that:
The inconsistency provision does not override other relevant planning scheme provisions or planning policy more generally. Importantly here, this includes the objectives and other provisions of DDO3. These must all still be considered and balanced in the context of an overall integrated planning decision.
And:
Significantly, clause 53.17 does not refer to neighbourhood character in its purpose or its requirements. What replaces neighbourhood character considerations are:
- a purpose that recognises that residential aged care facilities have a different scale and built form to the surrounding neighbourhood; and
- an obligation that built form is ‘contextual’ as defined by the site and context description.
Council submitted that the proposal’s visual bulk and large form were not appropriate within its physical context, nor within the policy context of the Dandenong foothills. The Tribunal found that this policy direction was challenged by State policy which recognised that residential aged care facilities are an appropriate use in residential areas, and by the provisions of Clause 53.17 that override some requirements of the zones and overlays. In particular, State policy at Clause 16.01-7 for residential aged care facilities seeks to:
Recognise that residential aged care facilities are different to dwellings in their purpose and function, and will have a different built form (including height, scale and mass).
Practitioners should be aware that the Japara Developments decision reinforces the strength of Clause 53.17 and the fact that aged care facilities play by a different set of rules with regards to siting, built form, amenity impacts and neighbourhood character.
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