Here Comes The Sun

Better Apartments is a joint project between the Department of Environment, Land, Water and Planning (DELWP) and the Office of the Victorian Government Architect (OVGA). In May 2015, the DELWP released Better Apartments – A Discussion Paper, seeking feedback from the public, practitioners and other interested parties. Of the issues raised in that feedback, the number 1 issue was daylight, being a component of Indoor Environmental Quality (IEQ).

Following a favourable recommendation by the Environmentally Sustainable Development Advisory Committee in April 2014, the City of Yarra, together with five other municipalities, have new Environmentally Sustainable Development (ESD) policies in their planning schemes approved by the Minister in November 2015.

Many of the ESD policies introduced to planning schemes include a requirement to provide a Sustainability Management Plan (SMP), including assessment of development proposals using a specific assessment tools, such as BESS (Built Environment Sustainability Scorecard) to replace STEPS and SDS (Sustainable Tools for Environmental Performance Strategy and Sustainable Design Scorecard), Green Star (developed by the Green Building Council of Australia), MUSIC (Model for Urban Stormwater Improvement Conceptualisation) or STORM (Melbourne Water). BESS is now the preferred tool for assessing energy and water efficiency, thermal comfort, and overall environmental sustainability performance of a new building or alteration. BESS has been developed by the Council Alliance for a Sustainable Built Environment (CASBE), the Alliance including around 18 mainly metropolitan Melbourne Councils.

The Port Phillip Planning Scheme, for example, has local policy specific to Environmentally Sustainable Design, at Clause 22.13, including a requirement for new applications to include:

  • A Sustainable Design Assessment (SDA) for smaller proposals (eg 2-9 dwellings or non-residential building with a gross floor area between 50m² and 1000m² (including BESS as an example tool)
  • A Sustainability Management Plan (SMP) for larger proposals, the scope of the plan and tools to be used depending on the scale of the proposal or number of dwellings proposed (including BESS as an example tool)
  • A green travel plan for larger non-residential developments

These provisions do have a transitional clause in which the policy to use these specific tools in development applications does not commence until the gazettal date of that Clause, in the case of Port Phillip, 19 November 2015. However, this does not obviate the need for an ESD assessment by other means in order to accord with the policy, the overarching objective being that development should achieve best practice in environmentally sustainable development from the design stage through to construction and operation. [our emphasis].

G3 Projects Pty Ltd v Yarra CC (Red Dot) [2016] VCAT 373 is one of the first Victorian Civil and Administrative Tribunal (the Tribunal) cases to have dealt with the new ESD policy. The proposal (in final form) included 37 dwellings over nine levels above a ground level shop and car parking. The provision of daylight to the proposed dwellings was a matter in contention between the Council and the permit applicant. Council, in using the BESS model, had submitted that the daylight to be achieved in the proposed apartments would not meet the numerical standards of BESS, and therefore not achieve best practice. The permit applicant called a daylight expert whose evidence was based only partially on the BESS model, with the permit applicant arguing that little weight should be applied to these assessment tools as they were only reference documents in the Yarra Planning Scheme. The Tribunal considered that BESS was a useful benchmark to apply the daylight assessment, because other evidence given to the Tribunal was not derived from the policy or other independent authority as an accepted industry best practice. Notwithstanding the transitional provisions for the application information requirements in the policy, the Tribunal considered BESS as a “best practice” tool, and in the absence of any other industry tool offered in submissions or evidence, considered it applicable.

This view was consistent with that of another case in Brat Investments Pty Ltd v Melbourne CC [2015] VCAT 2001 (23 December 2015) where the Tribunal considered that BESS that is considered best practice for assessing daylight where it is part of Planning Policy.

As a result of the applicant’s expert identifying areas where the provision of daylight could be improved to better accord with BESS standards, the Tribunal made orders that the applicant resubmit plans with such changes. Upon submission of those plans, and while the Council was still not satisfied with the quality of daylight achieved in the modelling, the Tribunal set aside Council’s decision and ordered that a permit be granted.

In the current regulatory environment which requires more rigorous assessments of ESD performance, this decision provides permit applicants with greater certainty in preparing permit applications, as it relates to ESD and which tools can be used to assess compliance. Having the tools referenced in a number of planning schemes provides better consistency when working with multiple Councils over various municipalities, often a frustration when different Councils accept or deem to require different tools for similar proposals.

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