Under development

The issue of “over-development” is often tendered in objection to planning permit applications. Such a concern usually relates to the perceived inability of a site to accommodate the scale of the development proposed.

”Underdevelopment” is also a legitimate matter to be considered within the planning regime and, although much less common, can be raised as a concern against a proposals that underutilise land in defiance of the relevant planning policy and controls.

The issue of underdevelopment was canvassed in a recent Victorian Civil and Administrative Tribunal (VCAT) case, Nice Star Pty Ltd v Maroondah CC [2017] VCAT 365, in which a proposal for four double-storey dwellings was refused, mainly on the basis that it did not achieve a level of development appropriate for the Residential Growth Zone (RGZ) and the Design and Development Overlay (DDO3).

The purpose of the RGZ includes (inter alia):

  • To provide housing at increased densities in buildings up to and including four storey buildings.
  • To encourage a scale of development that provides a transition between areas of more intensive use and development and other residential areas.

The objectives of the Design and Development Overlay in this case includes (inter alia):

  • To encourage future development that optimises the full potential of sites and reflects its location within a Central Activities Area.
  • To create certainty for the community, land owners and developers within Ringwood regarding the future of the Activity Centre and potential opportunities and constraints associated with existing allotments.
  • To encourage multi-level apartment style residential housing opportunities to complement and enhance the form and transit city role of the Ringwood Activity Centre.

The Tribunal noted in its reasoning that the scale of development anticipated is one that is higher and more intense than the surrounding suburban context and cited both State and Local Planning Provisions, including neighbourhood character policy, for promoting higher density apartment-style housing in more intensive multi-level forms.  It was the permit applicant’s case that the proposal was an intensification (with additional dwellings), and that an apartment development design (having costed it) would result in a loss of 27% investment. The Tribunal found this difficult to understand given apartments were being built concurrently in the activity centre, and that ultimately the proposal was not consistent with the zoning of the land, the DDO3 and local policy.

Similar findings were made in Black T Pty Ltd v Maribyrnong CC [2012] VCAT 303, where a proposal for five attached double-storey dwellings in addition to the existing dwelling, within the Footscray Central Activities District and on the edge of the Principle Public Transport Network (PPTN) was refused by the Tribunal, noting:

…built forms which represent substantial change are sought in this locale. In my view a two storey development, as is presently proposed in the Application, does not represent substantial change. There is already a mix of one and two storey development in the surrounding area. If this part of the CAD were to develop with two storey forms it would, in my view, be an under-realisation of the policy expectations for such a higher order activity centre.

 By contrast, in Melder Pty Ltd v Monash CC [2014] VCAT 131, a proposal for thirty double-storey dwellings in a Residential 1 Zone, the Tribunal did not agree with Council that the proposal constituted an underdevelopment of the site. While the review site had attributes to support a more intensive form of residential development, there was no clear policy within the Monash Planning Scheme which identified a particular development future, or strategic role, for the land. In that case the Tribunal found:

….there needs to be more than just an opportunity to perhaps achieve a few more dwellings, or another form of housing, for an otherwise appropriate proposal to be refused on the basis of being an underdevelopment.  There also needs to be a failure to achieve a clear policy vision, or a locally identified strategic opportunity, for a particular site or precinct.  Given the lack of a policy or DDO setting out a preferred future character or strategic direction for the site, I cannot conclude that the proposal before me is an underdevelopment in strategic terms.

These decisions highlight the importance of underlying planning policy, particularly the more specific local planning policy, in determining what is an appropriate development. Many Planning Schemes provide a Strategic Framework Plan which sets out the preferred development types by location, with corresponding policy. As noted in the Nice Star decision, the underlying zoning and any Design and Development or Development Plan Overlays also set out expectations for the scale of development within various parts of a municipality.

While the “underdevelopment” issue is a rare problem with most permit applicants, it is useful in highlighting the importance of using the underlying planning provisions to inform the design response, at an early stage of the development process.

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