Eltham planning permit granted! Thank goodness for VCAT

Photo 9-4-2024, 3 27 04 PM

Two weeks.

It took just two working weeks from the commencement of our 4-day VCAT Merits Hearing to receipt of our VCAT Order. An order that completely reversed Nillumbik Council's decision to refuse our application for 21 homes.

I can only speculate that The Tribunal were perhaps motivated to not further protract the significant and uneccessary delays caused by council. Regardless of the motivation we certaintly welcome such a swift and decisive determination.

Putting this into context, it took seventy two weeks (18 months) from the date of lodgement of our application with Nillumbik to the VCAT decision.

In fact, we were actually ready to lodge months before Council would let us. So it has actually taken more like 22 months.

Backing out 6 months for VCAT to run its course, it took 16 months for this Council to formally refuse our application. Nearly a year and a half to refuse a development that adaptably re-uses existing buildings, maintains and enhances heritage buildings, is virtually not visable from the street and is in a MUZ with site coverage of 30% (and 22% including additional UFZ land).

In hindsight, Council's reluctance to engage with us, the hurdles they created, and now with the benefit of the VCAT outcome, we can only assume Council never seriously intended to engage with or support a collaborative or constructive process.

To put this time and all the associated anxiety and significant costs incurred by this group of citizens into perspetive, it's worth considering the first 5 paragraphs of the Introduction in the Reasons why these Members reversed the decision:

  1. This case provides an exemplar of an innovative approach to dealing with the challenge of providing more diverse housing opportunities to meet the needs of all Victorians.

  2. In 2021 a group of people formed a housing co-operative and decided the best way to tackle housing supply and affordability was to purchase a site and develop a series of dwellings around a plethora of communal facilities. In short, this group of people decided to take action to solve their own housing affordability issues.

  3. This was by no means a half-baked idea. Instead, the group engaged highly respected professionals in a range of fields, including architecture, to design a series of dwellings that responded to the site’s constraints in an informed and clever manner. In a system where a development only needs to meet an appropriate or reasonable standard in order to gain a planning permit, it is our view that this proposal goes well beyond such measures. We have found that the proposal is an excellent response to its context both in terms of policy and its physical context. In summary, this is because:

      • The proposed development is contained on land within the Mixed Use Zone, which is intended to support higher residential densities, and in a location in which medium density housing is strongly encouraged by policy in the local planning scheme.
      • It has managed its interfaces so that from the public realm there will be minimal change, and arguably the streetscape will be improved.
      • It limits impacts upon its neighbours with effective site planning and additional landscaping.
      • It incorporates innovative architecture with a contemporary interpretation of what could be described as the Eltham style.
      • And perhaps most importantly, it involves a community focussed approach that minimises private space in favour of communal open space and facilities, and produces a housing opportunity that is presently not available in a location known for its sense of community and architectural innovation.
  4. The proposed addresses the call for diversity in housing supply that is one of the key planks of the Nillumbik Planning Scheme. In our view, this is a project that could and should have been supported and fast tracked because of the qualities we have outlined above. That instead this project was met with substantial delays and opposition, is part of a wider trend we are observing, that will fail to produce appropriate housing projects that can start to address the existing shortfall of housing supply presently being experienced across Metropolitan Melbourne.

  5. We find that the concerns of Council in particular arise from a misinterpretation of the role of the Eltham Gateway, and a failure to engage with the communal approach that drives the design.

These 5 paragraphs are worth reading again. These words are the only time throughout the whole process that we have received any positive feedback from an authority. Thank goodness for VCAT.

There are so many catch phrases from the housing crisis debate intertwined in these statements. Diversity. Affordabilitiy. Community. Innovative. Exemplar. Housing supply. Easily aspired to and aspoused in policy documents and presentations, harder to meaningfully deliver and support it seems. Can you "greenwash" housing policy?

Of course you can.

While at a strategic level this application ticked so many of these boxes, on this project:

  • Considerable delays were experienced despite the project team repeatedly seeking to work collaboratively with Council (multiple preapplication meetings, multiple changes to plans to address Council's RFIs that were drip feeded back to us in an ad hoc manner), we found that Council's fixation on minor non-compliances with statutory provisions, rather than engaging with the overall planning outcomes (refer to Deidun & Axford's point 3 re "a development only needs to meet an appropriate or reasonable standard"), resulted in a refusal.
  • Council's stance requiring an approved CHMP before advertising, rather than prior to permit issue (Council were adamant that an approved CHMP was required prior to lodgement even) caused delays before an application could even be lodged. There seemed to be no legal basis for this, other than the benefit this would have on statutory day calculations.
  • After the Council refusal and our appeal to VCAT, Council's VCAT representatives did not do us the courtesy of reviewing our without prejudice plans for Compulsory Conference (CC). Council's representative also failed to conduct a site inspection before our Merits Hearing, objecting to the 3D visualisation (see video below) being shown to the Members (Council was shown it at our CC) and doodled portaits of an expert witness at the bar during the hearing. Yes, thats correct. Doodling at the bar.

Needless to say,  the feelings from the members of the collective and myself on this are bitter-sweet.

On one hand this decision has restored our faith in the system to quickly deliver common sense outcomes.

On the other hand, it is bitterly disappointing that a model applicant can have been subjected to such disrespect and unprofessionalism by a local government authority. All the more galling for a project which has been described by the VCAT Members as "an exemplar of an innovative approach to dealing with the challenge of diverse housing opportunities to meet the needs of Victorians" which provides "an excellent response to its context both in terms of policy and its physical context".

Thanks must go to firstly the members of the collective (some of whom are pictured in this post) who at all times were keen to remain a model applicant and trusted our advice in helping them navigate this pathway.

Thanks must also go to the "highly respected professionals" (as the Tribunal point out) that helped us achieve this result. Your energy, creativity, passion & professionalism for helping the collective achieve its vision has been exemplary. Our sincere thanks to (in no particular order):

It is now clear that the speculative off the plan (OTP) delivery model Australia has depended upon can no longer deliver the infill housing Australians need throughout our towns and cities.

Community-led development models are innovative by nature and are inherently harder to realise than the standard approach to housing delivery. The entrepreneurial people that drive these models need and deserve support from all authorities to encourage the growth and capacity of the sector as a part of a healthy and diverse housing continuum.

Hopefully this case study can help to drive some of system change we need to see.

We only need to look to other global cities to get some inspiration for how we can do things better.

Final word to Mathew Griffin, architect and member of the Initiative Stadt Neu Denken (from Self Made City - Berlin: Self-initiated Urban Living and Architectural Interventions):

"The great thing about Berlin's selfmade culture is its diversity. Locally grown projects are tailored specifically to the people that make them, and to the neighbourhoods in which they are built. There is no consistent style, and no typical solution. However, locally grown projects produce a broader range of solution that investor projects. This is an advantage for both the project's users, for the neighbourhood and for the city. one of our mottos is: "Develop the city, develop yourself". I believe that the act of making the city changes your relationship to it. The more people that actively take part in creating our city, the better it will be. The city is the ultimate crowd-sourced project."

You can read the VCAT decision in full below:



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