Help for residents to argue on Rescode guidelines at VCAT

by Ian Wood, President of SOS & Member of PIA (Planning Institute of Australia)

NOTE 1:    Under “Requirements” at the start of Rescode (Clauses 54 & 55) the preamble states that if a Schedule to a Zone or Overlay specifies a different standard (ie, a “local variation”) to that set out in the Rescode clause, then the “requirement under that zone or overlay applies”.  The text avoids using the verbs “should” or “must” but the intention is clear – in this situation, local policy should take preference over state controls.

NOTE 2:    Since this SOS advice was written on the interpretation of Rescode objectives, standards and guidelines, this issue has become a hot topic of debate among VCAT members. There are at least 6 relevant VCAT references to it now, including some with conflicting views. It will pay you to read them carefully in preparing your case.  

NOTE 3:    However, none of the arguments in the cases listed below changes one particular relevant situation:  the fact that Perforated Metal Screening with a regular pattern of small-diameter holes does NOT in practice meet the objective of “limiting overlooking”, despite technically meeting the standard (see last part of advice below).

RELEVANT CASES

Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274 (30 June 2005)
Russell Byard, Senior Member    Operation of Rescode: Para 27-37

Li Chak Lai v Whitehorse CC (no.2) [2005] VCAT 1438 (18 July 2005)
Russell Byard, Senior Member (correction)

Lamaro v Hume CC & Anor (Summary)(Red Dot) [2013] VCAT 957 (13 June 2013)    Rachel Naylor, Member   Para 11-16

Red Star Beaumaris Pty Ltd v Bayside CC [2015] VCAT 305 (17 March 2015)    Russell Byard, Senior Member    ResCode: standards and objectives; para 198-210

Ye v Boroondara CC [2015] VCAT 1051 (10 July 2015)
Mary-Anne Taranto, Member    ResCode compliance: para 49-56

Belokozovski v Port Phillip CC [2015] VCAT 1046 (16 July 2015)
Russell Byard, Senior Member    ResCode ground of refusal: objectives and standards:   para 69-88

NB: Belokozovski also refers to  Victorian Planning Reports, VCAT Vol 2 No 13:   1. Enough is Enough: Time for Clarity on ResCode Standards and Objectives    http://www.vprs.com.au/382-editorials/vcat/1468-vcat-volume-2-no-13

SOS ADVICE

Rescode specifies objectives, standards and decision guidelines for development application assessments. The objectives describe the desired outcomes that must be achieved, the standards specify the requirements to meet those objectives, and the guidelines cite the issues Council must consider in deciding if an application meets the objectives.

But is an objective automatically met just because the corresponding standard is met?

VCAT’s interpretation in Chak Lai Li v Whitehorse CC (Red Dot) [2005] VCAT 1274 (30 June 2005) was that because standards contain requirements to meet the objective, meeting a standard must mean that the corresponding objective has been met.

However, the 2004 Department of Infrastructure practice note “Understanding the Residential Development Standards” argues the opposite – if the particular features of a site or neighbourhood mean that applying a standard wouldn’t meet the corresponding objective, an alternative design solution to meet the objective is required.

That DOI interpretation was upheld by VCAT in Lamaro v Hume CC & Anor [2013] VCAT 957 where the Member said: “Chak Lai Li ….. contains no discussion or interpretation about where the decision guidelines fit in or the use of the words “should” and “must” at the beginning of clause 55 under the headings ‘operation’ and ‘requirements’.”

Under “Requirements”, Rescode says development MUST meet all objectives. The decision guidelines must also be considered, and they apply to both the quantitative and qualitative parts of an objective.

The purposes of Clauses 54 & 55 include encouraging residential development which is responsive to the site and the neighbourhood and provides reasonable standards of amenity for existing and new residents.

As the Tribunal in Lamaro concluded, mere application of quantitative standards doesn’t necessarily achieve the purpose of clause 55, because a qualitative judgment must be made in each neighbourhood and site context.

Read this decision carefully because it could help objectors understand how to argue more effectively at VCAT (and with councils) for stronger Rescode requirements against inappropriate designs that fail to adequately consider local character and site context.

NOTE:            Perforated Metal Screening with its regular pattern of closely-spaced round holes is one example where a standard can be technically met but where the objective isn’t. Perforated metal screening is occasionally used in residential developments to reduce overlooking. Most types technically meet the Rescode overlooking standard of 25% or less openings, but are effectively transparent when viewed from more than a few metres away because of the diffraction effect created by the rows of regularly-spaced spherical holes.

Thus occupants have an unimpeded view during the day through a window or balcony fitted with perforated metal screening, while the reverse is true at night. Maximum transparency occurs when viewing from a dark area to a more brightly lit one.

Consequently, perforated metal screening is used mostly for the screening of large facilities like multi-storey car parks, where light and air can enter while the interior is partially screened from view.

SO ALWAYS ARGUE AT COUNCIL OR VCAT FOR EFFECTIVE SCREENING TECHNIQUES SUCH AS OPAQUE GLASS OR SLATTED SCREENS, OR PERFORATED SCREENING WITHOUT REGULAR CIRCULAR HOLES

For more detail on the diffraction effect of perforated metal screening, see:  www.sos.asn.au/files/APP.2-PMS.pdf