ordinary council meeting - 22 february 2016 - item 13

Council Meeting Agenda 22/02/16

13 Amendment C255 - Minister's proposed introduction of discretionary height limits in three commercial corridors

Abstract The Minister for Planning is seeking Council’s feedback on a proposal to implement discretionary height controls in the Burwood/Camberwell Road, Canterbury Road and Tooronga Commercial Corridors. The Minister for Planning is intending to exercise his powers under Sections 8 and 20(4) of the Planning and Environment Act 1987 to implement discretionary height controls through Amendment C255 to the Boroondara Planning Scheme. Council received notification of the proposed changes on 29 December 2015. Currently, the three commercial corridors are subject to mandatory building heights which were introduced as part of Amendment C108 on 9 April 2015. The Minister’s reasoning for the amendment is as follows: 1. That the delegate decision to approve Amendment C108 was based on

incomplete information provided by officers from the Department of Environment, Land Water and Planning regarding the Panel’s concerns with mandatory building heights.

2. That the increased application of mandatory height controls through the Neighbourhood Residential Zone has created a “greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs”.

3. That the introduction of discretionary heights will create certainty to Council, residents and commercial land owners about where a larger scale of development can be supported.

Officers have significant concerns regarding by the proposed amendment, specifically, the lack of strategic rigour of the amendment, the absence of supporting information as well as the process being followed. Overall, the amendment creates the potential for building heights to be exceeded and ultimately undermine valued neighbourhood character of the local area. Officers have prepared a draft submission to Amendment C255 (Attachment 1) and are seeking Council’s endorsement. Feedback on the proposed amendment is due with the Minister for Planning by 23 February 2016.

Officers' recommendation That Council resolve to: 1. Endorse the submission in response to the proposed Amendment C255

contained at Attachment 1. 2. Write to the Minister for Planning attaching Council’s submission and

requesting a meeting with the Minister for Planning to discuss the amendment in more detail.

Document information

City of Boroondara Amendment C255 of 24


Responsible director: John Luppino

City Planning __________________________________________________________________ 1. Purpose

The purpose of this report is to inform Councillors of proposed Amendment C255 to the Boroondara Planning Scheme prepared by the Minister for Planning. The report also seeks endorsement of the draft submission at Attachment 1.

2. Policy implications and relevance to council plan

The planning provisions that apply to Boroondara’s 31 neighbourhood centres and three commercial corridors aim to provide planning certainty to decision-makers, residents and applicants with regard to maximum overall building heights and intended built form design outcomes. The current height controls are consistent with Council's commitment to 'engage with our community in striving for protection and enhancement of the natural and built environment' in order to achieve the objective of ‘the character of our neighbourhoods is protected and improved’. (Council Plan June 2013-17). Amendment C255 is inconsistent with these Council Plan commitments because it would remove the mandatory height controls in the three commercial corridors. This would allow for increased building heights which could undermine valued local neighbourhood character of the commercial streetscape and immediately adjoining residential areas.

3. Background

The mandatory building heights were introduced by Amendment C108 on 9 April 2015 following a five-year consultation process including a Panel Hearing. The amendment was approved under delegation from the Minister for Planning. Council received a letter from the Minister for Planning on 29 December 2015 (dated 13 December 2015) seeking Council’s feedback on a proposal to replace the current mandatory height controls for the three commercial corridors with discretionary height controls. The amendment retains the mandatory street wall heights. A copy of the letter from the Minister for Planning is at Attachment 2. On 6 January 2016, officers sought formal clarification from DELWP on a number of issues raised in the letter. A response was received from DELWP on 4 February 2016. The response provided by DELWP officer does not alter officers’ position on the proposed amendment and their recommendations as the letter provides no new information on why the amendment is being proposed by the Minister for Planning. Officers have reviewed the proposed amendment and associated documentation and have prepared a draft submission. A copy of the draft submission is contained at Attachment 1.



4. Outline of key issues/options

The Minister’s letter presents the following three arguments as justification for replacing the existing mandatory height controls with discretionary height controls: 1. That the delegate decision to approve Amendment C108 was based on

incomplete information provided by officers from the Department of Environment, Land Water and Planning regarding the Panel’s concerns with mandatory building heights.

2. That the increased application of mandatory height controls through the Neighbourhood Residential Zone has created a “greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs”.


Each of these will be discussed in more detail below and form the basis of officers’ draft submission contained at Attachment 1. Overall, officers have significant concerns regarding the amendment. The decision to approve C108 was based on incomplete information

The Minister suggests that the decision to approve Amendment C108 was based on incomplete information provided by DELWP officers that did not clearly articulate the Panel’s concern regarding mandatory heights. Officers have the following concerns in relation to this argument:

While the Panel appointed to consider Amendment C108 and submissions to it did not support the application of mandatory building height controls in the commercial corridors, Council and the Minister are not bound by the Panel’s recommendation and can reach different conclusions. This is not unusual and is in itself not sufficient reason for reviewing or changing the existing controls.

The Minister’s letter and the preparation of Amendment C255 imply that the decision to approve Amendment C108 with mandatory building height controls was flawed, as DELWP officers provided incomplete information to the Minister’s delegate. The Panel’s reasoning for supporting discretionary controls rather than mandatory is based predominantly on an ideological argument of providing site-responsive designs that optimise development outcomes and provide interface management. It is unclear how this could have possibly been misrepresented by Department officers. No further detail has been provided by DELWP with regard to which aspects have been misrepresented by DELWP officers in making the recommendation.

It’s entirely inappropriate to review planning controls that are not of any regional or state significance so shortly after they were introduced. There has been insufficient opportunity to determine the success or otherwise of the mandatory controls given their short time period of existence.

The mandatory nature of the existing controls will have negligible impact on Boroondara’s or metropolitan Melbourne’s ability to meet future housing needs. In the view of officers, the proposed changes will not result in the development outcomes the Minister for Planning is seeking because residential development is prohibited in two of the three commercial corridors. They are therefore considered unnecessary and unjustified.



There is greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs

The Minister’s letter states that there should be “greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs”. While officers do not dispute this sound strategic principle, there are a number of flaws with regard to this amendment including: Commercial corridors have not been identified as activity centres in Plan

Melbourne or any previous metropolitan strategy. From a metropolitan hierarchy perspective, they have a status comparable to neighbourhood centres and should be considered as such.

The additional development potential of these corridors under discretionary controls presents a negligible contribution to the broader metropolitan context of future housing needs.

Council’s activity centres, commercial corridors and neighbourhood centres already provide for significant capacity to meet future housing needs. This is supported by housing capacity analysis undertaken by EdgResearch and SGS Economics and Planning.

The dominant zone in two of the three corridors is the Commercial 2 Zone (C2Z). The C2Z prohibits residential dwellings.

It is inconsistent with the decision by the Minister for Planning to introduce interim maximum building height controls for the Melbourne Central Business District (CBD), parts of Southbank and the Shrine of Remembrance, under Amendment C262 to the Melbourne Planning Scheme. These are more appropriate locations for residential intensification and the potential use of discretionary height controls.

The introduction of discretionary height controls will create certainty The letter from the Minister suggests that discretionary building heights “will provide certainty to Council, residents and commercial land owners about where a larger scale of development can be supported”. Officers disagree with this reasoning and claim and consider that the opposite holds true because: Residential uses are prohibited in two of the three commercial corridors

due to the extensive presence of the C2Z (Canterbury Road and Tooronga). These areas therefore will not be able to accommodate more intensive residential development.

The mandatory building heights as they currently exist in DDO16 are appropriate given the type of uses that are able to establish in the C2Z. Council has no intention to review the zoning of these areas given their economic and employment importance to the City of Boroondara.

The Burwood/Camberwell Road Commercial Corridor already allows for substantial building heights with some areas allowing for up to 30 metres in height. Other areas in this corridor allow for developments between 17 and 22 metres.



The removal of mandatory building heights would result in less certainty than is currently the case. History has shown that developers routinely use discretionary building heights as a loose guide only and often seek developments far in excess of any such limits. This results in greater levels of opposition from residents, slower decision making-processes and increased costs to all parties as a result of VCAT appeals. The amendment will result in a less efficient planning process and lead to worse outcomes for all parties involved.

Overall, the building heights in the three commercial corridors already identify these areas for greater levels of development and intensity particularly when compared to the context of the lower building heights in the surrounding residential areas. The proposed consultation process Officers are disappointed with the timing of the Minister’s letter and the intention to consult with submitters to Amendment C108 during the Christmas, New Year and school holiday period. Officers also have the following concerns with regard to the consultation process proposed by the Minister for Amendment C255: The process lacks transparency and appears to be designed to limit public

debate about a significant policy change. Officers consider that the proposed changes have the potential to detrimentally impact on the character of the municipality and the amenity of many residents.

Limiting consultation to submitters is inappropriate and raises concerns of procedural fairness and natural justice. In the view of officers, the Minister should notify and seek the views of all directly affected and abutting owners and occupiers.

Council has carried out extensive community consultation as part of a large number of strategic planning projects over the last decade. The community has consistently expressed their strong desire and preference for mandatory building heights to protect local character and amenity.

Officers have notified all directly affected and adjoining owners and occupiers of the commercial corridors and submitters to Amendment C108 to inform them of Amendment C255. The letter provides information about the amendment and provides a link to the DELWP website to view the amendment documents. The letter also notifies parties that Council is preparing a separate submission on the amendment which will be presented at the Ordinary Council meeting on 22 February 2016 and that if people wanted to view the submission, it was available for viewing ten days prior to the meeting. Due to the short timeframe of the amendment, officers have not requested feedback on the amendment and have instead informed residents that submissions should be sent directly to the Minister for Planning by 23 February 2016.



Considerations for each of the commercial corridors As noted above, two of the three commercial corridors are partly within the C2Z, where residential uses are prohibited. In this respect, it is not anticipated that the amendment will have a significant impact on the Canterbury Road or Tooronga Commercial Corridors from a land use perspective. The only way this could be achieved would be to simultaneously rezone these corridors to a zone that allows residential uses (e.g. C1Z or Mixed Use Zone) as part of the amendment. Whilst officers consider this a potential option to the Minister, this would be a significant change to the amendment as exhibited and mostly likely require further notification of affected and adjoining property owners and submitters to Amendment C108, if proposed. There are sensitive residential interfaces to the Commercial 1 Zone (C1Z) areas of the Canterbury Road Commercial Corridor. These C1Z areas are located on the southern side of Canterbury Road and adjoin land in the Neighbourhood Residential Zone - Schedule 3 (NRZ3). Officers consider that the most significant impact from the amendment will be on the Burwood/Camberwell Road Commercial Corridor. This corridor is zoned C1Z, where residential uses do not require a planning permit (subject to some conditions). Further, this commercial corridor already allows generous mandatory building height limits, including up to 30 metres in parts. This commercial corridor has some sensitive interfaces on the southern and eastern sides of Burwood Road and Camberwell Road where the commercial corridor abuts land in the NRZ3 and the General Residential Zone - Schedule 3. Officers recommend that a meeting be convened with the Minister for Planning to discuss the amendment in more detail and negotiate an outcomes that is mutually beneficial to Council and the Minister. Amendment documentation Officers have reviewed the proposed DDO17 to check that all relevant provisions of the existing DDO16 have been translated into DDO17. Officers are satisfied that DDO17 is drafted correctly in the context of discretionary controls and that no relevant provisions are left out. A copy of the proposed DDO17 showing any changes compared to the existing DDO16 is contained at Attachment 3. Officers also note that revised DDO17 includes an update to the transitional arrangements. The update continues to exempt planning permit applications lodged prior to 9 April 2015 from the mandatory requirements (street wall heights). Whilst this is consistent with the existing DDO16, it raises the possibility of applicants with previously approved developments seeking amendments to their existing permits to exceed the previous mandatory height under the proposed DDO17. Officers note that a revised DDO16 which shows the removal of the commercial corridors from that planning control has not been prepared as part of the amendment and therefore does not form part of the exhibited amendment documentation. Usually any revised planning control would need to be provided as part of the exhibited documentation.



5. Consultation/communication

No internal or external consultation has been undertaken to inform this report. Officers have prepared a mail out to all directly affected and adjoining owners and occupiers and submitters to Amendment C108 informing them of Amendment C255 and advising them to lodge their objections directly with the Minister for Planning

6. Financial and resource implications

Costs associated with Amendment C255 are expected to be limited to existing staff resources. These costs will be met as part of the Strategic Planning Department’s 2015-2016 budget.

7. Governance issues

The officers responsible for this report have no direct or indirect interests requiring disclosure. The implications of this report have been assessed and are not considered likely to breach or infringe upon, the human rights contained in the Victorian Charter of Human Rights and Responsibilities Act 2006.

8. Social and environmental issues

The existing mandatory height controls covering Boroondara’s 31 neighbourhood centres and three commercial corridors preserves the prevailing streetscape character, provides planning certainty and prevents over development. Amendment C255 would potentially allow development to be built in a way which is inconsistent with these originally intended outcomes. Amendment C255 puts at risk the valued character of Boroondara’s neighbourhoods, and could potentially undermine the valued liveability, and health and wellbeing of the community through over-development.

Manager: Zoran Jovanovski, Strategic Planning Report officer: Robert Costello, Senior Project Planner, Strategic Planning


Amendment C255 to the Boroondara Planning Scheme

Introduction of discretionary height controls for three commercial corridors

Submission by Boroondara City CouncilAdopted by Council on 22 February 2016

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Council Meeting Agenda 22/02/16______________________________________________________________________________________

______________________________________________________________________________________City of Boroondara Amendment C255 of 24

1. Introduction

The Minister’s letter presents the following three arguments as justification for replacing mandatory with discretionary overall building height controls:

1. That the delegate decision to approve Amendment C108 was based on incomplete information provided by officers from the Department of Environment, Land Water and Planning regarding the Panel’s concerns with mandatory building heights.

2. That the increased application of mandatory height controls through the Neighbourhood Residential Zone has created a “greater onus on activity centresto accommodate mixed uses including an increasing share of future housing needs”.


Overall the proposed amendment lacks strategic rigour, is ill-conceived and will not achieve the intended strategic outcomes it purports to. Council is also concerned that if approved, the amendment will result in policy confusion and lead to poor development outcomes.

This submission is structured around the three key arguments presented in the Minister’s letter with a response to each provided in Sections 2, 3 and 4 below. Following this, the submission raises three other issues of concern to Council (Sections 5, 6 and 7).

2. The decision to approve C108 was based on incomplete information

Amendment C108 introduced the existing planning controls following a five-year process that involved extensive consultation with directly affected and abutting property owners/occupiers, the development industry and the broader Boroondara community.

While the Panel did not support the application of mandatory building height controls in the commercial corridors, the Panel is not a decision-making body. Council and the Minister are not bound by the Panel’s recommendations and can reach different conclusions. This is exactly what occurred in the case of Amendment C108.

The Amendment C255 explanatory report states that ‘the decision did not give effect to the Panel’s recommendations in relation to height controls’. Technically, it does nothave to. It is not unusual for a Council or Minister to make a decision that is not entirely consistent with a Panel’s recommendation. In itself this is not a sufficient reason for reviewing or changing the existing controls so soon after they were introduced. Council has duly considered all submissions whether they were in support or opposition of mandatory building height controls. Council has also had due regard to the Panel’s arguments against mandatory building heights. Yet, on balance, Council did not agree with the Panel and made a request for mandatory height controls. Council still considers mandatory maximum height controls to be the most appropriate policy outcome.

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Council considers it entirely inappropriate to review the decision with regards to planning controls that are not of any broader regional or state significance. Council is unsure why these controls are being reviewed? The reasons provided in the Minister’s letter or amendment documentation do not offer clear justification for this review.

As will be discussed in Section 2.2 below, the mandatory nature of the controls will have negligible impact on Boroondara’s or metropolitan Melbourne’s ability to meet future housing needs. Surely, there are much broader and more important decisions that need to be made to ensure Melbourne can maintain its liveability while accommodating increasing housing demand than what is being proposed by Amendment C255? The proposed changes will not result in the development outcomes the amendment purports to seek and are therefore completely unnecessaryand unjustified (Further explored at Section 2.4).

Of far greater concern to Council is the allegation that officers from the Department provided incomplete information (intentionally or otherwise) to the Minister’s delegate.If it were true that DELWP officers withheld information, this raises serious concerns regarding their ability to objectively prepare Amendment C255 and assess its strategic justification. Council is concerned that DELWP officers may now be acting to ‘correct’ a perceived error and in doing so are neither approaching this amendment objectively nor undertaking the strategic analysis required to justify the changesproposed. The justification provided in the Minister’s letter in support of the proposed change leaves the impression that the amendment has not been properly considered and lacks the strategic rigour that would normally be considered necessary. The amendment therefore should not be supported.

The Minister’s letter and the preparation of Amendment C255 imply that the decision to approve Amendment C108 with mandatory building height controls was flawed, as DELWP officers provided incomplete information to the Minister’s delegate. It also assumes that the Minister’s delegate would have reached a different decision had he been properly informed of the Panel’s reservations regarding mandatory building heights. Yet, a careful analysis of the Panel report shows that the Panel did not present a unique or even new view on this well-discussed issue. The Panel’s reasoning for supporting discretionary overall building height controls rather than mandatory controls is based predominantly on an ideological argument of providing site-responsive designs that optimise development outcomes and provide interface management i.e. leave it to the market to decide what is appropriate. This is hardly an innovative line of thinking, and something that the Minister’s delegate wouldn’t have been aware of at the time of making a decision. It is unclear how this could have possibly been misrepresented by Department officers. Council officers sought clarification on this issue yet no response has been received at the time of finalising this submission. It is disappointing that DELWP officers did not even respond to Council officer’s request for clarification and further information to enable a more informed submission.

Is it now the Minister’s intention to review every single decision ever made by its delegates and to check whether all relevant pieces of information were provided to the final decision-maker? This would be a waste of resources at both State and local government, with little or no benefit to the public, particularly the local community. If these controls are the only controls the Minister is intending to review, then the question needs to be asked why Boroondara is singled out? There does not appear

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to be any clear or sufficient reason to review and change these controls after they have been in operation since April 2015.

3. There is greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs

The Minister’s states that there should be ‘greater onus on activity centres to accommodate mixed uses including an increasing share of future housing needs’. Council does not dispute this sound strategic principle. However, Council does not consider that this principle applies in this instance. Specifically, there are a number of flaws in the Minister’s argument including that:

According to Plan Melbourne, commercial corridors are not ‘activity centres’ but should be classified as neighbourhood centres. The additional development potential of these corridors under discretionary controls presents a negligible contribution to the broader metropolitan context of future housing needs. Council’s activity centres, commercial corridors and neighbourhood centres already provide for significant capacity to meet future housing needs. The prohibition of residential uses in two of three corridors means that the land use outcomes sought through the introduction of discretionary height controls cannot be achieved. It is inconsistent with the decision by the Minister for Planning to introduce interim building height controls for the Melbourne Central Business District (CBD), parts of Southbank and the Shrine of Remembrance, under Amendment C262 to the Melbourne Planning Scheme.

Each of these is discussed in more detail below.

3.1. Classification of commercial corridors as activity centres

Council strongly disputes that the three commercial corridors are ‘activity centres’ and therefore need to accommodate mixed use development.

Activity centres have been clearly identified in Melbourne 2030 (October 2002), Melbourne @ 5 Million (December 2008) and most recently Plan Melbourne (May 2014). However, none of these metropolitan strategies identify the 3 commercial corridors as ‘activity centres’. Plan Melbourne only identifies Camberwell Junction, Glenferrie and Kew Junction as ‘activity centres’ on Maps 8 (p.27) and 33 (p.180).Even the recently released Plan Melbourne Refresh Discussion Paper does notforeshadow an intention to re-classify these corridors as ‘activity centres’.

Given that they are clearly not identified as ‘activity centres’ in relevant strategies, theclaim that they should be considered as ‘activity centres’ and their policy directionshould be identical to that of ‘activity centres’ is flawed. Given the hierarchy set out in successive Victorian State Government planning strategies, they can only beclassified as being of local significance. In the metropolitan hierarchy set out in Table 1 (p.32) in Plan Melbourne, they therefore sit on the same level as a ‘neighbourhood centre’. The designation, planning and coordination of ‘neighbourhood centres’ is the responsibility of local government as set out in Table 1 (p.32).

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Council therefore sees no strategic justification for the Minister’s intervention in planning for these centres, when Plan Melbourne clearly identifies these areas as Council’s responsibility. Irrespective of their title of ‘commercial corridors’, they sit at the same level in the metropolitan hierarchy as ‘neighbourhood centres’. They should not be treated differently or in the same way as metropolitan activity centres are. As stated in the Minister’s letter, mandatory heights are appropriate for neighbourhood centres in accordance with Initiative 4.2.2 in Plan Melbourne.

Council has prepared structure plans for the three activity centres identified in PlanMelbourne. These structure plans provide for extensive development opportunities consistent with the Minister’s direction that they take greater onus in accommodating mixed uses including an increasing share of future housing needs.

While Council is currently in the process of reviewing the Camberwell Junction Structure Plan, the Minister would be aware of Council’s request to approve Amendment C230 which seeks to implement the recommendations of the Glenferrie and Kew Junction Structure Plans. In this context, the Minister should approve Amendment C230 which in turn will provide a much clearer signal to relevant stakeholders of where development is expected to occur and in what form.

3.2. The commercial corridors in the context of future metropolitan housing needs

The proposed introduction of discretionary building heights will have negligible impact on Melbourne’s overall ability to meet forecast housing demand. This is one of the key arguments presented in the Minister’s letter and is fundamentally flawed. As discussed in more detail in Section 2.4, two of the three commercial corridors have extensive areas of Commercial 2 Zone (C2Z). This zone prohibits residential uses. The proposed changes therefore will not facilitate a significant increase in housingactivity.

The greatest potential for additional housing to be provided is within the Burwood/Camberwell Road Commercial Corridor which already allows for substantial areas to be developed to a maximum height ranging from 19 to 30 metres.

In contrast, Canterbury Road is largely within the C2Z, and the few Commercial 1Zone (C1Z) properties on the southern side of the corridor directly abut low-rise residential properties within the Neighbourhood Residential Zone 3. The Tooronga Road Corridor only contains a small number of properties within the Mixed Use Zone along Toorak Road. Importantly, the larger sites in this short section of Toorak Road have already been developed while the few remaining sites are small residential lots that can already be developed up to a height of 19 metres. Realistically, their size would not allow for any substantially greater building heights to significantly increase housing supply (unless these sites were consolidated which is a rare occurrence).

Based on this, the removal of mandatory height limits will not allow for additional new housing that would significantly improve metropolitan Melbourne’s ability to meet future housing demand.

Council considers that the provision of housing and the need for new housing need to be balanced with other considerations. The Minister should not ignore other considerations such as neighbourhood character and amenity impacts. Yet, it appears that Amendment C255 only aims to facilitate increased housing in a small

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area without due consideration of other equally important aspects. It also means that,Amendment C255 will not achieve the outcomes it seeks to achieve and can only be considered an onerous, disruptive and ineffective exercise for government and the local community.

This then raises the question why the Minister is singling out these existing controls for review? Is the Minister proposing to review controls of other municipalities ‘to enable development to optimise opportunities, particularly on larger redevelopment sites’ as stated in his letter? If the answer is ‘no’, the motivation for the proposed changes is highly questionable and there appears to be no basis for Amendment C255.

If the Minister is really concerned with increasing the capacity of activity centres to accommodate mixed uses including an increasing share of future housing needs, Council suggests that the Minister act upon the extensive areas of brownfield sites throughout metropolitan Melbourne that remain undeveloped. As recently submitted as part of Council’s response to the Plan Melbourne Refresh Discussion Paper, there are significant areas that have planning frameworks in place that would be able to make a substantial contribution to meeting metropolitan housing needs. Yet a substantial number of these areas remain vacant and undeveloped, and have so for years. The Minister’s efforts and those of his Department should be aimed at facilitating development to occur in these areas rather than wasting time and resources on an amendment that will have very little impact on Melbourne’s capacity to accommodate projected population growth and the bigger picture of meeting housing needs.

Since commencing in his role, the Minister for Planning has shown a clear reluctance to intervene in planning matters. In this context, the Minister’s decision to change planning controls that were introduced following due process in accordance with the requirements of the Planning and Environment Act 1987 seems even more peculiar. What is the importance of these changes in the larger context that require the Minister’s specific intervention? Council is unclear as to why this amendment is being proposed and Minister’s letter does not provide any new evidence to suggest that the previous decision on Amendment C108 was flawed or strategically unjustified.

3.3. Existing development capacity

The Q&A prepared for Amendment C255 states that ‘it has become more apparent since this approval (referring to Amendment C108), that some growth is needed in these commercial corridors to accommodate some of Boroondara’s future development needs given the mandatory height controls which apply across the municipality’s neighbourhood centres and residential areas’. However, it is unclear what has changed or has become more ‘apparent’ since the approval in April 2015 to necessitate the proposed changes proposed by Amendment C255. More importantly and disappointingly, no evidence of such need is presented in any of the exhibited information. This is of great concern to Council and raises serious questions regarding the validity and strategic rigour of Amendment C255.

Councils are expected to provide extensive documentation in support of proposed amendments. If additional information relating to Amendment C255 exists, it should have been made public to allow proper review and analysis of that information. If it doesn’t exist, then C255 has no strategic justification and should not be supported.

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In contrast to the lack of supporting analysis in Amendment C255, the EdgResearch analysis commissioned by Council in support of Amendment C108 as well as further capacity analysis by SGS Economics and Planning have demonstrated that the existing built form guidelines provide for substantial development opportunities to meet expected housing demand. Both analyses have been prepared with mandatory building height controls as their basis.

Council’s capacity analysis prepared by EdgResearch as part of Amendment C108clearly demonstrates that there is sufficient capacity to accommodate new development within the limits of the mandatory building heights.

In total, EdgResearch established that there is capacity for an additional 3002 dwellings within the three commercial corridors. The 31 Neighbourhood Centres have capacity to accommodate an additional 5378 dwellings. Overall, EdgResearch estimated an additional capacity of 19,328 dwellings within the three activity centres, three commercial corridors and 31 neighbourhood centres.

In addition to the EdgResearch analysis, SGS Economics and Planning also prepared a dwelling capacity analysis for all residential and commercial zones in Boroondara. This work was finalised in July 2015. SGS concluded that within the C1Z (which includes the three activity centres, 31 neighbourhood shopping centres, three commercial corridors and 18 local centres) there is capacity for an additional 21,170 dwellings. This analysis therefore confirmed the estimates prepared by EdgResearch as part of Amendment C108.

SGS are a highly reputable consultancy with extensive experience in this type of analysis. This analysis therefore cannot be ignored as it demonstrates that Council’s commercial areas are able to accommodate more intensive redevelopment withoutthe need for discretionary building heights.

3.4. Land use limitations of the Commercial 2 Zone

As already noted above, the Canterbury Road and Tooronga Road Commercial Corridors both contain extensive C2Z. As officers from the Department would be aware, the C2Z prohibits residential uses. These areas will not be able to ‘accommodate mixed uses including an increasing share of future housing needs’ as the Minister states in his letter. Therefore the proposed changes lack any strategic basis and will not achieve the outcomes sought.

Council is of the view that the introduction of discretionary heights in the C2Z to accommodate ‘an increasing share of future housing needs’ will result in policy confusion rather than certainty. The mandatory heights in these areas are reflective of their development potential given the land use limitations. Greater heights will generally only be achievable as part of larger scale, mixed use developments that contain a substantial residential component. There would therefore be a disconnect between the land use provisions of the zone and the built form guidelines contained in the relevant Design and Development Overlay (DDO16).

It should also be noted that Council has no intention to reduce the amount of C2Z given that there are very few areas left that allow for larger scale commercial and employment-generating uses to establish.

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Again, the fact that this issue does not appear to have been considered in developing Amendment C255 illustrates the lack of analysis and strategic rigour, and calls into doubt the validity of the amendment.

3.5. Inconsistency in the application of mandatory height controls

The proposal to remove mandatory overall building heights from Boroondara’s three commercial corridors is peculiar given the Minister’s decision to introduce mandatorybuilding heights in the Melbourne Central Business District (CBD), parts of Southbank and the Shrine of Remembrance. These mandatory controls were introduced in September 2015 under Amendment C262 to the Melbourne Planning Scheme on an interim basis for 12 months.

The CBD has the greatest built form density and height in metropolitan Melbourne. As the dominant activity centre in metropolitan Melbourne and the State, it arguably should play the strongest role in accommodating increased housing demand. It is Council’s view that the imposition of mandatory height controls in the CBD is less justified than the imposition of mandatory height controls in a suburban location such as Boroondara. Mandatory height controls in Boroondara’s commercial corridors serve a purpose to ensure that new development does not occur in a way which undermines the established and preferred neighbourhood character; it ensures a balance of development potential whilst considering local amenity. This is because development in Boroondara is of a density far less than the CBD and with far more sensitive interfaces.

This is supported through Planning Practice Note 59: The role of mandatory provisions in planning schemes. The use of mandatory height controls in a suburban setting such as Boroondara is far more critical because these controls ensure that development can be appropriately managed to suit lower suburban densities and valued character. This is compared with the application of mandatory height controls in the CBD which is already characterised by tall buildings and high density development.

Again, this raises questions regarding the validity and justification for Amendment C255 and whether it has been appropriately considered in the broader metropolitan context.

4. The introduction of discretionary height controls will create certainty

In his letter, the Minister states that discretionary building heights “will provide certainty to Council, residents and commercial land owners about where a larger scale of development can be supported”.

Council fundamentally disagrees with the Minister’s proposition and considers that the opposite in fact holds true. There are two reasons.

Firstly (and as previously noted above already), residential uses are prohibited in substantial areas in two of the three commercial corridors due to the extensive presence of the C2Z (Canterbury Road and Tooronga Road). The justification that discretionary controls will clearly identify these areas as areas for greater development intensity lacks any logic or basis. These areas will not be able to accommodate more intensive development given that residential uses are prohibited.

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The mandatory building heights as they currently exist in DDO16 are appropriate given the type of uses that are able to establish in the. As noted, Council has no intention to review the zoning of these areas given their economic importance to the City of Boroondara.

Secondly, within the Burwood/Camberwell Road Commercial Corridor the existing mandatory provisions already allow for substantial building heights with some areas allowing for up to 30 metres in height. Other areas in this corridor allow for developments between 17 and 22 metres.

Overall, the building heights in the three commercial corridors already clearly identify these areas as areas for greater levels of development and intensity - particularly in the context of the lower building heights in the surrounding residential areas. There is therefore no need for discretionary controls to demarcate these corridors as areas of change. Council’s current policy framework already clearly identifies the commercial areas as those areas that can absorb greater development activity as part of a balanced strategic framework. This balanced framework provides for more intensive development within activity centres, commercial corridors and neighbourhood centres while protecting the character and amenity of established residential areas. Discretionary controls are not needed to provide planning certainty.

On the contrary, the removal of mandatory building heights would result in far less certainty than is currently the case. History has shown that developers routinely use discretionary building heights as a loose guide in scoping their project and often seek developments far in excess of any such limits. This results in greater levels of opposition from residents, slower decision making-processes and increased costs to all parties as a result of VCAT appeals. What Amendment C255 seek to do will directly result in a less efficient planning process and lead to worse outcomes for all parties involved.

5. The proposed consultation process

Council is particularly disappointed with the timing of the Minister’s letter and his intention to consult with submitters to Amendment C108 during the Christmas, New Year and school holiday period.

The process the Minister is intending to follow lacks transparency and appears to be designed to limit public debate about a significant policy change. This is not acceptable given that the proposed changes have the potential to detrimentally impact on the character of our municipality and the amenity of many of our residents.

In addition, Council is concerned about the extent of consultation the Minister isproposing. In his letter, the Minister states that he will be consulting with parties who made a submission in respect of Amendment C108 although he fails to provide any details for this consultation process. In Council’s view, limiting consultation to submitters is inappropriate and raises concerns of procedural fairness and natural justice. Instead, the Minister should notify and seek the views of all directly affected and abutting owners and occupiers.

Given that Council exhibited and adopted mandatory building height controls, there may be a large number of directly affected and abutting owners/occupiers that did not lodge supporting submissions. Those residents would be severely disadvantaged

9



should they not be provided with an opportunity to comment on the changes proposed by Amendment C255.

Council has carried out extensive community consultation as part of a large number of strategic planning projects over the last decade. The community has consistently expressed their strong desire and preference for mandatory building heights to protect local character and amenity. This desire cannot be ignored. To not properly engage with the local community would present a significant failing on the Minister’s and the Department’s behalf and is something that Council cannot support.

6. Panel’s recommendations for additional guidelines

While the Panel recommended the application of discretionary building heights, it is important to note that it offered qualified support for the introduction of discretionary controls. Specifically, the Panel stated that development that seeks to exceed the building heights needs to demonstrate that the proposal provides an exemplary response to the site, its context, the stated policy objectives and other policy in the Boroondara Planning Scheme. There are important issues that need to be considered with regards to the Panel’s recommendations.

It is unclear how Amendment C255 responds to this recommendation, as the Minister’s letter only refers to changing the mandatory controls and does not mention any other changes to DDO16 as recommended by the Panel. This therefore raises the question whether DELWP officers have considered Panel’s recommendations for additional guidelines in preparing Amendment C255? If it has not been considered, then Council urges the Minister to develop appropriate guidelines to safeguard against inappropriate development within the three commercial corridors if he is of the mind of progressing Amendment C255. It is critical that Council be provided with an opportunity to have a meaningful role in drafting such guidelines.

Irrespective of its contribution, ultimately Council has reservations that such guidelines for developments that seek to exceed the preferred building heights will be adequate. Specifically, the use of the term ‘exemplary’ by the Panel is of concern as it is not defined and can be interpreted in many different ways. The Panel does not offer much guidance with regards to the detailed wording of such guidelines demonstrating that the development of guidelines is far more complex than the Panel was prepared to admit. Council is concerned that the use of this term will lead to further uncertainty and policy confusion - particularly if guidelines are not developed carefully and without consultation of Council. Given the lack of strategic thought or analysis that has gone into Amendment C255, Council has little faith in the Department’s ability to develop guidelines for such development that are clear and will lead to appropriate development outcomes.

7. Amendment documentation

Council notes that Amendment C255 proposes to introduce a new Schedule 17 to the Design and Development Overlay (DDO17) specifically for the three commercial corridors. Currently built form guidelines for the three commercial corridors are included in Schedule 16 (DDO16). Council assumes that this also means changes to DDO16 to remove the relevant tables and policy guidelines specific to the three commercial corridors. Yet, the exhibited documentation does not include a revised DDO16. This is a serious procedural error and Council requests that a revised

10



DDO16 be circulated to all relevant stakeholders and the submission deadlineextended to allow proper scrutiny of the amendment and what it proposes to do.

Council would like to express its disappointment with the lack of information and documentation provided as part of Amendment C255. The absence of key documentation and supporting information does not instill much confidence in Amendment C255 and in particular the DELWP’s ability to objectively consider the proposed changes. Too many errors have been made which leave the impression that the amendment has been prepared hastily and without following a transparentprocess and time for consideration. This alone should be reasons to take a step back and have an open conversation about Amendment C255, the motivation for it and how a balanced policy outcome can be achieved through an open dialogue rather than the unilateral approach currently being followed.

- END -

11



The Han Richard Wynne MPMinister for Planning

Cr Jim Parke

Mayor

City of Boroondara

Private Bag 1

CAMBERWELL VIC 3124

Dear Cr Parke

CITY OF BOROONDARA

RECEIVED

2 9 DEC 7015

CORPORATE INFORMATION

1 Spring Street

Melbourne, Victoria 3000

Telephone: +613 8392 6175DX21 0292

Ref: MBR028402

PROPOSED AMENDMENT C255 TO THE BOROONDARA PLANNING SCHEME

INTRODUCTION OF DISCRETIONARY HEIGHT CONTROLS TO BOROONDARA'S COMMERCIAL

CORRIDORS

I am writing to advise Boroondara City Council that I am considering preparing a planning scheme

amendment and exercising my power under sections 8 'and 20(4) of the Planning and Environment

Act 1987 (the Act) to introduce discretionary maximum overall building height controls to the three

commercial corridors within the City of Boroondara.

Boroondara Planning Scheme C108 introduced new mandatory height controls into 31

Neighbourhood Activity Centres and three commercial corridors via a new Design and Development

Overlay. The Panel appointed to consider outstanding'matters raised by submitters in relation to

Amendment C108 recommended that Council modify and adopt the amendment with discretionary

height controls for both neighbourhood activity centres and commercial corridors.

Despite Panel's recommendation, Council adopted Amendment C108 with mandatory height

controls in the Design and Development Overlay and sUbmitted the amendment for approval in June

2014. On 30 December 2014 Amendment C108 was approved under delegation. However the

decision to allow the amendment to be approved under delegation was based on incomplete

information provided from the Department of Environment, Land, Water and Planning, which failed

to adequately express the Panel's concerns with mandatory height controls.

Our city is facing some key challenges and requires' long-term strategic planning to guide its

development. In response to our projected population growth, changing economic conditions, and

the pressures of climate change, we need to think and act thoughtfully about how to grow

Melbourne sustainably, while enhancing its liveability. Next year Plan Melbourne will be refreshed to

provide a long term vision for how we address many of these issues.

The increased application of mandatory height controls across significant established residential

areas of Melbourne via the Neighbourhood Residential Zone has created a greater onus on activity

centres to accommodate mixed uses including an increasing share of future housing needs.

Consequently, I am considering introducing discretionary maximum overall building height controls

to Boroondara's commercial corridors of BurwoodjCamberweli Road, Canterbury Road and Tooronga

Road, while retaining mandatory height controls in the 31 neighbourhood centres.

Any personal information about you or a third party in your correspondence will be protected under the provisions .0/ the Privacy and Data Protection Act 2014. It will only be used or disclosed to appropriate Ministerial, StatutoryAuthority, or departmental staff in regard to the purpose for which it was provided, unless required or authorised by law.Enquiries about access to information about you held by the Department should be directed to the Privacy Coordinator,Department of Environment, Land, Water & Planning, PO Box 500, East Melbourne, Victoria 8002 ~

ORIAStateGovernment



I am not proposing to amend the mandatory maximum street wall heights or minimum upper storey

setbacks which currently apply in the commercial corridors. This approach will protect Boroondara's

neighbourhood centres in accordance with Initiative 4.2.2 of Plan Melbourne, while providing more

flexibility in the design of buildings within the larger and more diverse commercial corridors.

I have formed the view that discretionary building height controls may be required along

Boroondara's commercial corridors in order to enable development to optimise opportunities,

particularly on larger redevelopment sites. This approach will provide certainty to Council, residents

and commercial land owners about where a larger scale of development can be supported

throughout the municipality, in order to temper the rate of change in more sensitive locations.

In accordance with section 20(5) of the Act, I invite Council to express its views on this proposed

amendment to the Boroondara Planning Scheme in writing to me before 23 February 2016. I will also

be consulting with parties who made a submission in respect of Amendment Cl08 to determine their

views on the proposed change.

Please contact John Ginivan, Acting Executive Director, Statutory Planning and Heritage on telephone

(03) 9223 5307 if you have any queries or wish to discuss the proposed amendment further.

Yours sincerely

t6 /1 Z /2015

MBR028402 Page 2 ~ORIA

StateGovernment



BOROONDARA PLANNING SCHEME

SCHEDULE 16 17 TO THE DESIGN AND DEVELOPMENT OVERLAY

Shown on the planning scheme map as DDO16DDO17.

NEIGHBOURHOOD CENTRES AND COMMERCIAL CORRIDORS

1.0 Design objectives

To ensure the height and setbacks of development maintain and enhance:

the established streetscape and traditional, low-rise, high street character of neighbourhood centres.

the established streetscape and commercial character of the commercial corridors.

To achieve innovative, high quality architectural design that makes efficient use of land whilst enhancing the appearance and strengthening the identity of the neighbourhood centres and commercial corridors.

To ensure appropriate development that is complementary to the existing neighbourhood character and has regard to adjoining residential amenity.

To ensure development respects and enhances identified heritage buildings and precincts.

2.0 Buildings and works

Permit requirements

A permit is required to construct a building or construct or carry out works. This does not apply to:

The installation of an automatic teller machine.

An alteration to an existing building facade provided:

The alteration does not include the installation of an external roller shutter.

At least 80 per cent of the building facade at ground floor level is maintained as an entry or window with clear glazing.

An awning that projects over a road if it is authorised by the relevant public land manager.

Building and Street Wall Height

A permit cannot be granted to exceed the mandatory maximum street wall height. A permit may be granted to exceed and the mandatory maximum overall building height in the relevant Table and Map at Subclause 7.0 of this Schedule.

For the purposes of this requirement:

The street wall is the front façade of a building along all street frontages.

A frontage onto public open space or public car park is treated as a frontage onto a street and is subject to the maximum streetwall height.

The overall vertical height is measured from the natural ground level to the peak of the roof or parapet.

05/11/2015C195(Part 1)

09/04/2015C108

09/04/2015C108

KEYxxxx = Newxxxx = DeletedNote: content added or deleted from DDO16 by Amendment C255.

DESIGN AND DEVELOPMENT OVERLAY - SCHEDULE 16 PAGE 1 OF 4




A permit cannot be granted to exceed the maximum overall building height set out in the relevant Table and Map at Subclause 7.0 of this Schedule except:

To accommodate roof top services that are designed as architectural roof top features or hidden from view from any adjoining public space. Roof top services includes but is not limited to plant rooms, air conditioning, lift overruns, roof top gardens, decks and communal outdoor spaces and their ancillary facilities.

Where the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the maximum overall building height may be exceeded by one (1) metre.

Where an existing building on the subject land already exceeds the mandatory maximum height allowed under this Schedule. In this event, a permit can be granted to construct a building or carry out works to the same height as the existing building.

An application to reduce the street wall height in the relevant Table and Map atSubclause 7.0 of this Schedule must demonstrate how the design objectives of this schedule will be met.

Setbacks

Primary Street Frontage

Where a preferred minimum upper storey setback is shown in the relevant Table at Subclause 7.0 of this Schedule, the building must be setback a minimum of 1.6 metres from the primary street frontage measured from the face of the building. The setback may be utilised for the purpose of the balcony.

A permit cannot be granted to reduce this requirement, except for architectural features that enhance the façade articulation and create visual interest.

Development up to the street wall height should be built on or within 200mm of the site boundary along all street frontages. This may be varied, if the setback is:

designed as part of the public domain; and

fully accessible to the public.

For the purpose of this requirement, a frontage onto a public open space or public car park is treated as a frontage onto a street.

Development above the street wall height should comply with the preferred minimum upper storey setbacks in the relevant Table at Subclause 7.0 of this Schedule. The setback for development above the street wall height is measured from the face of the building along the primary street frontage.

Side Street Frontage

Where a site is on a corner, development above the street wall height should provide the following setbacks along the side street frontage:

1.6 metres up to a building height of 14.5 metres; and

3 metres for building height in excess of 14.5 metres.

The setback for development above the street wall height is measured from the face of the building along the side street frontage.

An application to reduce the preferred upper storey setbacks must demonstrate how the design objectives of this Schedule and local planning policy at Clause 22.10 have been met.





From Residential Zones

Where a rear boundary is shared with a property in a Residential Zone, any development must be set back:

a minimum of three (3) metres; and

in accordance with the provisions of Clause 55.04-1 of the Planning Scheme thereafter.

A permit cannot be granted to vary this requirement except where development:

applies to alterations and/or additions to an existing building; or

applies to a basement; or

abuts a non-residential use.

Where a service lane/laneway separates a rear boundary from a property in a Residential Zone, development should apply ResCode setbacks in accordance with the provisions of Clause 55.04-1 of the planning scheme measured from the rear property boundary.

Where a side boundary is shared with a property in Residential Zone, a development should apply ResCode setbacks in accordance with the provisions of Clause 55.04-1 of the planning scheme measured from the shared side property boundary.

An application to reduce the rear or side boundary setback requirements must demonstrate how the design objectives of this schedule and local planning policy at Clause 22.10 have been met.

Public Acquisition Overlay

Where a property boundary abuts/adjoins a Public Acquisition Overlay (PAO), buildings and works must be set back in accordance with the existing Schedule to the PAO.

The responsible authority will only consider an application to encroach within a PAO where written consent can be provided from the acquiring authority for the land confirming that an encroachment into the PAO is appropriate.

3.0 Subdivision

A permit is required to subdivide land.

4.0 Decision Guidelines

Before deciding an application, the responsible authority must consider the following, as appropriate:

Whether the proposed development achieves the design objectives and requirements of this schedule and local planning policy at Clause 22.10.

Whether the design of the development can accommodate an integrated mix of uses including retail, office/commercial and residential.

Whether the proposed development is appropriately recessed to reduce potential amenity impacts on adjoining residential properties.

Whether the proposed development is appropriately recessed to reduce visual bulk on service lanes/laneways.

Whether the combination of heights, setbacks and design treatment of new buildings is sympathetic to the heritage place or adjoining the site.

09/04/2015C108

26/07/2012C107





Whether the design of the proposed development supports the provisions of this planning scheme and in particular:

Clause 22.05 Heritage Policy.

Clause 45.01 Public Acquisition Overlay.

Clause 55 objectives and standards.

5.0 Transitional arrangements

The requirements of this overlay do not apply to any planning permit application received by the responsible authority before the approval date of the amendment that introduced this schedule to Clause 43.02 into the Planning Scheme. The mandatory requirements of this overlay do not apply to any planning permit application received by the responsible authority before 9 April 2015. The requirements of Clause 43.02 as in force immediately before the said approved date continue to apply.

6.0 Reference Document

Neighbourhood Centres and Commercial Corridors Guidelines, City of Boroondara, 201409/04/2015C108

09/04/2015C108




ordinary council meeting - 22 february 2016 - item 13

Documents