The VCAT order

Updated post with summary of decision

• Walls higher due mainly to removal of ground “batter”
• Not much change to the actual levels of walls (i.e. their true height)
• No detrimental impact to private or public realm
• Adjoining property owner withdraws objection

Thanks to the Alpine council’s planning department I have obtained a copy of the recent VCAT ruling   in relation to the (unsuccessful) appeal against the wall heights of the new Woolworths supermarket in Bright. It’s a complicated read but it appears to me VCAT simply found  that Woolworths had “no case to answer”.  

Here is my summary of the decision:

1. The Alpine council applied for a declaration that the wall heights were not in accordance with the endorsed plans. They asked VCAT to order remedial building works to lower the north facing wall and roof of the amenities wing of the supermarket. They were joined by Save Bright members Bernece Delaney, Nick Malkin & Lee Rosser (although Rosser did not appear) and the owners of the affected property @ 12 Riverside Avenue, Mr & Mrs O’Shea.

2. Woolworths, via its development arm Fabcot, applied for VCAT to review the council’s failure to decide on Fabcot’s secondary consent request to amend the plans, made by Fabcot in November 2009 after the discrepancies in the wall heights were confirmed. The Council advised Fabcot on 25 November 2009 that it refused to consider that application, even though the law requires they must.

3. Subsequently VCAT refused to consider the council’s application for a declaration and, instead, it dealt only with the secondary consent application made by Fabcot.

20 There is little benefit in merely granting the declarations sought (by the council). It does not resolve the matters remaining in dispute. The declarations, if granted, would not require Fabcot to take any action. The Council stated it would commence enforcement action if we granted the declarations. Mr Holdsworth (on behalf of the council) asked us to order remedial building works to lower the north facing wall and roof of the amenities wing of the supermarket. We have no power to make such orders. The main application in the proceeding is the secondary consent.

21 As a result of our decision on the secondary consent application, no declarations are granted

4. According to surveyors employed by both the council and Fabcot, some of the walls were higher than the original endorsed plans, HOWEVER, this was mainly due to the walls being built on lower ground after the removal of “batter” (ground fill).

5. Overall though, there was not much change to the actual levels of the walls (i.e. their true height above sea level), apart from the mid-section of the northern (rear) wall, which potentially affected Mr & Mrs O’Shea’s amenity and which was at a level approx 1.3 metres higher than the original plans according to the “north elevation” but actually at a lower level shown in the “C-C section” of the endorsed plans.

27 The key findings are:
(a) The level of the top of the north facing wall of the amenities wing as-built is consistent with the endorsed plans section C-C but approximately 1300 mm higher than the endorsed plans north elevation.

(b) The level of the top of the west facing wall of the amenities wing as built is approximately 20 mm lower than shown on the endorsed plans section B-B.

(c) The level of the top of the north facing wall (at its eastern end) as built at the rear of 12 Riverside Avenue is approximately 480 mm lower than shown on the endorsed plans section C-C.

(d) The three walls (in (a), (b) and (c) above) are up to approximately 2300 mm higher than the endorsed plans, mainly as a result of the ground level being lowered by the deletion of earth batters.

6. After Fabcot offered to landscape the strip of land between the wall and the rear of the O’Shea’s property and transfer ownership to Mr & Mrs O’Shea they withdrew their objection – meaning there was no further issue to consider on the impact on private property.

47 The north facing wall looms larger from 12 Riverside Avenue, largely because the batter is removed and the ground level is consequently lower. As well, the correct shadow diagrams show a larger part of the rear yard affected by shadow. The owners of 12 Riverside Avenue now do not oppose the Application.

48 The owners of 14 Riverside Avenue are not parties to the Application.

49 Fabcot has agreed to landscape the narrow strips of land between the north and west facing walls and the existing boundaries of 12 and 14 Riverside Avenue and transfer those strips to the adjoining owners. It is both unnecessary and undesirable that those works be included as part of the permit.

50 On private realm grounds, there is therefore no reason to refuse the Application.

7. As for the impact on the public, VCAT visited the site and determined that the minor discrepancies had no major impact from the public viewing points.

52 The top of the north facing walls are not built to a higher level than as shown on the endorsed plans section C-C. Hence, the impact cannot be said to be any different. Alternatively, we have previously found that the top of the north facing wall of the amenities wing is built to a level approximately 1300 mm higher than as shown on the endorsed plans north elevation. However, even under this alternative, the level does not have a significant impact from the specified public realm, having regard to existing street vegetation. Even if there was power to require that wall (and roof) to be modified and lowered, there is no overall benefit because the higher part of the roof behind (the rooftop plant room and condensor) would remain the same and appear more prominent.

8. As for the incorrect scaling of the adjoining Star Hotel, VCAT found that it was shown on the endorsed plans as approx 1.1 metres higher than its actual height but that this was of no consequence.

East elevation issue
55 The incorrect and higher depiction of the existing Star Hotel on the endorsed plans, and the resulting greater apparent step up to the correctly built level of the supermarket south wall parapet, is no reason to refuse to endorse the VCAT plans.

56 The greater height of the wall is no reason to refuse to endorse the VCAT plans when the level of the top of that wall is built in accordance with the endorsed plans.

9. There is no doubt that the council copped a beating - as did the respondent objectors from Save Bright – and that instead of going to VCAT they perhaps should have worked to resolve the discrepancies that clearly came about through no fault of Woolworths.

Conclusion

60 The amended plans originally submitted with the Application rectify many of the errors and inconsistencies in the endorsed plans. The VCAT plans rectify more errors and inconsistencies. The Council and Fabcot continue to disagree about some important and not so important matters.

61 We have decided the best way forward is to approve the VCAT plans. We are satisfied that no significant affect on the amenity of the area will result. That will resolve the major differences concerning wall heights.

Amen.

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