A Planning & Environment Court Appeal was lodged byThe Planning Place against Council’s refusal of an application involving twonew Dwelling Houses, of 3 storeys (plus basement) in height, in Rupert St,Windsor. Council refused the application primarily on the basis ofthe height of the Dwellings not being consistent with the bulk and scale ofother dwellings within the street and local area.
The Court granted the approval, with Judge Kefford,stating that the word ‘consistent’ allows for some elasticity, with therelevant Performance Outcomes of the Planning Scheme relating to buildingheight not calling for a purely numerical or quantitative approach. Judge Kefford stated that there was no prevailing heightof buildings in the immediate vicinity of the site. The dwellings were considered to be consistent andcompatible with a number of nearby and adjoining dwellings in terms ofthe height, but also in terms of the existing setting and context. Features of the proposed design of the dwellings also contributed to theconsistency of the building height.
The favourable judgement demonstrates that Council’sdogmatic and rigid approach to building height is not the intent of thePlanning Scheme, and that building design, and surrounding context is ofsignificant importance. Council does not always appropriately follow theprovisions of their Planning Scheme, and hence taking the matter to Court is theappropriate response to obtain a favourable outcome. It is important to note that not all appeals proceed totrial, and in the majority of occasions, an appeal can be successfully resolvedwith negotiations prior to a trial being necessary.