The Victorian Civil and Administrative Tribunal (VCAT) has recently considered how to assess the appropriate provision of daylight to apartments under a newly introduced local planning policy in several Melbourne council planning schemes relating to Environmentally Sustainable Development (ESD).  In the recent decision in G3 Projects Pty Ltd v Yarra CC (Red Dot) [2016] VCAT 373 (9 March 2016) (G3 case) VCAT set aside Yarra City Council's refusal to grant a permit for a 10 storey building in Richmond, a refusal which was largely based on Council's concern that inadequate daylight was provided to certain apartments.

The G3 case demonstrates how to determine "best practice" under the new ESD policy, particularly in relation to assessing access to daylight in high density residential development.  The issue is timely given the Minister for Planning is currently preparing a "Better Apartments1" guide due for release mid-year following the recent consultation on the Better Apartments Discussion Paper.  The Public Engagement Report that sets out the results of the community consultation carried out on the discussion paper found that the most important issue identified by respondents to a community survey was good access to daylight.  

The G3 decision is also a reminder that all policy aspirations need to always be weighed by decision-makers to achieve an overall 'net community benefit and sustainable development'. 

Environmentally Sustainable Development Policy  

The ESD policy was included in the Local Planning Policy Framework of 62 local Councils by  various Amendmens to their Planning Schemes in November 2015 through a combined cross-council initiative designed to provide guidance on best practice in achieving environmentally sustainable development. The policy sets out a number of elements that are part of achieving ESD relating to the sustainability of buildings. Particularly relevant to the case was the issue of daylight, which falls under the Indoor Environment Quality element of ESD. 

"Best Practice"

The overall objective of ESD policy is that "development should achieve best practice in environmentally sustainable development from the design stage through to construction and operation." When assessing a proposal against this objective it is important to understand what constitutes "best practice" for each element of ESD. VCAT had to determine "best practice" in relation to daylight in the G3 case as there is no specific definition in the policy. VCAT found that the Built Environment Sustainability Scorecard (BESS) to be an appropriate tool to assess "best practice" as this is referred to as an example in the policy.

The permit applicant had argued the modelling of a lighting engineer Dr Phillip Greenup should be used as a benchmark for daylight. Previous cases3 had used Dr Greenup's model to analyse internal amenity in the absence of any planning scheme measure beyond the Building Code of Australia and Clause 55. However, given the new ESD policy which refers to specific tools that measure "best practice" (such as BESS), alternative forms of modelling that were not referred to in the scheme were not considered by VCAT to be appropriate. 

In addition, VCAT highlighted that assessment against the ESD policy is not a matter of achieving a "minimum ESD outcome" or complying with a minimum criteria of design. The objective is for "best practice", so when it is possible for a proposal to achieve or come close to "best practice" then this should be done. 

Balancing other issues

The G3 case has also demonstrated that the objective to achieve best practice in ESD is just one issue which needs to be balanced when assessing a planning proposal, in line with the integrated decision making required under the State Planning Policy Framework at Clause 10.04 to achieve "net community benefit and sustainable development." 

This meant that although VCAT found that there were some dwellings that did not meet the BESS standard for daylight which therefore affected the ability of the proposal to meet ESD "best practice" objectives for daylight, the overall proposal was acceptable. The Tribunal pointed out that:

"a ‘numbers game’ can be played in order to meet or improve on a specific ESD benchmark, but not necessarily achieve a better, balanced amenity or design outcome for the project. We think care needs to be taken assessing a single best practice ESD test does not belittle or overtake the many other considerations in assessing if a proposal represents an overall acceptable planning outcome"

Better Apartments in the future 

Later this year the Victorian State Government will release new design standards for apartments under its Better Apartments project. Community responses have already highlighted the need for daylight in apartments to be addressed, so it is expected that the new standards or guidelines will provide more guidance on "best practice" relating to daylight issues in apartments. 

The G3 case therefore provides a timely reminder for the Minister for Planning and Councils that decision-makers need to weigh up all policy aspirations and guidelines in a balancing exercise when assessing new developments so to achieve a 'net community benefit and sustainable development'.