News / Planning

Let there be light: permit refused on human rights grounds

Council knocks back seven-storey building because it would cover house next door in shade

Elisa Hill, front left, with other objectors in front of the house at 22 Dods Street.

Mark Phillips

A RARELY-used human rights clause has been invoked to block planning permission for a seven-storey apartment building in Dods Street in Brunswick.

Merri-bek Council has refused to grant a planning permit for the development at 20 Dods Street after dozens of objections to it, but it was the impact on the family that lives next door to the project that was given most weight.

Councillors unanimously voted against the development because of the impact shadow from the building would have on the human rights of an intellectually disabled teenager who lives next door.

The decision at the council’s Planning and Related Matters committee meeting on Wednesday night was greeted with applause from the public gallery, but local residents’ victory may be shortlived if the developer appeals to the Victorian Civil and Administrative Tribunal within the next 60 days.

The committee was considering an application by Toorak-based Bespoke Development Group Pty Ltd for a seven-storey building housing 11 apartments on the site at 20 Dods Street which is currently occupied by a rundown single storey early-20th century weatherboard house.

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The street is within the Brunswick Activity Centre which encourages higher density and mixed use developments with a discretionary height limit of 20 metres.

Council officers recommended a planning permit be granted despite the building being 24.6 metres in height. The recommendation put to the committee meeting said the project was not an overdevelopment of the site, as some objectors claimed, and was consistent with the planning scheme for the area.

Thirty-five people objected to the project because of its height, its impact on on-street car parking, and the impact on neighbours.

Council staff said any reduced amenity for neighbours was minimal compared to the benefits to be gained from the addition of more housing in Brunswick.

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But it was the testimony of Elisa Hill, who lives next door to the development site at 22 Dods Street, that had a decisive impact on convincing councillors to reject the application.

Ms Hill described how her family relied on sunlight into their small backyard to help manage their 18-year-old son Jai’s profound autism and intellectual disability.

The family has lived in the house since 2007 and renovated it specifically to cater for Jai’s condition.

Jai is unable to feed himself or go to the toilet without help and rarely leaves the house, so the backyard is his sole source of recreation. But the apartment building next door would reduce sunlight onto their property from five hours to just two hours a day in the early afternoon, Ms Hill said.

“This proposal will drastically reduce quality of life for Jai who’s a valued and vulnerable member of our community, and we are happy for development to proceed in a way that doesn’t destroy Jai’s life,” she said.         

“This is a case of money versus people and a blatant disregard of human rights and is discriminatory against people with disability.

“Unfortunately, those of you who think that human rights can simply be dismissed in a planning setting are wrong … A new development needs to be equitable and just, not just green and affordable.”

Site of the controversial Dods Street development

Planning consultant Vaughan Connor, who appeared at the council meeting on behalf of the developer, said the project “responds well” to the planning scheme and was a high quality design.

He said the developer had met with Ms Hill’s family and had proposed some changes to reduce the impact on them.

“We sympathise with their circumstances, but we welcome the opportunity to work with them to minimise the impact, not alleviate all the impacts, but minimise the impact as much as possible within the decision-making framework of the planning scheme,” he said.

The resolution not to grant a planning permit was moved by Councillor Sue Bolton who said the project breached its neighbours’ rights to privacy and to protection of families. She said a human rights clause was included in every planning permit decision that came before the council and should not be tokenistic.

“I would think that a situation like this of this particular family needs to be properly looked at in the context of the human rights charter and I think that is a ground for rejection of this application on the basis of the denial of sunlight to the private secluded space in the backyard for their son,” she said.

If there is an appeal, Merri-bek’s refusal of the permit on human rights grounds is likely to be a test case at VCAT. Previous attempts by local councils to rely on human rights to deny planning applications have been overturned at VCAT.

Cr James Conlan said the council had a duty to run a human rights test case through the courts.

“Obviously there is no guarantee that we will win or lose, but I think this is a worthwhile case testing to see if our planning scheme is able to at least recognise the rights of people in these kinds of extreme circumstances,” he said.

“If council does lose I think it adds further weight to how broken the planning system is if it’s fundamentally incapable of responding to these types of extreme human rights issues.”

Bespoke Development Group was contacted but did not respond to a request for comment about whether it would appeal against the council decision.

The building at 179 Albion Street was first occupied in the 1850s.

Demolition of historic house to go ahead

IN a separate decision at the planning meeting on Wednesday night, Merri-bek Council has allowed a developer to demolish one of the oldest remaining residential buildings in Brunswick.

Developer Caldy Hill Investments Pty Ltd will rebuild a replica of the 1850s bluestone cottage at 179 Albion Street along with two new double-storey town houses behind it.

Councillors accepted advice that the building was structurally unsound and could not be repaired to make it safe for occupation.

The building, alongside Warr Park, is currently vacant. The developer will completely rebuild it in the same style as it was originally, including with a slate roof to replace the existing corrugated iron one.

A spokesman for the developer said demolition and rebuilding was the only option available.

“There’s a lack of guarantee that remedial works will stand the test of time, but we believe that by rebuilding this building, it will withstand the test of time because the foundations and works will be to the current standard and people will be able to enjoy this building for a long time to come,” he said.

The application was reluctantly supported by the president of the Brunswick Community History Group and a former Brunswick Mayor, Elisabeth Jackson who said it was disappointing to lose one of the area’s oldest houses but at least it would be rebuilt in the same style.

“It’s a pity the building didn’t have individual heritage protection and only a heritage overlay that doesn’t really count for much, and also that it was allowed to deteriorate to the state where it can’t be saved at all,” she said.

“It seems to have happened in fairly recent times and it’s a pity there’s no provision against demolition by neglect which is what has happened in this case.”

The developer denied the building had been neglected.