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Too high or not too high, that is the question

BEST man on the ground at the week-long Victorian Civil and Administrative Tribunal (VCAT) hearing into an application for a 42-unit, four-storey residential hotel at Inverloch, was the developer’s legal counsel, Dominic Scally, a principal at...

by Sentinel-Times

Published February 10, 2023

Too high or not too high, that is the question — Opponents of the proposed four-storey residential hotel at Inverloch have cried ‘foul’ over the use of wide-angle or ‘fisheye’ photos which they allege have skewed the likely impact of the foreshore development.

Mr Scally presented his client’s case clearly and addressed the other side’s arguments with the precision of a trial lawyer.

And he injected notes of humour and sarcasm in equal measure, at one stage accusing his opposite number, Barnaby McIlrath, for the South Gippsland Conservation Society, of “chasing another rabbit down a hole” over whether or not the venue would have a liquor licence.

“No application has been sought to sell liquor. It’s not relevant to the proposal,” he said.

It didn’t hurt that Mr Scally praised the South Gippsland Sentinel-Times during proceedings for “getting it right” when reporting his own claims that the campaign against the project by the conservation group had been “an appalling disgrace”.

But it was the calm, careful presentation by the Responsible Authority’s lawyer, Maria Marshall, a partner at Maddocks, especially her cross-examination of the developer’s expert witness, Tim McBride-Burgess, that may have won the day.

Only time will tell.

Representing the Bass Coast Shire Council, Ms Marshall focussed her attention on the key point of the shire’s case, that the proposed foreshore building is simply too high at 14.2 metres, 4.7 metres above the maximum height in the shire’s Design and Development Overlay Schedule 10 (DDO10), uniquely applying to the old Inverloch Marine site.

“Is it important to have regard to the DD010 as it only relates to a specific site? Do you think you should have had regard to that?” Ms Marshall asked the Forte Group’s planning expert.

Mr McBride-Burgess said the DDO10 was relevant but so was the fact that in surrounding residential areas (GRZ), 11 metres had been allowed.

He said the earlier planning panel did not have this new project in front of them when they recommended a 9.5 metre height limit, and he said it was reasonable for a key development site to deliver a building that was at least the height achievable in nearby residential areas.

“But I put it to you that you can’t absolutely say that if you can go higher in a residential area, that it would automatically carry over into a Mixed Use Zone or a Commercial Zone, can you?” Ms Marshall said.

“No,” said Mr McBride-Burgess, noting however that the proposed building was below the tree height and its impact was reduced by the design of the “nautical” design of building and setbacks.

Ms Marshall used case law to argue that “special circumstances” needed to exist if the height limit of 9.5 metres was to be exceeded and Mr McBride-Burgess had to agree with the shire’s advocate that no special “social utility” had been demonstrated or that there was anything “atypically excellent” about the building’s architecture or urban design.

At the time the C124 amendment to the planning scheme was introduced, the independent planning said: “The Panel accepts that the site is a key site in the town centre and that any development of it should be carefully managed given its abuttal to the foreshore reserve. The application of a mandatory 9.5 metre height limit is considered appropriate at this location.”

The only chink in the shire’s height argument is that the height limit would only be considered “explicitly mandatory” if the planning schedule carried the words: “A permit cannot be granted to construct a building or construct or carry out works which are in accordance with any requirements in a schedule to this overlay.”

It doesn’t.

So, while the shire mounted a strong argument that the residential hotel be limited to three storeys of 9.5 metres, it remains open to the VCAT panel to agree with Mr Scally and the Forte Group that it has been designed in the context of its foreshore location and within the scope of the shire’s design controls and the realm of its planning scheme.

The VCAT panel, headed by Senior Member Laurie Hewet, will visit the site this coming week ahead of handing down its decision which the local conservation society argues will have far-reaching implications for future development in the town, not to mention dominating The Glade community park, the CBD and the foreshore.