Rigby Cooke Lawyers successfully represents Melbourne Health and the Department of Health and Human Services in VCAT application to reduce height of North Melbourne apartment tower.
Earlier this month, the Victorian Civil and Administrative Tribunal ordered a developer to reduce the height of its apartment building to avoid interrupting helicopter access to the Royal Melbourne Hospital helipad.
Although the developer has not yet started construction, approximately two-thirds of the apartments in the building have been sold.
The developer, Obiter Investments Pty Ltd, obtained a planning permit from Melbourne City Council in August 2015 to develop land on Flemington Road North Melbourne with a 16 storey apartment tower. The development site is across the road (approximately 170 metres away) from the Hospital’s helipad which is used by Air Ambulance Victoria to deliver time-critical patients to the Hospital’s Emergency Department.
Despite the proximity of the development site to the helipad, Council failed to notify Melbourne Health (the entity which operates the Hospital) of the permit application so neither Melbourne Health, nor the Department of Health and Human Services, knew about the development before the permit was issued. Had they been notified, they would have had the opportunity to object to the proposal and seek permit conditions limiting the height of the building to the height of the helipad. The Tribunal found that, in addition to failing to notify Melbourne Health of the application, Council made a material mistake by failing to consider the potential impact of the building on the helipad.
Once Melbourne Health and the Department became aware of the development, they applied to the Tribunal to amend the permit to reduce the height of the building. Rigby Cooke Lawyers successfully represented the applicants (Melbourne Health and the Department) in a long and complex case which ran for more than 12 days across 4 months. The applicants led evidence from helicopter pilots for Air Ambulance Victoria, Emergency Department doctors, helipad design experts and acoustic and town planning experts. The developer led evidence from experts in architecture, acoustics and valuation.
In addition to reducing the height of the building, the Tribunal has required noise attenuation measures to be implemented in the construction of the building and a Crane Construction Management Plan (approved by the Department) to minimise the impact of construction on the “safe and unfettered operation of the helipad”.
Under the Planning and Environment Act 1987, the developer can claim compensation from Council but is only entitled to compensation for ‘wasted expenditure’. At the hearing, the developer argued that any compensation recoverable under the Act would be significantly less than the actual losses it would suffer if the permit was amended.
In February 2016, Design and Development Overlays were introduced to protect the flight paths to all Victoria’s major hospital heliports. Now that the DDOs are in place, the risk of a problem like this arising again in future is greatly reduced. Nevertheless, the case acts as an important warning to all developers to ensure their proposed developments will not interfere with the safe and unfettered operation of emergency health care facilities.
For more information about the height controls around hospital heliports, please contact Rigby Cooke Lawyers’ Planning Environment Team at firstname.lastname@example.org
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