City planning laws are out of touch with how people now want to liveThe planned development led by architect Jeremy McLeod, left, was knocked back because it didn't include private car parks. Colleague James Legge is planning (right) a second car-less development. Photo: Craig Sillitoe

City planning laws are out of touch with how people now want to live

In October, Nightingale took a dive. The Melbourne apartment development, described as “environmentally, socially and financially sustainable”, was ruled out of order by a state planning tribunal because it didn’t have private car parks.

Never mind that the owners didn’t want car parks. Or that the site for the five-storey building, in Brunswick, North Melbourne, lay alongside a railway line and a bike track in the inner-northern suburb. Never mind that the local Moreland Council gave the scheme its blessing.

It didn’t fit the rules, said Russell Byard, the senior member of the Victorian Civil and Administrative Tribunal who presided over the case. While smaller – three- or four-unit dwellings – could be built with zero parking, a 20-apartment building couldn’t.

“I accept that there are people who do not and will not require private cars and therefore parking,” Byard ruled. “However, they can be provided for by reductions in standard car-parking provisions in developments that also make some contribution to parking demand that is generated. It is not necessary to have parking-free developments to accommodate them nor, as far I can see, does current policy deem it desirable.”

Sue Holliday a former director general of planning in NSW says often the planning regime is held back by politics. Photo: Fiona Morris Sue Holliday a former director general of planning in NSW says often the planning regime is held back by politics. Photo: Fiona Morris

He set aside the town-planning permit granted to the development. Nightingale had to start again.

“To say we were disappointed would be an understatement,” architect Jeremy McLeod says. “We were shocked that in the context of the broader issues facing our society and the clear goals in which Nightingale was undertaken, the single issue of one segment of the planning scheme became the deciding factor for the future of 32 people.”

Australia’s housing boom is changing the way we live, but the laws are not keeping up. Increasingly inner-city dwellers are happy to live without car parking, but planning laws are stuck in the days when everyone wanted a car – and a place to put it. In other instances, regulation relating to building materials are failing to keep up with new products and technologies. And, most egregious of all, laws governing the way buildings are run are falling behind the way people like to live and make money – for example, renting out a room on Airbnb. A gap is widening between the way people want to live and the way governments and local government provision for them.


McLeod’s Nightingale was designed for a market niche of owner-occupier residents who are willing to forgo private car use and share common facilities such as a rooftop laundry. It’s just one of many different housing types that will evolve as the wide brown land of suburban sprawl starts building up, with a greater density in established urban areas. It also seeks to change the way housing is financed and developed. Under the handful of other Nightingale projects planned across Melbourne, architects take the lead, putting in equity with a handful of other investors who accept a return of between 15 and 20 per cent and sell directly to a database of buyers built up by word of mouth, saving on marketing, display suite and estate agent costs.

The apartments in the 8.8-star energy-rated building, which will cost about $400,000 for a one-bedroom unit and $645,000 for a two-bedroom, are intended to be far more affordable in the long term as the energy efficiency of the building, with good design and triple-glazed windows, will make it cheaper to run.

It markets to people willing to accept a potentially lower resale price, in keeping with the project’s focus on affordability. Owners of Nightingale apartments are bound by a caveat that limits their resale price to the growth of land prices in the area, rather than taking whatever they can get on the open market. It’s not a housing offering that will appeal to all, but one response out of many to the changing patterns of Australian cities.

Twenty years ago, two-thirds of all new homes approved by local authorities were standalone houses and one-third were units, townhouses or apartments. Now the split is 50-50. A population expected to rise by one-third to 30.5 million between 2011 and 2031 demands different ways of doing things. The changing demographic got a nod when Prime Minister Malcolm Turnbull appointed Jamie Briggs as minister for cities, an event with an unhappy ending. Policymakers hope a replacement will be announced soon; an acknowledgment that planning needs to adapt to the times.

It’s not just a matter of disappointed developers and pricier homes. The planning environment is crucial in the global competition cities are now waging with each other.

“It slows that potential for development and change,” says NSW government architect Peter Poulet. “It means global capital and global talent goes or stays elsewhere. What we need is to be on the next wave of innovation and ideas.”


McLeod says he has sympathy for policymakers and bureaucrats at a time of great change.

“Cities are complex organisms,” he says. “To try to understand how they work historically, how they work now and how they’re evolving into the future, it’s almost an impossible task.”

Sue Holliday, the NSW director-general of planning between 1997 and 2003, agrees.

“It’s always a problem to adapt your regulations or laws to suit changes in society when you’re not sure how long those changes are going to survive,” she says.

Sometimes, however, the planning regime is held back by politics.

Holliday, now professor of planning practice at the University of New South Wales, recalls how, in 1993, she introduced a provision into a regeneration plan for the inner-city suburbs Ultimo and Pyrmont that new residential developments within 400 metres of a planned light-rail line would not have to include private car parking. The idea was to promote public transport use over private car use, but it was vehemently opposed.

“There was an outcry from the very few residents who lived in that area who said ‘That means people are going to park on the street!'” Holliday says.

The department changed the policy after the intervention of then lord mayor Frank Sartor, who sided with the residents.

And on this score, political leadership is crucial, says architect James Legge, who is leading the second Melbourne Nightingale project – in Fairfield, a few kilometres east of Brunswick.

“Councillors have to manage the expectations of their constituents,” Legge says. “If the Melbourne population is increasing at the rate it is increasing, then people need to be housed. Something has to change.”


The laws lag in other ways. Last November, the LaCrosse apartment tower in Melbourne’s Docklands caught fire as a result of having non fire-compliant cladding attached to wall panels on the side of the building. A cigarette butt on an eighth-floor balcony started a fire that shot up 13 storeys in as little as 10 minutes. No one was hurt and the state regulator hasn’t yet completed its investigation into how the wrong material was installed on that part of the building.

The fire’s aftermath has shown how ill-suited the regulations, designed with small, three- or four-unit strata developments in mind, are for large buildings with hundreds of apartments. In October, the City of Melbourne ordered LaCrosse’s 300-plus unit owners to pay the cost – about $30,000 each – of making the building fire-compliant. But rather than working through the body corporate, the rules required the city to chase each owner – many of whom were spread across the region – individually.

Fraser Main, the Group MD at Trevor Main Group, the facilities manager at LaCrosse, has a different complaint. The fact that the individual owners under the current regulatory framework are liable for the non-compliant building, shows that the protections for buyers of apartments are weaker than those for buyers of standalone houses, who benefit from homeowners’ warranty insurance schemes that cover buyers and owners for defects, even after they occupy the building.

The owners of LaCrosse’s 312 apartments and 15 commercial lots haven’t had to pay yet, as the builder LU Simon is proposing to cover the cost.

“In this case, the company we’re dealing with is a pretty good builder who’s financially sound,” Main says. “If it wasn’t someone with that credibility and that brand to protect, it may not be the case.”


Some reforms are happening. NSW this year updated its strata title laws to respond to the fast-growing form of apartment living by, for example, making it easier to demolish old blocks.

But strata laws still don’t cover the sharing economy and the issue of owners – or tenants – letting out apartments via sites such as Airbnb means that is still a legal grey zone.

It was an issue for Holliday, who lived in a strata community in Sydney’s inner west until early 2015.

“We knew that there are several people renting their apartments for short-term residents via Airbnb and there’s nothing in the strata law that says whether that’s permitted or not.”

She also says the state’s well-known SEPP65 design guidelines, which have done much to raise the standard of NSW apartments by setting size rules, have the unintended consequence of limiting the production of smaller, more affordable units.

“It’s a  bit of a two-edged sword,” she says. “The planning system really doesn’t like studios.”

Back in Brunswick, McLeod is pushing ahead with Nightingale. He’s redesigned the building with three ground-floor car parks and, in consequence, cutting the planned number of bicycle parks for residents and guests to 37 from 59.

He doesn’t know when construction will start – he still has to get a permit. But he does know the VCAT decision has pushed the costs up. The $50,000 in costs associated with that legal process will add to the bill, and when the profit margin for investors is included, that will take the total up to $60,000. That’s an extra $3000 on the cost of each apartment.

“The damage is borne by the residents,” he says.

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