Victorian Civil and Administrative Tribunal|2004-01-30

139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44 (30 January 2004)

Application pursuant to s 79 of the Planning and Environment Act; Melbourne Planning Scheme; Mixed Use Zone, Heritage Overlay and Design and Development Overlay; proposal for alterations and additions to existing buildings, including partial demolition, for the purposes of 39 apartments, 3 home offices and associated car parking; issues of amenity impact on abutting and adjacent land, loss of views, impact on the development potential of abutting land, impact on the significance of the heritage place, impact on neighbourhood character, and traffic and parking.

Merits hearing of Application for Review pursuant to of the .

Mr M Townsend of Counsel, who called evidence from Ms R Hansen, Consultant Town Planner.

Mr C Canavan QC, with Mr A Finanzio of Counsel (with Mr N Tweedie of Counsel in place of Mr Finanzio on the second day of hearing), who called evidence from Mr S McGurn, Consultant Town Planner, Mr G Tucker, Consultant Traffic Engineer, and Mr D Bick, Consultant Architectural Historian and Conservation Architect.

Mr I Pitt SC on behalf of all objectors who lodged a Statement of Grounds, other than the North and West Melbourne Association Inc. His clients are listed in an appendix to his written submission to the Tribunal.

Ms A Williams on behalf of the North and West Melbourne Association Inc.

1. We have viewed the subject land and surrounding land, including from windows and

decks facing the subject land at 147-149 Chetwynd Street, 129 Chetwynd Street and 460 Queensberry Street.

2. This is an Application for Review of the failure of the responsible authority to grant a permit within the prescribed time. Following the lodging of the Application for Review the responsible authority resolved, via its Planning and Development Committee, that had it determined the permit application within time it would have refused it on the following grounds:

The proposed development is detrimental to the amenity and orderly and proper planning of the area.

The proposal is an overdevelopment of the site by excessive visual scale, height and bulk.

The proposal causes an unsatisfactory level of overview and overshadowing of the surrounding neighbourhood.

The proposal will cause excessive traffic which will result in poor and dangerous traffic conditions.

The access to the carpark is considered to be unsafe and inadequate.

The proposal has insufficient regard for the heritage values and controls of the area.

The proposal has inadequate regard for disability and public pedestrian access for the site.

The proposal fails to satisfy Council that refuse and recycle measures will be dealt with adequately.

The density of the proposal is inappropriate for the nature and position of the site.

This resolution was passed despite the Officer's Report on the proposal recommending that a permit be granted subject to conditions.

3. Mr Canavan sought leave to substitute amended plans for the plans accompanying the permit application. These amended plans had been previously circulated in accordance with the VCAT Practice Note and were identified in the letter to the Registrar from Fulcrum Town Planners dated 19 December 2003, a copy of which is on the Tribunal's file. The changes shown on the amended plans were generally aimed at addressing matters raised in the Officer's Report and in the resolution to refuse the application. None of the other parties objected to substitution of the amended plans. We ordered them to be substituted.

4. The name of the permit applicant was Pacific Estates Pty Ltd. The name of the Applicant for Review was 139 Chetwynd Street Pty Ltd. This having been drawn to the attention of the parties, Mr Canavan sought leave to amend the name of the permit applicant to 139 Chetwynd Street Pty Ltd. None of the other parties objected to the amendment. We ordered accordingly.

5. The subject land and surrounding land have been conveniently described in the Officer's Report on the permit application as follows:

The application site comprises an L-shaped block of land with access frontages to Chetwynd Street, Temperance Hall Lane, Pearson Place and Chetwynd Place. The site is currently occupied by a two storey office building to the frontage with Chetwynd Street and a single storey high walled warehouse building behind recently developed terraces at 123 to 137 Chetwynd Street.

The Copy of Title shows a total site area of 1979 sq m and both Chetwynd Place and Temperance Hall Lane as "Road". A narrow carriageway easement runs along part of the northern boundary (abutting 147 to 149 Chetwynd Street).

The north of the subject site (147 to 149 Chetwynd Street) is developed by a two storey very early Victorian terrace house (previously 2 houses) that is graded '"A" in the Heritage Places inventory. Private open space to this dwelling is orientated to the west and abuts the north elevation of subject site. Pearson Place runs the length of the rear boundary (west) of 147 to 149 Chetwynd Street.

Beyond Chetwynd Place is a row of eight two storey brick townhouses at 123 to 137 Chetwynd Street (approved under Planning Permit No TP96/754 issued on 14 November 1996). These town houses gain vehicle access to garages via Chetwynd Place (off Temperance Hall Lane). On the south side of Temperance Hall Lane are the rear (two and three storey buildings) of buildings, and fences, properties facing Queensberry Street.

Abutting the rear of the site (to the west) is Carrera Motors at No 68 to 82 Leveson Street. It comprises an L-shaped block and is occupied by an enclosed factory building built to all boundaries. The wall abutting the subject site is to a height of 7.2 metres.

6. It is proposed to make alterations to the existing office building facing Chetwynd Street and convert it to six dwellings, four of which are to contain home offices at ground floor level facing Chetwynd Street. The alterations include the development of a third storey comprising two penthouses set back 6 metres from the street frontage and approximately 2 metres from the side boundaries.

7. For the rear part of the site it is proposed to construct three levels containing 33 dwellings above ground floor car parking for a total of 53 cars, 8 of which are to be visitor spaces. Six visitor spaces are to be provided in the main car park, with another two in an undercroft accessed from Chetwynd Place. At ground floor facing Chetwynd Place there are also to be 3 offices (one of which is to occupy 44 square metres, with the other two occupying 40 square metres), plus two lobbies which provide access to the dwellings on the floors above. These offices are not part of and do not have direct access to any of the dwellings. They are proposed to be linked to dwellings by permit condition and/or title arrangements. At first floor level the building is to be separated into a northern module and a southern module separated by a common courtyard and abutting private courtyards.

8. At ground floor level the rear building is to be constructed to the boundaries. At first, second and third floor level on the western elevation (abutting the land occupied by Carrera Motors) the building is to be constructed to the boundary, save for two light courts a metre deep which extend for 18 metres and 4 metres, respectively, along the boundary. The courtyard areas at first floor level provide a separation distance of approximately 12 metres between the northern and southern modules of the building. At first floor level the setback from the northern boundary is approximately a metre to the edges of balconies and 2.5 metres to the wall of the building. At this level the setback from the eastern boundary to Chetwynd Place is zero. From the southern boundary the setback to the building wall is generally 1.2 metres, but balconies are to overhang Temperance Hall Lane by approximately 300mm.

9. At second floor level the setbacks of the rear building from the boundaries are to be generally the same as for first floor level. At third floor level the setbacks from the western boundary remain the same as for the lower floors. On the southern elevation facing Temperance Hall Lane the setback of the wall is to be approximately 3 metres, with the balconies of two of the dwellings to have an overhang above the lane of approximately 300mm. On the northern elevation the setback of the wall at the third floor level varies between 3 and 4.5 metres, with balconies extending forward of the wall by approximately 2 metres. At third floor level on the eastern elevation the setback is generally 3 metres, with balconies with 1.7 metre high privacy screens extending to the boundary in the southeastern section of the southern module and set back by 600mm from the boundary along the northern section of the northern module.

10. The subject land and land generally to the west is in the Mixed Use Zone. In the Mixed Use Zone a permit is required for the use "office" (Clause 32.04-1), for the construction of two or more dwellings on a lot, and if an office is not part of a dwelling or its curtilage, for the construction of dwellings and works. The requirements of Clause 55 (ResCode) do not apply as parts of the proposed development are four storeys in height. The Mixed Use Zone boundary juts out from west to east such that it includes the land on which the existing office building facing Chetwynd Street is located. To the north and south of the subject land the dwellings facing Chetwynd Street are included in the Residential 1 Zone, as are the properties facing Queensberry Street from the corner of Queensberry and Chetwynd Street to approximately midway between Chetwynd and Leveson Streets.

11. The land is also within a Heritage Overlay (HO3 - North and West Melbourne Precinct). Pursuant to the Overlay a permit is required to demolish improvements on the land and to construct a building or to construct or carry out works.

12. It is also included in a Design and Development Overlay (DDO 32), pursuant to which a permit is required to construct a building or to construct or carry out works. The schedule to the Overlay specifies a maximum building height of 14 metres.

13. Car parking requirements are set out at Clause 52.06-5, pursuant to which 78 spaces would be required for the development. A permit is required to reduce the number of car spaces to be provided, pursuant to Clause 52.06.

14. It is clear that there is a great deal of policy support for redevelopment of the land for a mixed use or medium density residential development. The purpose of the Mixed Use Zone includes to provide for a range of, inter alia, residential and commercial uses which complement the mixed use function of the locality and to encourage residential development that respects neighbourhood character. The Municipal Strategic Statement (MSS) identifies the area in which the site is located as a growth area with the potential to contribute to the satisfaction of urban consolidation objectives. Generally speaking there is no dispute between the parties that redevelopment of the subject land generally in the form of a mixed use development, or in the form a medium density development, is appropriate. What is in dispute are aspects of this particular proposal and the impacts it will have.

15. We agree with the submissions and evidence put on behalf of the applicant that instances of overlooking can be readily dealt with by permit condition. We also agree that the amount of private open space per dwelling would be acceptable, as would the internal level of amenity for future occupants. We also agree that the amount of car parking proposed would be appropriate, given that it complies with the relevant ResCode standard. We further agree that the proposed demolition would not have any detrimental impact on the heritage place.

* the amenity impacts of the development in terms of visual presentation and overshadowing, particularly on the rear of the two storey row houses at 125 - 135 Chetwynd Street;

* the presentation of the rear building in neighbourhood character and heritage terms, particularly to Chetwynd Place, but also when viewed from Chetwynd Street down Chetwynd Place/Lane;

* the presentation in heritage terms of the building fronting Chetwynd Street;

* the impact of the rear building on the potential development of adjacent land occupied by Carrera Motors;

* the impact of traffic generated by the proposed development on Temperance Hall Lane.

As set out below, we have found that the amenity impacts of the rear or western part of the proposal would have unacceptable and unreasonable amenity impacts by virtue of intrusive visual presentation and overshadowing of the rear of the row houses at 123-137 Chetwynd Street. That is sufficient reason for us to refuse a permit and strictly speaking it is not necessary for us to deal with the other issues raised during the hearing. However, we recognise that it will be only a matter of time before another development is proposed, so we have dealt with the other issues, coming to conclusions and making findings where we have been able to, or otherwise making what are intended to be helpful comments, with the aim of assisting both the responsible authority and the permit applicant.

The amenity impacts of the development in terms of visual presentation and overshadowing

17. The greatest impacts of the proposed development in terms of visual presentation and overshadowing would be on the rear of the row houses at 123-137 Chetwynd Street and more so on the rear of the dwellings at 125-135 Chetwynd Street. The row of dwellings is three storeys high at the rear. At ground level are garages. For 125-135 Chetwynd Street the first floor has decks extending to the boundary with Chetwynd Place. These decks extend the width of each of these dwellings (approximately 4.8 metres) and are approximately 3.5 metres deep. They provide the only private open spaces for these dwellings. The windows to these decks are he only source of daylighting at this level on the western elevations of these dwellings. At upper floor level bedroom windows face west and are the only source of daylighting for these rooms. The dwellings which form the "bookends" to the row do not have decks and at the third floor have windows other than those which face directly west.

18. The proposed development would be separated from the existing row houses by the 6 metre wide Chetwynd Place. It would have no setback until the third floor, which is to be set back 3 metres to the building wall, but with balconies with 1.7 metre high privacy screens extending to the boundary in the southern module and set back approximately 600mm from the boundary in the northern module. The tops of the privacy screens scale off the plans at 7.6 metres higher than the level of the decks at 125-135 Chetwynd Street. The top of the proposed building scales off at 10.5 metres higher than those decks. The break at first floor level between the southern and northern modules would provide little or no relief for the majority of the dwellings in the row. In our opinion the presentation would be aggressive and overwhelming and would result in a totally unacceptable sense of enclosure. The degree of visual intrusion is, in our opinion, exacerbated by the lack of articulation of the lower three floors of the proposal. But even a significant degree of modelling of the facade at these levels would not result in an acceptable outcome.

19. At the equinox the proposed development would begin to overshadow the habitable room windows of the "bookend" dwellings in the row from approximately 2:00 pm onwards. It would begin to overshadow the second floor decks of the other dwellings in the row from approximately 2:30 pm. Mr McGurn's evidence was that the rear elevations of the row houses would remain free of shadowing from the proposed development until after 1:00 pm and the decks would remain free of shadowing for at least 4 hours between 9:00 am and 3:00 pm. He considered that the length of time during which the decks would be free of shadowing from the development is acceptable in the context of the inner suburban location of the site and its abuttals.

20. But that is only part of the story. The decks in question, which, as we have noted above, are the only private open spaces for these row houses, are now shadowed in the morning by the larger building of which they are part. Our estimation is that all of the decks would be shadowed until well after 11:00 am, and probably remain in shadow either totally or partially until close to 12:00 noon. We do not have available to us diagrams showing the existing levels of shadowing of these decks. But our conclusion is that, taking into account the existing shadowing of these decks, they would be free of shadowing for only approximately 3 hours per day. In our opinion that is unacceptable and would compound the unreasonable amenity impact caused by the presentation of the rear part of the proposed development to the row houses. The relocation of the lift over runs proposed by the applicant would not reduce the extent of overshadowing to an acceptable level (nor would it have any appreciable impact on relieving visual intrusion). In our opinion there should not be any increase in overshadowing of the decks in question over and above the shadowing they now experience.

21. It was put to us on behalf of the applicant that the occupiers of the row houses cannot expect to have the same level of amenity as occupants of dwellings in the middle distance and outer suburbs, particularly in a context such as this where to the rear they face land in the Mixed Use Zone which has been identified as a site suitable for relatively intense redevelopment. We make the observation that the row houses, just like the dwellings facing Chetwynd Street to the north and south, are in the Residential 1 Zone, not the Mixed Use Zone. But even if they were in the Mixed Use Zone their occupants have a right to some reasonable level of amenity, even if the base from which one might judge reasonableness were somewhat lower than the base which would otherwise apply. It is our opinion that even founding our assessment on this lower base the degree of visual intrusion and increase in overshadowing is unreasonable, and very much so.

22. In forming our opinion in relation to amenity impacts of the proposed development we have not relied on any loss of views which would be experienced by the occupants of these row houses, or experienced by anyone else. The Design Objectives set out in Schedule 32 to the Design and Development Overlay are:

To maintain the predominant low scale nature of the area.

To ensure development retains views to significant landmarks.

To ensure the development supports high levels of pedestrian amenity related to access to sunlight and sky views and a pedestrian friendly scale.

23. Clause 2 of the Schedule provides that a permit cannot be granted to vary the Maximum Building Height. The Table to the Schedule specifies the maximum building height at 14 metres and sets out a number of Built Form Outcomes, including "Development which retains views to the landmark Meat Market Building and the North Melbourne Town Hall roof and tower." In a different context relating to the Built Form Outcome of "New development respects existing built form especially low scale of the existing older building stock in the street", Mr Pitt raised as a question of law whether the achievement of the Built Form Outcomes was necessary to achieve the Design Objectives of the Overlay. All the parties gave the relevant consents to our determining this question.

24. Having examined Clauses 43.02 - 43.02-5 and the whole of Schedule 32 we have concluded that the Built Form Outcomes are not mandatory requirements which must be satisfied, but broadly expressed benchmarks which must be considered in the assessment of whether a proposal meets the Design Objectives. We think they are analagous in some respects to ResCode standards which are expressed in non-quantitative terms, such as Standard B1 relating to neighbourhood character. Having reviewed our notes on Mr Canavan's and Mr Pitt's oral submissions on this question, we believe that in large measure they are in furious agreement.

25. It follows from our determination of the question of law that the Built Form Outcome of retention of views to the Meat Market and North Melbourne Town Hall tower is not a mandatory requirement for the achievement of the Design Objectives of Schedule 32. But the question also arose as to whether the views referred to are views from the private domain or the public domain. Mr Canavan submitted that they are views from the public domain, as was found by the Tribunal comprising Justice Kellam and Member Gilfillan in Juliano, Furletti and Scott and Ors v Melbourne City Council and Omiros Pty Ltd (No 1999/19285). In that case the subject land was at 1-5 Rush Place and 26-34 Little Cardigan Street, Carlton. It was in the Mixed Use Zone and was included in a Heritage Overlay, and Design and Development Overlay Schedule 6, which specifies a maximum building height of 8 metres for street frontages and 13.5 metres for the balance of the land. The Built Form Outcomes of Schedule 6 make no mention of retention of views. But Clause 19.03 of the State Planning Policy Framework does, as it did at the time of the decision of Justice Kellam and Member Gilfillan. They found that Clause 19 "is designed to encourage the urban form to respect viewpoints from the public realm rather than to protect private views", and we agree with that finding. They also stated that "in circumstances where planning controls apply and which encourage medium term buildings, we do not conclude that there can be a reasonable expectation that a view will be retained particularly where preferred or prescribed height controls are in place (as in this case)". They concluded that "the protection of private views in areas where high or medium rise buildings are encouraged would in our view cause significant inhibition upon development and would be opposed to the central thrust of current planning policy. We have accordingly concluded that the fact occupiers of the top floor premises at 17-21 Argyle Place will lose southward views of the city is not a reason to deny a permit to the proposed development in its present form".

26. It is not necessary for us to come to a final determination as to whether or not the views referred to in the Built Form Outcomes in the Table to Schedule 32 of the Design and Development Overlay are views from the public domain. On balance we think they refer to views from the public domain. But in any event the retention of such views is not a mandatory requirement.

27. As Justice Kellam and Member Gilfillan observed in their decision, the Tribunal has consistently held that interference with a view may in certain circumstances be a relevant planning consideration and that outcomes should result in general terms in reasonable sharing of views. In the case before them we do not know whether the southward views of the city enjoyed by the occupiers of the top floor premises at 17-21 Argyle Place were the only views available to them. Photographs tendered by Mr Townsend suggest that they were not the only views available to them. But be that as it may, we do not know what views in the sense of general outlook rather than panoramic views of the city skyline those occupants would be left with if the development in that case were built. In the case before us the outlook across the roof of the existing building to the west of the occupiers of the row houses facing Chetwynd Street would be replaced by a wall 6 metres away. That height of the proposed building relative to the decks at the wall would be 10.5 metres higher than the decks at the rear of those properties, with the top floor set back 3 metres from the boundary, but with 1.7 privacy screens with setbacks varying from zero to approximately 600mm from the frontage. The roof of the proposed building would be approximately 4.0 metres higher than the tops of west facing windows at the third floor level of the row houses. Save for the "bookend" dwellings in the row, the only outlook available from the rear of these dwellings would be reduced to a view of a very intrusive wall and in our opinion this is unreasonable. The circumstances which applied in the Juliano case may have been significantly different from the circumstances which apply in the case before us. We are of the opinion that the loss of outlook from the rear of the row houses facing Chetwynd Street is so significant that it is a relevant consideration, inextricably linked in this case with the issues of visual presentation and overshadowing. Having viewed the subject land from the decks at the rear of 460 Queensberry Street we are of the view that the proposed development would not unreasonably deprive other properties of view or outlook.

The presentation of the rear building in neighbourhood character and heritage terms

28. The buildings in the area surrounding the subject land generally have between 1 and 3 storeys. The Children of Mary building to the south and facing Queensberry Street has a height similar to a four storey building. The rear part of the proposed development is 4 storeys. The height of the front building facing Chetwynd Street is to be 10 metres. The rear building varies in height between 12 and 13 metres, below the 14 metre height limit imposed by Schedule 32 to the Design and Development Overlay.

29. The Built Form Outcomes in the Table to Schedule 32 include:

New Development respects existing built form especially low scale of the existing older building stock in the street.

Development in streets with higher typical built forms provides a transition in scale to the lower building forms.

In the local context, but setting aside considerations of visual presentation and shadowing of the rear building in relation to the row houses facing Chetwynd Street, and the general presentation of that building to Chetwynd Place, we are of the view that the development generally respects the scale of existing building stock in the local area. We agree with Mr Canavan that the transition of a storey from the buildings immediately adjacent to the site is appropriate. But it is not just a question of a storey or of total height. The amenity impacts of the proposal must be factored into the assessment, as must the impact on the streetscapes of Chetwynd Street, Chetwynd Place and Temperance Hall Lane. The amenity impacts we have discussed at paras 17 - 21 above.

30. The neighbourhood character impact of the proposal in streetscape terms would be expressed mainly in Chetwynd Place. We acknowledge that in streetscape terms Chetwynd Place and Temperance Hall Lane are not as important as Chetwynd Street. However, they are both important to the residents who live to the east and to the south of the subject land and they would be important to the occupants of the proposed development. Our concern is mainly with Chetwynd Place rather than Temperance Hall Lane. We are of the opinion that, given the existence of the 3 storey rear of the row houses facing Chetwynd Street, the proposed development would result in a very intrusive presentation. To say that it would produce a canyon effect is perhaps going a bit too far, but nevertheless it would result in a pronounced sense of enclosure, despite the break between the rear building modules at first floor level. That sense of enclosure would be exacerbated by the proposed elevated walkway between the front and rear buildings and by a lack of articulation in the façade facing Chetwynd Place.

31. In terms of neighbourhood character we do not have any concern about the presentation in the streetscape of the building facing Chetwynd Street (aside from those concerns expressed at para 35 below). However, in both heritage terms and in streetscape impact terms we have concerns about the façade treatment of the east facing façade of the northern module of the rear building and the colours and finishes of the eastern façade of the rear building as a whole. The east facing façade of the northern module of the rear building is proposed to have an irregularly patterned façade which would be clearly visible from Chetwynd Street. In our opinion that façade treatment would be out of character in the area and be not in keeping with the character and appearance of the adjacent heritage building to the north of the subject land. We do not have that concern about the façade of the southern module of the building, which is simpler and relatively rhythmic in nature. In general terms we agree with Mr McGurn that modern architecture is to be preferred for infill development is areas subject to a Heritage Overlay. We note the policy guidelines at Clause 22.05 of the Scheme which state that the external shape of new buildings should be interpretative, rather than respectful, in a Level 3 streetscape, that surface materials should always be respectful, and that the details of a new building should be a simplified modern interpretation of the historic form rather than a direct reproduction. In our opinion the façade patterning, and to some extent the angled wall, of the east facing façade of the northern module at the rear falls well short of these guidelines in terms of a simplified interpretation of the historic form.

32. We assume that the colours and finishes proposed for the rear building are the same as those proposed for the front building facing Chetwynd Street. Colours and finishes proposed are shown on Plan SK11A, which shows the eastern elevation for the front building facing Chetwynd Street. The elevations for the rear building do not show colours and finishes. The colours and finishes shown on Plan SK11A include zinc alum, natural anodised aluminium cladding, raw charcoal concrete oxide or render colour to match, and raw tan oxide or rendered colour to match. We do not consider that these colours and finishes are respectful. They would not be in keeping with the character and appearance of adjacent and nearby buildings in the area to which the Heritage Overlay applies, a matter to which we must have regard pursuant to the decision guidelines for the Heritage Overlay set out at Clause 43.01-5.

The presentation in heritage terms of the building fronting Chetwynd Street

33. In response to the recommendation of the Council's Heritage Advisor, Ms Gould, the plans show the parapet of the existing office building reduced to match the parapet height of the abutting " A" graded building at 147-149 Chetwynd Street. We do not agree with Ms Gould. It is our opinion that retention of the current parapet height would not adversely impact on the context of the "A" graded building and would assist with concealing views of the penthouse additions to the existing building. Incidentally, where it returns and extends to the west, its retention would also address in part the privacy concerns in relation to the dormer style windows in the roof at the front of the abutting building.

34. The penthouse additions would not adversely impact on the significance of the heritage place and, more particularly, would not adversely impact on the context of the abutting "A" graded building, provided they achieve a high level of concealment from views from Chetwynd Street. The penthouses are proposed to be set back 6 metres from the frontage, with terraces with privacy screens extending to 1.8 metres from the frontage. The setback is such that the penthouse extensions will be located behind the ridgeline of the abutting property. The projections forward of the roofs of the penthouses would extend in front of this ridgeline and should be deleted because they are likely to highlight the extension and they serve no useful purpose. We are not entirely convinced that the screening proposed for the northern side of the terrace will not be intrusive when viewed from west side of Chetwynd Street to the north of the land. There appears to be a discrepancy between Plan SK11A and Plan SK8D in the extent of screening proposed. We have formed the preliminary view that the terrace for the northern penthouse should be set back further from the frontage to eliminate an oblique view of its northern screening from Chetwynd Street, but it may well be that it can be demonstrated that this screening is not as intrusive as we believe it may be.

35. We are also of the view that the colours and finishes proposed for the building facing Chetwynd Street would not be respectful of and would be detrimental to the significance of the heritage place, and in particular on the context of the "A" graded building which forms part of the heritage place. These colours and finishes have been described in para 32.

The impact of the rear building proposed on the potential development of abutting land

36. This was a concern raised in an objection lodged to the permit application by the owner of the Carrera Motors site to the west. The objector did not lodge a Statement of Grounds and so was not a party to this proceeding. We therefore do not have the benefit of any submission as to how the proposed development would affect the Carrera Motors land. Clause 22.17 of the Local Planning Policy Framework sets out policies for Urban Design outside the Capital City Zone. Those policies deal with scale, context, building heights, building bulk, prominent sites, street level frontages, building tops, visible facades and blank walls, fronts and backs of buildings, pedestrian connection and vehicle access, building projections, microclimate-solar access, microclimate - protection from wind and rain, landscape, and environmental responsible design. Under the heading of Context, one of the 3 policy dot points is "In identified growth areas, new buildings and works should consider the potential for other development to occur in the immediate environment and respect the ability for surrounding sites to be equally developed".

37. There is always a large element of "first come best dressed" in situations where at some stage development may occur on abutting property, but to the best of our knowledge no proposal has been formulated for the Carrera Motors land, let alone submitted as a development application. We don't know what the owner of the Carrera Motors site intends for that land, or if anything at all is intended. The light courts proposed along the western boundary of the subject land, and the separation at first floor level between the modules of the rear building would provide some relief to the Carrera Motors land and in our opinion there would be opportunity to generally build to the boundary with appropriate light courts or setbacks opposite the light courts and first floor courtyards of the proposed development. In the particular circumstances of this case we do not consider that the proposed development would prejudice unreasonably the future development of the Carrera Motors site.

The impact of traffic generated by the proposed development on Temperance Hall Lane.

38. The evidence of Mr Tucker was that in addition to the existing traffic volumes in Temperance Hall Lane the traffic generated by the proposed development would result in an estimated total of 344 vehicles per day. The indicative maximum street capacity of the lane is 300 vehicles per day. Mr Tucker stated that the estimated future volumes are in line with the indicative maximum capacity and that the lane will continue to function in a satisfactory and appropriate manner. We have some reservations that it will and observe that a more modest development of the rear part of the site, which in our opinion would be necessary to overcome the amenity impacts on the rear of the row houses facing Chetwynd Street, would result in the estimated volumes for Temperance Hall Lane being much more closely aligned with the indicative maximum capacity.

39. For the sake of completeness we offer some observations about other issues raised during the hearing.

40. It is our opinion that the balcony overhangs in Temperance Hall Lane are not justified and would be avoided by appropriate setbacks on the southern elevation of the rear building. We also have concerns about the elevated walkway connecting the rear and the front buildings. Direct stair access and/or an internal lift would remove the need for such a walkway.

41. We are not greatly perturbed about the shadowing by the proposed development of Temperance Hall Lane and Chetwynd Place. These are not lanes which are important pedestrian spaces, and moreover they do not link with other lanes or streets other than Chetwynd Street. We observe that a more modest proposal as suggested above would significantly reduce the amount of shadowing of these lanes.

42. Finally, we are uneasy about the proposed offices in the rear building not being physically connected to or part of a dwelling. Yes, each of them could be tied to a particular dwelling by permit condition and/or title arrangements, but it is our view that it would be better if they were home offices in fact as well as in name.

139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44

At a glance

Court

Decision date

Source

Judgment (82 paragraphs)

139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44 (30 January 2004)

Parties