Victorian Civil and Administrative Tribunal|2015-08-26|Before: Ms J, Mr J

The Victorian Civil and Administrative Tribunal refused to grant a planning permit for a six-storey apartment building in Hawthorn because the design failed to create an active, engaging street frontage and because the building's entrances opened directly onto a busy street with parked cars, making it unsafe and inconvenient for residents. While the Tribunal accepted that the building's height and overall architectural design were acceptable given the area's recent development, it found that having 170 metres of frontage with only residential doorways and car park entries did not meet the planning scheme's goals for a lively street environment. Additionally, many apartments were too deep and poorly oriented, resulting in poor natural light. The Council's decision to refuse the permit was upheld.

This matter is of particular concern to the Council and third parties. Ms Piskuric stated that the Council opposes the reduction of parking sought.

Ms Schnell explained her concerns at the hearing and Mr Doyle identified the objections by his client. They referred to the significant parking pressures in this area and the importance of retaining parking for this commercial precinct. They believe the proposal lacks visitor parking and will place even more pressure on parking opportunities for existing businesses and their customers/clients.
Ms Schnell submitted that residents of the dwellings would have more than one car per unit and many will not use stackers because the layout is too tight and the stackers are too inconvenient. She said this had been her experience of new development that had already occurred in the area.
Further, Mr Doyle referred to the displacement of parking from the subject land. This parking area is currently leased by his client and used for around 20 (informally arranged) employee parking spaces.
The proposal provides 113 car spaces for 111 dwellings (mostly in stackers) and six on-site, at grade, visitor car spaces. The resident parking provision exceeds the required amount of parking based on Clause 52.06 of the Scheme. There is, therefore, no basis upon which objections can be upheld arguing there is insufficient resident parking even though residents may chose to part on-street if spaces are available. Moreover, the location is well served by public transport and this is an area where resident parking reductions may be justified based on policy and an empirical analysis.
The key questions for our determination are, therefore, the amount of visitor parking and the impact of displaced parking from the subject land.
Ms Dunstan explained why some on-site visitor parking had been recommended by her. The proposal provides six visitor spaces. Her evidence was that this amount of visitor parking is sufficient to cater for peak visitor demands during the daytime when on-street parking is close to or essentially at capacity. Her evidence was that into the evenings, when more visitors are expected to the dwellings, there is available on-street parking. Ms Dunstan disagreed with the Council that two surplus resident bays should be provided for visitors. Her evidence was that these are positioned behind secured parking and consequently require additional infrastructure, such as intercoms, or other changes to the car park layout. She did not consider such changes to be necessary or warranted.
We accept Ms Dunstan's evidence that on-site visitor parking provision is acceptable for daytime needs and there is sufficient on-street parking available outside standard business hours to support residential visitors at other times. Activity occurs in this locality at weekends and evenings but the surveys show sizeable and convenient vacancies without this project taking up an unfair proportion of those spaces for use by others in the area.
The proposal would displace car parking that occurs on-site by another business. That would need to be accommodated in the wider area and is not a reason to require more on-site provision. We are satisfied on the expert evidence that the project meets it own parking demands.

DO ANY OTHER MATTERS WARRANT REFUSAL OF A PERMIT?

Several statements of grounds refer to impacts on light, shadowing and privacy. We understand that these relate to No. 25 Lynch Street, although this is not articulated in all of the statements of grounds.
No. 25 Lynch Street is an apartment building with a small light court abutting the eastern boundary of the subject land. Plans of that development were provided to us by the Council showing window and terrace locations. A larger light court is proposed in the subject application that aligns partly with the light court on the adjacent land.
On the information available, it appears that sufficient solar and daylight access would be retained to the abutting building. Screening to bathroom windows in the proposed development would also be required to limit inter-viewing and this could be addressed by permit conditions. Additional screening, as recommended by Ms Heggen, could be provided to address potential overlooking from the balconies of several proposed apartments.

The adequacy of the parking layout was questioned by Ms Schnell. This was in relation to matters such as headroom clearance and was linked with her concern about the convenience of car spaces for residents' use.
We accept that the Council has been satisfied on this matter (subject to conditions) and have had regard to Ms Dunstan's expert evidence that the proposal meets the necessary standards of Clause 52.06 of the Scheme.

One statement of grounds refers to an oversupply of dwellings in the area. This is not a matter upon which there is any empirical information or a reason why we have refused a permit. Local policy directs more residential development in West Hawthorn. This is a response to broader State policies and consistent with urban consolidation objectives cited in the Scheme and Plan Melbourne. The addition of apartments is appropriate in this planning context.

Ms Schnell and Mr Doyle expressed concern about construction impacts and disruption to local businesses. Similar concerns are raised in other statements of grounds. Ms Schnell and Mr Doyle emphasised the need for existing businesses to continue to trade and function. Ms Schnell referred to her experience with other construction projects including the lack of enforceability and ad hoc road closures. Mr Doyle suggested a condition be included in a construction management plan requiring advance notice to other businesses of road closures.
We appreciate that there has been much construction activity in the area over time given the extent of redevelopment that has occurred. A construction management plan is an appropriate way to seek to limit impacts. It will not prevent all impacts. If issues arise that are not in accordance with an approved construction management plan or EPA standards, then this is a question for enforcement. It is not a reason to refuse a permit. If we had been minded to grant a permit, a notice period to residents and businesses of any partial/full road closure would have seemed reasonable.

The subject land is suited for redevelopment in a well serviced location. We have found many elements of the design response to be acceptable on a site that must meet the challenges of being long and narrow with a railway embankment abuttal. Our conclusion includes that the building envelope, architecture, and amount of on-site car parking are acceptable. In addition, there is the potential to address some concerns about off-site overshadowing and off-site amenity impacts through permit conditions.
We are not, however, satisfied that the design response achieves a level of street activation to meet the design and policy objectives. Nor are we persuaded that the layout for this residential development is acceptable when two of the residential lobbies and car park areas involve resident movement directly onto the street without the protection of a footpath in a busy and complex environment with parked cars and service vehicles. We also have concerns about the internal amenity of some proposed dwellings.
We accept that the proposal has a number of benefits and positive attributes but these do not outweigh the layout issues we have discussed in these reasons. The decision of the Responsible Authority is therefore affirmed. No permit is granted.

[1] We have considered the submissions of all the parties that appeared, all the written and oral evidence, and all the exhibits tendered by the parties. We have considered all the statements of grounds filed by persons who stated that they did not intend appearing or did not appear. We do not recite or refer to all of the contents of all of the documents in these reasons.

[2] Lonza Nominees Pty Ltd v Boroondara CC [2011] VCAT 2143.

[4] This approach is consistent with DDO12 which includes a general requirement "Vehicular access should not be from Burwood Road where there are other options for vehicular access".

[6] Clause 16.01.
[7] Clause 21.12.
[8] Clause 21.08.

[9] This is a reference document in Clause 22.15.

[10] Amendment C167 introduced the current controls which varied from those introduced in 2011 under Amendment C69.

17-23 Lynch Street Developments Pty Ltd v Boroondara CC [2015] VCAT 1334 (26 August 2015)

Lonza Nominees Pty Ltd v Boroondara CC [2011] VCAT 2143.

Outcomedefendant

Disposition:

The decision of the Responsible Authority (Boroondara City Council) was affirmed. No permit was granted for the proposed development.

17-23 Lynch Street Developments Pty Ltd v Boroondara CC [2015] VCAT 1334

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17-23 Lynch Street Developments Pty Ltd v Boroondara CC [2015] VCAT 1334 (26 August 2015)

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