19-23 Cookson Street Camberwell v Boroondara CC [2008] VCAT 1347

19-23 Cookson Street Camberwell v Boroondara CC [2008] VCAT 1347 - VCAT 2008 case summary — Zoe

[13]

The review site comprises three parcels of land (19, 21 and 23 Cookson Street) located on the north side of Cookson Street, opposite Camberwell Railway Station and approximately 50 metres east of Burke Road. It has a combined frontage to Cookson Street of 16.46 metres, a depth of 36.58 metres and an overall area of 602.107 square metres.
There is a minor fall across the site from east to west and a fall of about 2.4 metres from north (the rear) to south (Cookson Street). At the rear of the site is a 3.66 metre wide laneway, which provides rear access to the properties at 15 to 25 Cookson Street. This laneway intersects at its western end with another laneway that runs north-south and restricts traffic to a one way northerly direction between Cookson Street and Broadway. The residents advised this laneway has a high level of pedestrian traffic and Ms Dunstan presumed it is associated with persons walking to and from the railway station.
The site forms part of the Camberwell Junction activity centre and is located north of the core retail precinct. It is on an elevated slope above the railway station. Currently there are double storey terrace buildings on the site and we noted during our inspection existing uses include a ground level shop in one building and an upper storey office in another building. The existing buildings have a height to Cookson Street of between 9.41 and 9.75 metres.
To the south of the site is Camberwell railway station and the core retail precinct of the activity centre. To the west are retail and commercial buildings fronting Cookson Street and Burke Road. Above the commercial activities on the corner of Cookson Street and Burke Road (718-722 Burke Road) is a recent third storey addition containing apartments. Along Cookson Street to the east is a commercial building (25 Cookson Street) containing an antique retail shop and various office tenancies; the intersection of Holly and Cookson Streets; and residential properties beyond including the heritage listed apartments on the northeast corner of the intersection ( 31 Cookson Street). Finally, to the north of the site (on the opposite side of the rear laneway) is a two storey residential dwelling at 2 Holly Street (Mr and Mrs Connolly's home) that has large outbuildings on part of its side (south) boundary and along all of its rear (west) boundary. We note these buildings have operated as an office and we assume it is or has been associated with a home business. Beyond the Connolly's house are two other detached houses (Mr Dedoncker and Mr Junor's homes).
Holly Street is a small dead end street contained in a heritage precinct with parking permitted on one side. Restricted parking exists elsewhere in Cookson Street.

[19]

The first observation we wish to make is the 11 metre height on a plan in the local planning policy is a nomination or preference at best. It is not a mandatory planning control but, rather, a guide. This means the design of a new building (including its height) must be considered on its own merits.
Mr Soussan submitted the Council acknowledges there is some justification for a building in excess of 11 metres in height on this site because of the combining of three allotments into the one development and because 25 Cookson Street (next door) is already in excess of 11 metres[5]. He maintained that the site is constrained by the heritage significance of the Camberwell railway station and 25 Cookson Street, which is graded C in the Camberwell Conservation Study.
We do not agree. Firstly, 25 Cookson Street may have been given a heritage grading in a study quite a few years ago, but the fact is it is not included in a Heritage Overlay so, as far as the Planning Scheme is concerned, it has no heritage significance that requires detailed consideration. Secondly, we find the Camberwell railway station heritage precinct is well separated from the review site by Cookson Street. Upon inspection, the railway station and the review site read as two distinct elements in the activity centre. We note Mr Soussan's advice that the railway station land is the subject of a planning application to construct (in part) a three storey building on the southeast corner of Burke Road and Cookson Street. Given these circumstances, we are not persuaded by the Council's submission that there are any heritage constraints on the potential building height on the review site.
Mr Dedoncker also expressed concern about the appropriateness of a six storey building adjacent to the Holly Street houses that are in a heritage precinct. We agree with the evidence of Mr Raworth that the development of the review site, though visible, is separated from the precinct by the laneway; there is a notable distinction already between the commercial and residential buildings in Cookson and Holly Streets; we consider that a new taller building on the review site will not adversely impact upon the heritage significance of Holly Street or the remaining areas of this heritage precinct.
In conclusion, it must be remembered there are no heritage policies or controls that affect the review site. The State and local planning policies have earmarked Camberwell shopping centre as a place where higher density and a mix of uses are appropriate. Within this planning policy context, we are satisfied that a six storey building is an appropriate built form outcome on this site.

[21]

Mr Soussan described the building forms in the surrounding area as generally two to three storeys in scale, and the commercial buildings in Cookson Street as having a "medium scale, fine grain" character.
The proposed building rises to 4 storeys in height on Cookson Street. Despite the Council's view that the 6 storey building should be reduced in height by a storey, both the officer's report and Mr O'Dwyer in his evidence found a four storey height to Cookson Street acceptable, stating the apex of the adjacent parapet gables on the front façade of 25 Cookson Street provide a suitable horizontal benchmark. We disagree. Firstly, the gables occupy only a small part of the front façade of a building which extends over three allotments. Secondly, an analysis of what should be the appropriate podium level on the review site requires a broader assessment than just 25 Cookson Street. We are of the opinion the character of this short but highly visible section of Cookson Street is defined by a strong horizontal presentation[6], which should be respected. The various renderings of the Cookson Street façade presented by the applicant fail to persuade us the projection of the car park screen from the façade, relative to the floor levels proposed above, will succeed in creating an adequate recession (and podium appearance) from Cookson Street.
We are of the view the Cookson Street façade should not be higher than the strong main parapet line of 25 Cookson Street (as opposed to the gable elements), which is shown on the substituted application drawings between 76.32 and 76.76 AHD. We note this height would, in fact, closely align with the 11 metre height envisaged by the 1993 structure plan and the Camberwell Junction local planning policy. We are also of the view the proposed building's top 3 levels (above the nominated height for the Cookson Street façade) should be set back. This setback could become a balcony area for the 'third floor'[7] apartments. This means the balcony of the 'fourth floor' will need to be setback to match the wall below or be relocated elsewhere. It is not the role of the Tribunal to redesign proposals put to it, therefore we have not specified what the setback should be or what the design of the balcony should be. The design outcome that we consider necessary is an alignment with the strong horizontal parapet line of 25 Cookson Street, and this is unlikely to be achieved through glass balustrading.
In regard to the balcony which projects forward at the 'fifth floor' (top level) close to the Cookson Street front boundary, we are not persuaded by Mr Hutson's evidence that the selected finishes will adequately diminish the visual mass of its projection. We find it has an inappropriate visual impact upon the Cookson Street context, and should be deleted.
We are satisfied the proposed design of the metal car park screen will, whilst preventing views of the cars, serve to relate the upper apartment floors to the ground floor retail. However, as explained already, we are of the opinion the front façade would benefit from a more strongly defined horizontal parapet line at the 'third floor' balcony height, and we are confident this can be achieved through some modifications to the design.
The Council was critical of the design treatment for failing to respect the rhythm and fine grain of the existing Cookson Street shopfronts. Although the design does not replicate the exact rhythm of the existing shopfronts, we find the proposed division of the street level façade into four is an acceptable design solution. The proposed division will be further enlivened by the shallow recesses of the shopfronts resulting from the column projections; the inclusion of doors into each of the tenancies (as suggested by Mr Gobbo during the hearing); and the robust entrance treatment for the shared access to the office tenancy and the dwellings.

[23]

To the north, the building abuts a laneway, which separates it from the residential property at 2 Holly Street. Despite the inclusion of this property in a Heritage Overlay, we note the original house has been substantially enlarged and the property has an extensive rear building that is, or has been, used commercially with frontage to the north-south laneway to the west. In addition there is a large garage and other outbuildings abutting the laneway behind the review site, further separating 2 Holly Street's private open space from the proposal. All parties agreed, albeit some with reluctance[8], that the proposed screening devices on the upper level balconies of the proposed dwellings would comply with the clause 55 (Rescode) standard in regard to limiting direct overlooking potential into the Holly Street properties.
In our view, however, when viewed from the rear of 2 Holly Street, other Holly Street properties further to the north, and from the public realm of Holly Street, the proposal presents considerable visual bulk along this interface. We are mindful that 15 and 17 Cookson Street (to the west, between the review site and the north-south laneway) could also be expected to be redeveloped in the future at a more intense level than at present. Hence we are of the opinion it is important to create an appropriate built form mass adjacent to the rear laneway on the review site that can be used as a benchmark for any further development on 15 and 17 Cookson Street. We consider that the proposed building would relate better to the laneway, to the dwellings further north, and to the massing of the northern portion of 25 Cookson Street by further increasing the setback of the 'third floor' from the laneway to roughly that proposed at the 'fourth floor'. This means the 'fourth floor' balconies will need to be setback to generally correspond with the setback of the wall below or relocated elsewhere.
We envisage the increased setbacks we are seeking for the upper levels from Cookson Street and the rear laneway may result in changes on the west side of the building, a reconfiguration of the apartments and/or a loss of some apartments. We leave it to the architects to best determine how to incorporate the required changes.

[26]

Mr Soussan explained the Council is generally satisfied with the provision of car parking and the traffic generated by the proposal if one additional car space is provided (in the form of a car stacker to either car space 12 or 20) so that the car parking can be allocated in the following manner:
- 1 car space for each 2 bedroom dwelling (a total of 9 spaces);
- 2 car spaces for each 3 bedroom dwelling (a total of 6 spaces);
- 2 car spaces for the restaurant;
- 2 car spaces for the office; and
- 2 car spaces for the shop.
The residents, however, submitted the area is a "hot spot" with parking in the area reaching saturation level; and parking and traffic movements in the area are difficult.
Ms Dunstan gave evidence the provision of car parking on the review site needs to be considered in the context of its location in an activity centre, which means it is appropriate (in this instance) to not provide customer parking for the shop and restaurant, and to not provide visitor parking for the dwellings. She pointed out there are parking restrictions in place already in the surrounding streets, including resident parking permits. We accept her evidence.
Ms Dunstan also gave evidence the provision of 2 car spaces for the shop is not necessary and one car space would suffice. We accept this evidence and would not require one additional car space to be provided. However, we note there may well be changes to the number of dwellings contained in the building as a result of the additional setbacks we are seeking at the upper levels and this may alter the allocation of car parking. Given the acceptability of the car parking proposed, we are confident an appropriate level of car parking will continue to be provided.
In regard to traffic, we accept the laneways, Holly Street and Cookson Street are capable of accommodating the additional traffic movements resulting from this proposal. We also note Ms Dunstan's evidence that the traffic volumes in Cookson Street were lower than she had thought they would be; and that the Council has no objection to the traffic volumes.
The Council took no issue with the waiving of the loading bay requirement in the Planning Scheme and Ms Dunstan pointed out loading zones already exist in both Cookson and Holly Streets. Given this, we find it is appropriate to waive the loading bay requirement.

[27]

We have explained that in order to better relate to both the immediate context and to the neighbourhood, some aspects in this proposal must be changed. These changes particularly focus upon the building setbacks from the north and south boundaries. We are of the opinion these changes can be dealt with as part of this application, but cannot be effectively achieved by way of permit conditions as it is important we are satisfied with the final design details. As we stated earlier, it is not the role of the Tribunal to redesign the proposal, so we have provided the Applicant for Review with the opportunity to respond to our concerns by preparing an amended set of plans and elevations. This is best achieved by issuing an interim order allowing the Applicant for Review an opportunity to amend the proposal. In summary, the amendments we wish to see are:
- The Cookson Street façade should not be higher than the strong main parapet line of 25 Cookson Street;
- The proposed building's top 3 levels (above the nominated height for the Cookson Street façade) should be set back and this setback could become a balcony area for the 'third floor' apartments;
- Consequently, the balcony of the 'fourth floor' needs to be relocated or setback from Cookson Street to match the wall below;
- The 'fifth floor' balcony projecting toward Cookson Street should be deleted;
- The inclusion of doors into each of the ground level tenancies (as suggested by Mr Gobbo during the hearing);
- The setback of the 'third floor' from the laneway increased to roughly that proposed at the 'fourth floor', and the 'fourth floor' balconies setback to generally correspond with the setback of the wall below;
- Some consequent adjustment to the internal planning and open space provision for dwellings on the top two levels, e.g. by possibly providing open space on the west side or in the light courts on the west side; and
- Any other consequential changes arising out of these alterations.
We wish to emphasise to the Applicant for Review that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.
The next step is to ascertain whether the Applicant for Review wishes to take up this opportunity and how long they will need to prepare an amended set of plans and elevations. Upon receipt of that advice, we will either issue a final decision affirming the Council's refusal if the Applicant does not wish to amend the plans or, if they do wish to take up the opportunity, we will issue further directions:
- Requiring the amended plans and a written explanation of the amendments made to be served on the Tribunal, the Council and the Respondents;
- Providing an opportunity for the Council and the Respondents to make further written submissions on the proposed amendments only; and
- Requiring all parties to advise in writing if they wish the Tribunal to convene a further hearing and, if so, why.
Upon receipt of the amended plans and elevations and all further written submissions, we will then determine if a further hearing is required. Ultimately, we will determine if the amendments are satisfactory (with or without a further hearing). If we find the amendments are satisfactory, we will order that a permit be granted subject to appropriate conditions. If we find the amendments are not satisfactory, we will order that the Council's decision to refuse to grant a permit be affirmed.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties

Cases Cited (1)

19-23 Cookson Street Camberwell v Boroondara CC [2008] VCAT 1347 (21 July 2008)