37 KR Developments Pty Ltd v Moonee Valley CC [2010] VCAT 1063

1. Mr Roger Priestley is joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The decision of the Responsible Authority is varied.
3. In permit application No. MV/20082/2009 a permit is granted and directed to be issued for the land at 31-37 Keilor Road, Essendon. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 11 November 2009 but with the following modifications:
   1. Delete Condition 1 a) and replace it with the following new condition:
      1. Delete the top level of the eight storey building (Building B).
   2. Delete Condition 1 b) and replace it with the following new condition:
      1. The southern façade of the lower building (Building A) provided in accordance with the revised design treatment as depicted on the south, west and east elevations (Revision C dated 30.04.10).
   3. Delete Condition 1c).
   4. Delete Condition 1g) and replace it with the following new condition:
      1. The second floor balconies that provide views to the first floor balconies to be fitted with a fixed shelf or 'lip' to prevent views to the balconies/habitable room windows below.
   5. Delete Condition 1h) and replace it with the following new condition:
      1. All vegetation depicted on the architectural plans and elevations is to be deleted.
   6. Delete Conditions 1o), 1s) and 1t).
   7. Delete Condition 1u) and replace it with the following new condition:
      1. Car spaces 18, 19 and 41 widened to 2.9 metres and car spaces 53-56 and 62-67 widened to 2.7 metres.
   8. In Condition 5, delete the first sentence and replace it with the following new sentence:
      1. Building or works must not be commenced (and trees or vegetation must not be removed) until a landscape plan, generally in accordance with the Landscape Concept Plan (Mela Pty Ltd dated 29/5/09), prepared by a suitably qualified and experienced person or firm has been submitted to and approved by the Responsible Authority.
   9. Delete Conditions 12 and 13.
   10. Delete Condition 23 and replace it with the following new condition:
       1. Prior to the commencement of the development a qualified acoustic engineer must prepare an acoustic report, and a copy must be submitted to and approved by the Responsible Authority, which details noise attenuation measures required to limit the transfer of unreasonable noise from Keilor Road to the dwellings facing Keilor Road.
   11. Delete Condition 26 and replace it with the following new condition:
       1. All stormwater runoff from the proposed development must be harvested and reused for the building's facilities including gardens to the satisfaction of the Responsible Authority.
   12. Retain Conditions 1f) and 1n).
   13. Renumber all retained conditions sequentially.

Ms Susan Brennan, Barrister by direct Brief. She called written and oral evidence from:

• Mr Stuart McGurn, Town Planner of Fulcrum Town Planners Pty Ltd;
• Mr Mark Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd; and
• Ms Charmaine Dunstan, Traffic Engineer of Traffix Group Pty Ltd.

No appearance as none of its conditions are being reviewed.

Mr Michael Deidun, Town Planner of CPG Australia Pty Ltd.

Construction of a three/four/eight storey building containing eight shops, 117 dwellings and 118 car spaces.

Section 80 Planning and Environment Act 1987.

Road in a Road Zone Category 1 (retail canopy extends into road reserve of Keilor Road).

I undertook a site inspection on the day following the hearing.

The review site is located on the southern side of Keilor Road and has frontages to Collins Street to the west and Queen Street to the south. It has an area of 2,819m2, frontages to Keilor Road of 51.8 metres, Collins Street of 72.69 metres and Queen Street of 29.64 metres. The site is used as an open, asphalted car yard with associated small scale buildings. The site to the east is occupied by a single storey IGA supermarket, and a hotel and other shops are located further east and around the corner into Mt Alexander Road. Dwellings are located on the south side of Queen Street and in Collins Street south of the strip of commercial properties facing Keilor Road. The vacant site on the south west corner of Keilor Road and Collins Street was a car dealership but has a current permit for a 5 storey mixed use building.

The review site is at the western edge of the North Essendon activity centre. A tram and several bus routes travel past the site in Keilor Road and two train stations are located approximately 1.2 and 1.5 kilometres away to the east and south east.

1. Council issued a Notice of Decision to Grant a Permit and the permit applicant sought to review 17 conditions or parts of conditions pursuant to Section 80 of the Planning and Environment Act 1987. Although there were 10 objections to the application none of the objectors sought to review Council's decision to support the proposal in a modified form.
2. In April 2010, the permit applicant's consultant circulated amended plans for a 7 storey building, with a covering letter which indicated that leave would be sought to substitute the amended plans. Council objected to any such request for substitution having regard to the principles set out in Pierrepoint Planning v Moyne SC[1] and Statewide Services Pty Ltd v Boroondara CC [2]. A later letter from the permit applicant's consultants dated 20 May 2010 indicated that the applicant intended to rely on the application plans and would not seek to substitute the amended plans.
3. However, in circulating the amended plans, notice was sent to CPG Australia Pty Ltd acting on behalf of Mr Roger Priestley who operates the IGA supermarket on the adjoining site to the east. By letter dated 6 May 2010, CPG Australia Pty Ltd advised that neither Mr Priestley nor CPG Australia Pty Ltd had received notice of the appeal against conditions, and they sought to be joined as a party. The sole issue of concern to Mr Priestley is the adequacy of car parking and, in the absence of any objection, I agreed to join him as a party to the proceeding.
4. For convenience, I have listed each of the conditions sought to be reviewed and provided comments on each, including for those where the applicant is no longer seeking to review the condition. Mr Priestley's major issue is the adequacy of on-site parking and the impact of overflow parking on the supermarket carpark next door. It primarily relates to the number of dwellings and hence to the number of levels that should be deleted from the northern building. I have therefore discussed these car parking issues under the following section dealing with Condition 1a).

Condition requiring the deletion of three levels - Condition 1a)

Do planning policies and the site context support a 5, 7 or 8 storey building?

1. The most contentious condition is the one deleting 3 levels from the 8 storey northern building (Building B). Council officers had recommended the deletion of one level but Councillors decided that three should be removed. Council officers had based their recommendation to remove one level on urban design advice they had sought and received from Hayball Architects. Hayball Architects noted that the precinct is in transition and that the review site provides an excellent opportunity for redevelopment. The urban design advice supported separation and distribution of the two buildings, did not support an 8 storey building but supported a 7 storey building with the top level recessed in setbacks and design.
2. North Essendon is identified as a major activity centre in Melbourne 2030 and is clustered around the intersection of Mount Alexander and Keilor Roads. The Mount Alexander road reserve is very wide and most of the commercial activity is focussed on the western side and in Keilor Road. It is a long established centre, many of the buildings date from the early to mid 20th century, and most are of one and two storeys in height. A Heritage Overlay recognises the age and character of these older buildings near the heart of the centre but it does not extend west along Keilor Road to the review site.
3. A structure plan has been prepared for the North Essendon Activity Centre and, although adopted by Council, has not yet been included in the Planning Scheme. The review site and other land along both sides of Keilor Road are designated on the Overall Structure Plan as 'intensify commercial area'. The review site is also specifically identified as suitable for a 'potential landmark building'. In terms of built form structure, the plan at page 27 of the Structure Plan suggests that most of the land along Keilor Road should be of 4 storeys but with a preferred maximum building height of 5 storeys within allocated landmark/gateway sites. The core of the centre around the Mt Alexander and Keilor Roads intersection is identified for 5+ storey development.
4. I consider that these suggested built form outcomes do not reflect the particular characteristics of the centre or the realistic development opportunities flowing from its designation as a major activity centre. While encouraging higher built form near the core with progressively lower buildings towards the edges may, in theory, seem to provide an acceptable transition to the surrounding lower scale residential areas, achieving higher densities near the core will be quite difficult because of the smaller lots, finer grain of development, older buildings and the existence of a Heritage Overlay. In contrast, the areas away from the core such as sites along Keilor Road are generally larger in size, often without older buildings that need to be retained and without any Heritage or other built form overlays. The proposed height limits therefore don't seem to make much sense having regard to what actually exists on the ground at North Essendon.
5. Amendment C90 introduced major changes to the Local Planning Policy Framework, including proposed Design and Development Overlays along Mt Alexander Road. The Panel reviewing the Amendment noted that it did not analyse the background relating to the proposed changes to building height (e.g. the Activity Centre Structure Plans) other than to consider their outcomes in relation to the Amendment. However, the North Essendon Activity Centre Structure Plan 2008 was discussed at some length by the Panel at pages 21-25 of its report. In its conclusion, the Panel noted a potential conflict between building heights designed to maintain a village feel and metropolitan policy seeking to increase development densities in and around activity centres of which taller buildings are a part. I agree that a potential conflict exists between metropolitan policy and local aspirations about built form outcomes. That conflict or tension is common for activity centres across Melbourne. Local policies invariably seek less intensive built form than is encouraged by activity centre policies in Clause 12. It seems that local communities often do not acknowledge or recognise that significant change has been a constant feature of our urban areas, and that further substantial change will continue into the future.
6. I consider that the designation of North Essendon as a major activity centre and the particular site characteristics encourage a higher built form than that suggested in the North Essendon Activity Centre Structure Plan. The review site is within a Business 1 Zone, is not affected by any overlays, has a large area, is unconstrained by existing heritage buildings, has three street frontages, has no direct abuttals or sensitive interfaces with existing residences, is on tram and bus routes, and is on the very edge of a vibrant commercial centre. As such, it has excellent access to a wide range of urban facilities and services.
7. Council's own expert advice from Hayball Architects was supportive of a 7 storey building - a position agreed to by the expert witnesses who gave evidence at the hearing. Amended plans and montages were circulated to provide an appreciation of what a 7 storey building would look like. The documents also depicted an alternative southern façade treatment in response to Council's request for a finer scale of window articulation (I discuss this alternative façade in the next section).
8. I have already noted that there are no direct abuttals to residential properties and, unlike many similar proposals at the edge of activity centres, there are no direct amenity impacts to existing dwellings because of excessive overshadowing, unreasonable overlooking, or unacceptable visual bulk due to inadequate setbacks or boundary walls that are too long or too high. I support the separation of the two buildings with the lower building to the south and the taller building to the north along Keilor Road.
9. I do not agree with Council that three levels should be removed but agree with Council Officers and the witnesses who appeared before me that one storey should be removed. The top level already has a somewhat 'organic' or 'fluid' form with setbacks to allow for the two roof decks. I am therefore not convinced that the top level should be provided with additional setbacks. I recognise that the building at 7 storeys will be quite visible and that it will serve as a marker to the North Essendon Activity Centre. However in time, that visibility will reduce as higher built form is constructed along Keilor Road, along Mt Alexander Road and elsewhere within the activity centre. That higher built form is already beginning to appear and will become more common in response to metropolitan policy and the need to provide more accommodation, employment and services for our burgeoning population.

Is car parking inadequate and does any shortfall justify fewer dwellings?

1. The development assessed by Council with an 8 storey northern building contained 117 dwellings, 8 shop/retail premises and 118 car spaces. The development comprising a 7 storey northern building retains the 8 shop/retail premises and the 118 car spaces but reduces the number of dwellings to 106. Council's Traffic Engineer supported the original proposal comprising 117 dwellings and considered that 118 spaces was an adequate number for both residential and commercial uses.
2. Mr Priestley, who operates the adjoining IGA supermarket to the east, supports Council's decision to delete three levels from the northern building and to the inclusion of a condition specifying 118 car spaces being provided on the site. I later discuss Condition 12 and the reasons why it should be deleted on the basis that the endorsed plans provide a means of ensuring that the requisite number of spaces is provided on site.
3. Ms Dunstan gave evidence on traffic and parking related issues and dealt with the specific concerns raised by Mr Deidun on behalf of Mr Priestley. In essence, Mr Deidun submits that based on an empirical analysis there is a shortfall of 29 spaces for an 8 storey building, 17 for a 7 storey building and an oversupply of 1 for a 5 storey building. (See the table on page 5 of his submission). The adjoining supermarket has an off street carpark for 65 vehicles and Mr Priestley is concerned that any shortfall from the development on the review site will result in the supermarket car parking being used for that shortfall to the detriment of his customers. As part of her evidence statement, Ms Dunstan provided a review of car parking conditions including car park demands at the IGA supermarket. She acknowledged that the proposed development may result in a peak overflow of up to 29 vehicles (peak demand of 147 minus the 118 spaces provided). Removal of one floor would reduce the overflow to a maximum of 17 as suggested by Mr Deidun. Despite this shortfall Ms Dunstan is confident that sufficient on-street parking exists in the area without any reliance on the supermarket car parking. In principle, I agree with her and note that 17 spaces will be available along the review site's three frontages to cater for this overflow. I recognise that these spaces are not for the exclusive use of this development and that some spill-over to other on-street parking will occur. It may also occur into the supermarket car park given its close proximity to the site. If that involves long term resident or visitor parking, then I agree with Mr Priestley it is an unacceptable situation. However, preventing longer term parking in the supermarket car park can be overcome by imposing and enforcing parking restrictions - something I understand has occurred in the past but is not at present being enforced. It may need resurrection if longer term parking becomes a problem.
4. There is always a possibility of the supermarket car park being used for short term parking, but I do not accept that the development on the review site should be scaled back in size just in case there is some overflow parking in the supermarket car park. In the absence of any parking controls, that always remains a possibility. The critical fact remains that there is no need for the proposed development to rely on the supermarket carpark to meet the peak overflow of 17 car spaces.
5. Although not critical to my decision to accept the amount of car parking proposed, I also note that providing additional dwellings so close to the supermarket will mean that customer numbers can increase without any commensurate increase in parking demand. That seems a positive outcome for the supermarket, even in the unlikely event of some short term parking occurring within the supermarket car park.
6. Having regard to all these matters, I will therefore amend condition 1a) to require the deletion of only one level from the northern building (Building B).

Condition requiring a finer scale of window articulation on the southern façade - Condition 1b)

1. I agree with Messrs Rothe and Sheppard that the revised banding and other changes along the southern interface are an acceptable response to the site context. The site is at a zone interface and it is not unreasonable to expect any new building in the Business 1 Zone to have a commercial looking appearance. In this case, the southern building has a three storey height with dwellings and balconies facing Queen Street. It clearly has a different appearance to the existing dwellings to the south and south west which are older dwellings located on individual lots. Because of this very different character, I do not agree with Council that the new building of necessity needs to have a finer scale of window articulation to better integrate with the residential scale of articulation in adjacent dwellings. Nevertheless, I accept that the revised elevation with additional banding does provide a more interesting façade, although not necessarily one with a finer scale of window openings. As such, I consider it an acceptable response and will therefore amend Condition 1b) to refer to the treatment shown on the amended plans and elevations.

Condition requiring wider and larger balconies - Condition 1c)

1. Council seems to have taken different approaches to the size of balconies in these taller residential developments throughout the municipality. In a very recent proposal at 1003 Mt Alexander Road (an application to amend an approved 5 storey mixed use development to a 6 storey residential development), Council accepted balconies of a similar size to those proposed here.
2. In an apartment style development such as this it is not possible to orientate all balconies to the north and some of those on the south side of both buildings are unable to receive good solar access. Although Council was critical of the size of balconies, I note that of the 106 dwellings included in the 7 storey proposal, 34 are less than 8m2 in area but all but 9 of those are 5, 6 or 7m2 in area. Local policy at Clause 22.13-10 suggests balconies have a minimum area of 8m2 and a minimum width of 2 metres, but I agree with Mr McGurn that the development has achieved the related objective that private open space is functional, safe, solar orientated, well ventilated and meets the needs of residents.
3. I note that the Guidelines for Higher Density Residential Development recognise that smaller and narrower balconies are likely in taller apartment buildings. I also note that the amount of communal open space within a development and proximity to public parks and recreation areas has a bearing on whether small areas of private open space are considered adequate to meet the needs of residents.
4. In this case the development includes a very substantial area of communal open space between the two buildings and there are two roof top decks on top of the northern building. In addition, the site is within walking distance of public parkland, including Thompson Reserve, Lincoln Park, Woodlands Park and Buckley Park.
5. I consider that the combination of communal and private open space within the development, together with the proximity to existing public reserves, provides residents with many options to meet their needs for open space.

Condition requiring external storage for each dwelling - Condition 1f)

1. External storage can be provided for each dwelling and the condition is no longer in dispute. I will retain the condition.

Condition requiring screening of second floor balconies - Conditions 1g)

1. Condition 1g) is designed to prevent unreasonable overlooking into other dwellings in the development. Protection of amenity and privacy between dwellings is important and the condition should be retained although reworded as discussed at the hearing.

Condition requiring the provision of street trees - Condition 1h)

1. Condition 5 includes reference to street trees. I agree with Council that a consistent approach should be taken towards showing vegetation on the architectural plans. Some vegetation is shown on elevations but is not shown on the ground level or terrace level plans.
2. I find there is no benefit in showing only some vegetation on the architectural plans. I will therefore reword this condition to require the deletion of all vegetation from the architectural plans.

Condition requiring laundry facilities - Condition 1n)

1. Laundry facilities have been provided for all but a few dwellings and it was agreed by Mr Rothe that where these have been omitted it is an oversight. Although a relatively minor issue, I will retain the condition.

Conditions requiring changes to car park dimensions - Condition 1o) and 1u)

1. The changes sought by Conditions 1o) and 1u) are a duplication and Council agrees that one of them should be deleted. Ms Dunstan agrees with Council that car spaces 18, 19 and 41 should be widened to 2.9 metres and car spaces 53-56 and 62-67 widened to 2.7 metres. I am satisfied that these changes deal with the concerns raised by Council's traffic engineer and will amend Condition 1u) accordingly.

Condition requiring changes to over bonnet storage areas - Condition 1s)

1. I consider that this requirement for all over bonnet storage areas to be located a least 2.1 metres above the basement floor area is impractical. Not only is the headroom so low that there would be virtually no space between the base of the storage area and the top of the basement, but it would be virtually impossible for someone to reach up and put something in the storage area without using a ladder. I agree with Ms Dunstan that over bonnet storage units are common and that they are designed so that vehicles must 'nose-in' to the car spaces. I do not accept that the use of such units is a major impediment to the parking of vehicles. I will delete this condition.

Condition requiring a driveway mirror - Condition 1t)

1. The provision of a mirror is agreed to by Ms Dunstan and is an appropriate condition. The requirement for a mirror is duplicated by Condition 1q) which was not appealed. It is therefore necessary to delete condition 1t).

Condition requiring the provision of a landscape plan - Condition 5

1. The primary issue in dispute is that the condition does not acknowledge that a landscape plan has been prepared. I will retain the condition but reword it to make reference to the Memla Landscape Plan. Although some of the items listed in 5a) to 5f), 5h) and 5n) are already shown on plan, they provide a checklist of what Council is seeking.

Conditions requiring the provision of 118 car spaces and 144 bicycle spaces - Conditions 12 and 13

1. I do not agree with Council that there is any need to specify the number of car and bicycle spaces. The plans which are to be endorsed show the correct number of spaces and the plans cannot be altered or modified without Council's further written consent.
2. Ms Dunstan's analysis suggests that car parking allocation for the original 8 storey development was as follows:
   1. Retail premises - total 9 spaces (1 per the seven small tenancies and 2 for the larger tenancy).
   2. 1 bedroom dwellings - total 12 spaces (0.5 spaces per dwelling).
   3. 2 or more bedroom dwellings - total 93 spaces (2 spaces per dwelling).
   4. Visitor/customer spaces - total 4 spaces
3. Removing one floor deletes 11 dwellings. While I am not suggesting that car spaces be removed to retain these allocation rates, deletion of one floor does provide more flexibility in how the available spaces are allocated. The widening of spaces required by Condition 1u) may also mean a reduction in one or two spaces, but even if the total number drops slightly, sufficient parking is still being provided to achieve the allocation referred to above.
4. I note that Council's traffic engineer accepted the amount of on-site parking provided with the eight storey building. My decision to support removal of one level rather than three from the taller building will result in a different car parking rate for each dwelling. Although I am not advocating such an outcome, removal of one level from the taller building may mean that fewer car spaces need to be provided. Specification of an exact number of car and bicycle spaces in the permit conditions would remove the flexibility for Council to consider changes using the secondary consent provision in Condition 2. Although Council appears to be concerned about possible future reductions in car parking using the secondary consent mechanism, I am not convinced that any such changes go beyond the ambit of the secondary consent mechanism as suggested in paragraph 126 of Council's submission, or that there is a need to rule out any such consideration at some future time.

Condition requiring the provision of an acoustic report - Condition 23

1. I agree with Mr McGurn that the transfer of internal noise within the building is covered under the Building Code of Australia. This point was acknowledged in Council's submission. While I accept that many permit conditions 'double up' controls under other legislation (such as, for example, compliance with SEPP N-1 or N-2), I do not agree that there is a necessity to require an acoustic report for noise transmission within the building. I will therefore modify the condition to only include part c).

Condition requiring the harvesting of stormwater - Condition 26

1. There seemed to be some confusion at the hearing as to whether the permit applicant still sought to review this condition. It is my understanding that the documentation accompanying the permit application included stormwater harvesting and reuse within the building. I consider it unnecessary to specify exactly how stormwater runoff is to be harvested and will instead simplify the condition by making any proposals subject to the Responsible Authority's satisfaction.

1. Having regard to the above, I will vary Council's decision by directing that a permit issue with the changes set out in my order.

[1] Pierrepoint Planning v Moyne SC [2010] VCAT 2494

[2] Statewide Services Pty Ltd v Boroondara CC (includes Summary) (Red Dot) [2010] VCAT 180