Abacus Funds Managament v Bayside CC [2006] VCAT 1869

Abacus Funds Managament v Bayside CC [2006] VCAT 1869 | Case summary | Zoe

[7]

1

Before the use and/or development starts three copies of revised plans drawn to scale and dimensioned must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans considered and substituted by the Tribunal in Application for Review P752/2006 but modified to show to the satisfaction of the responsible authority:

(a)

The creation of a break in the apartment building roof (in the wing parallel to Beach Road) by raking the roof form away from either side of units 65 and 77 adjacent to the void over the main building entry. The pitch of the raked portions is to be generally consistent with the prevailing roof pitch. The roof form is to be designed to ensure any roof top plant behind remains hidden from view from surrounding land. Any consequential modifications to the internal floor layout and floating glass panel are to be shown.

(b)

The height of the apartment building lowered by 1m to RL16.6m.

(c)

The use of varied materials and finishes or other appropriate techniques to introduce greater articulation to the upper portion of the two storey walls of Units 47 and 48 that face No. 14 Beach Road.

(d)

The provision of appropriate screening measures in accordance with ResCode Standard B22 from the balconies and/or windows of Units 14, 17, 42, 47, 48, 58, 68, 69 and 72 which are within 9m of neighbouring residential properties. As an alternative to Standard B22, the applicant may demonstrate that balcony planter boxes and the floating glass panel are designed to limit overlooking into neighbouring land.

(e)

The conversion of Units 3, 4, 7, 8, 11 and 12 to double storey/mezzanine style apartments with living spaces provided at ground level for direct courtyard access.

(f)

The floor type to be constructed and finished floor levels to AHD confirming that no part of the finished ground floor level exceeds 1200mm above natural ground measured directly below.

(g)

All wall heights above ground level to be nominated on the plans.

(h)

All paving (except driveways and over the basement) to be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the responsible authority.

(i)

A schedule of all external materials and finishes to be provided to the satisfaction of the responsible authority prior to the commencement of any buildings and works on the land. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof fascias, window frames and paving (including car park surfacing). The use of a dark colour for the apartment roof is to be avoided.

(j)

Deletion of apartment 57.

(k)

All plant and equipment (including air conditioning units, heating units, hotwater systems, etc) which is proposed to be located externally shall be identified on the plans and located to the satisfaction of the responsible authority. Such equipment should be located away from bedrooms of adjoining properties.

(l)

The plans to show the dimensions of all car spaces, aisles, ramps and accessways including widening of car space No.'s 27 and 34 to 3m.

(m)

Visitor parking within the apartment basement at the rate of 0.2 spaces per dwelling in a common area, including at least one (1) standard size disabled space closest to the lifts.

(n)

The plans to show at least one (1) car space to be allocated to each two (2) bedroom dwelling. Where 2 spaces are allocated to these dwellings, tandem spaces are to be allocated. All other units with more than 2 bedrooms (or with at least two bedrooms and a study) are to be allocated a minimum of 2 car spaces each.

(o)

The plans to show all car spaces consecutively numbered.

(p)

The porte cochere to show a headroom clearance of 4.5m.

(q)

The plans to show the inclusion of sight triangles as per AS/NZ 2890.1-2004 on the east side of the apartment complex ramp and 1.5m x 1m on the east side of the townhouse ramp to the satisfaction of the responsible authority.

(r)

The plans to show a redesign of the area in the vicinity of the bottom of the ramp to the apartment basement car park to provide a 'T' intersection with adequate sight lines to the satisfaction of the responsible authority.

(s)

The plans to show the provision of a convex mirror on the wall opposite the bottom of the vehicle ramp to the townhouses to the satisfaction of the responsible authority.

(t)

Details of the means by which the car parking areas are to be secured, the times when security doors at the basement entries are to be opened for visitor access and the provision of appropriate space for access control equipment clear to the ramps and accessways to be shown on the plans.

(u)

Details of acoustic measures for apartments in close proximity to the railway reserve, such as fencing and glazing treatments, in accordance with the recommendations of a qualified acoustic engineer.

(v)

The pedestrian walkway on the east side of the townhouses widened to 1.5m to allow for landscaping and pathway lighting.

(w)

The provision of at least 9 bicycle parking spaces accessible to visitors.

[80]

1 This case concerns a proposal for the construction of a substantial residential development comprising 77 apartments and 6 townhouses at the former site of the Hampton Rehabilitation Hospital opposite the beach on the corner of Beach Road and Orlando Streets in Hampton.

2 The development is two-storeys above ground level and the apartment building has a pitched roof. The Bayside planning scheme imposes height controls over the site and other nearby properties.[1] Some apartments are proposed within the roof space, raising a key question as to whether this element is truly an attic and therefore whether the development complies with the planning scheme controls. The overall scale, siting and appearance of the development and in particular its visual impact on the foreshore and Bay are other important issues under consideration. Given the site's location within a residential setting, the development's impacts upon surrounding neighbours is also a significant issue.

3 Existing buildings on the site are to be demolished - including a former Victorian Italianate villa known as "Edgecliff". This building is subject to heritage controls raising a further issue as to whether its demolition should be permitted.

4 The land is also affected by localised overland stormwater flows[2] and this circumstance has given rise to concerns about the development's potential to disperse stormwater onto neighbouring land. The design of car park basements and some apartments excavated into the site are further matters requiring consideration.

5 Car parking for 155 cars is proposed and these are to be accessed from Orlando Street. Other key questions are whether the number of carparking spaces will be adequate and whether and unreasonable increase in traffic will occur.

6 There were 45 objections to the development and Council subsequently decided to refuse the grant of a permit citing 11 grounds.

7 Abacus Funds Management and Hitchbar Pty Ltd are now seeking a review[3] of the Council's decision to refuse their permit application.[4]

[89]

24 The apartment building generally runs parallel to Beach Road with several attached wings behind arranged around four internal courtyards. Two circular open space nodes are proposed within the building's principal axis containing lifts and stairs. Voids are provided around these areas which are to be landscaped.

25 From the street, the building has the appearance of a two-storey structure with a pitched roof. As we have mentioned, dwellings (thirteen) are proposed within the roof space of the building in an attic style - a matter to which we will return. There are also 12 dwellings (Units 1 to 12) which have been excavated into the ground and which face onto sunken courtyards on the north and west sides of the site. Five of these are set over two levels.

26 All other apartments are on a single level except for except for Units 29, 30, 31, 33 and 36.

27 In total, the apartments comprise 38 two-bedroom units, 11 two-bedroom units and a study; 23 three-bedroom units and 5 three-bedroom units and a study. They range in size from 95sq.m to 231sq.m and are each provided with either a ground level courtyard space, balcony or terrace.

28 An elliptical shaped porte-cochere structure is proposed at the main entry in Beach Road designed to allow one-way vehicle access. Primary vehicle access to the basement carpark, which contains 155 spaces, is proposed from Orlando Street. The basement also accommodates storage facilities and recreational facilities including a pool and gymnasium.

29 The apartments have an overall height ranging from 11.8m to 13.4m with setbacks to Beach Road of between 6.3m and 10m. Setbacks from No. 14 Beach Road are a minimum of 4.4m and from 98 Orlando Street, 5.4m.

30 Architectural features include a colonnade treatment around the façade and a continuous glass band at first floor level which sits proud of balconies. A glazed shading device also projects from the eave line and openable shutters are proposed to balconies. External finishes and materials include the use of green tinted glass, white cement render to walls and copper finish metal decking to the roof.

31 Landscaping throughout the site is proposed.

[122]

64 Mr Stokans submitted that we should have regard to amendment C52 in interpreting the meaning of 'attic' under the present planning scheme as a seriously entertained planning policy. In support of this submission he referred to Lyndale and Black Pty Ltd v MMBW[15], Teston Investments Pty Ltd v MMBW[16] and Burns Bridge Services Pty Ltd v Greater Bendigo CC [17].

65 Mr Pitt submitted to the contrary that an 'attic' under the DDO1 should not be defined by reference to an amendment proposed to the planning scheme, but must be construed having regard to the terms of the planning scheme as it is at the date of the Tribunal's decision. He submitted that it is the expressed purpose of the amendment to change and restrict the effect of the existing provisions.

66 One week after the hearing, Council's solicitors by letter dated 21 July 2006 (copied to the other parties) advised that Council had now deferred amendment C52 to enable re-exhibition of the amendment consistent with the authorisation from the Minister of Planning as proposed in Council's resolution of 22 August 2005. The letter stated that the amendment as exhibited did not reflect the Council's resolution upon which the Minister's authorisation was based, and that lists of factors indicative of 'attic' and 'storey' were accidentally excluded from the exhibited document. The letter explains that the copy of the amendment produced to the Tribunal was not the one adopted by Council and authorised by the Minister for exhibition. Evidently, the correct version would now need to be exhibited prior to the Council making a formal decision on submissions and request for a panel.

67 In the circumstances we find the amendment cannot be regarded as a seriously entertained planning proposal as the process of exhibition has to start again. Also we agree with Mr Pitt that a proposed amendment should not affect the interpretation of a mandatory provision in the planning scheme which cannot be varied by a permit. That must be interpreted by the ordinary meaning of the words in the planning scheme at the date of the Tribunal's decision. A seriously entertained planning amendment is relevant where a discretion is to be exercised.

68 We comment in passing that the amendment may create more problems than it is intended to solve. It deletes the important DDO1 requirement that:

[124]

69 Indeed the example of recessed windows tendered as unacceptable appeared to us, when physically viewed in context, as entirely appropriate, and the Tribunal is aware of other good examples. Its exclusion of attics 'not immediately enclosed by vertical external walls' ignores a common and longstanding neighbourhood feature of attics with gable ends including windows. It introduces a concept that the attic must be used for a purpose which services other space in the building, which is not relevant to DDO1's purpose of regulating the appearance of the building from the foreshore and its height irrespective of internal use. In our view the amendment will further complicate an already difficult matter.

70 Mr Stokans relied on 2 NSW decisions in Wunsch v Rochdale City Council[18] and Carey v North Sydney Council[19].

71 These decisions are not really directly applicable to the present situation because in each case the relevant planning control contained definitions of 'storey' different from that in clause 72, and additional limitations of when an attic is not to be counted as a storey. For example, it must not be able to be used as a separate dwelling and must not be a habitable space immediately enclosed by external walls.

72 Wunsch is relevant only in that and the argument centred around the words in the definition of 'attic' - 'confined wholly within the roof pitch'. The court decided that 'it was open for the council to determine that the roof pitch is a reference to the line of the angle of the roof so far as the roof physically extends', and was satisfied that the plans demonstrate what the upper level of the proposed units can reasonably be regarded as an attic and not as a storey.

73 We consider the statutory variations in the definition of 'attic' described in Wunsch from its ordinary meaning (namely the exclusion of vertical walls and of connectivity with levels below) are not applicable to the Bayside Planning Scheme and this case. We also agree with Mr Pitt that this definition reinforces the conclusion that the ordinary use of the word excludes the statutory variations.

74 Also, the court in Wunsch took a purposive approach in interpreting the control, by taking into account the objectives of the zone of maintaining an appearance of low density housing comprising a single storey, which it considered was achieved in the case of an attic by requiring it be effectively subsumed into the roof structure, thereby not giving the impression of a double storey building.

75 Mr Stokans also relied on Carey as indicating that recessed windows are not within the ordinary meaning of 'attic'. However a close reading of the case shows it turned on a definition of 'storey' which regulated maximum roof pitch and defined it as 'any floor or part of a floor'. 'Attic' was not defined, and the court relied on the Macquarie Dictionary. The court found that the recessed balconies to each of the dwellings were not attics as they were not 'contained wholly within the roof space' since the balconies are not roofed at all, but were storeys because they were part of a floor.

76 This finding is not applicable in this case because the definition of 'storey' in clause 72 is different as it refers to 'that part of a building between floor levels' and 'if there is no floor above, it is the part between the floor level and the ceiling'.

77 Thus in this case the terraces to the upper level apartments are not 'storeys' under clause 72 as they have no roofs or ceilings, and in any case DDO1, clause 2.0, specifically provides that any windows in an attic roof 'must be mounted flush to the roof, recessed [emphasis ours] or of minimal dimensions', which has the necessary consequence that there be an area in front of the recessed window which is not roofed and may be a terrace or treated in some other way.

78 The Tribunal in Martino v Moonee Valley City Council[20] rejected 2 double storey dwellings, both in 'attic' style, on the merits as not complying with neighbourhood character because of an uncharacteristic 25 degree steep roof pitch, the amount of roof mass and a wall of roof sheeting. The member's basis of decision was that she found the design did not convey a single storey appearance, but clearly two storey buildings. No legal or definitional issue like the one before us was in question.

79 Mr Stokans also relied extensively on Chernov v Bayside City Council[21] which considered the 'attic' issue under Bayside's DDO1. A section plan from that case was produced.

80 The Tribunal at [87] adopted the meaning of attic as:

[132]

•

Considering the mass and scale of the built form, we find that the upper level under the roof appears as an attic and that the roof is in a form characteristic of the area, irrespective of whether there is accommodation within it.

•

Considering the purposive approach, we find that the upper level will appear from the foreshore as an attic roof form, rather than as a third storey, particularly when incorporating modifications we propose to make to the roof form at the Beach Road frontage - a matter to which we will return.

•

The upper level dwellings are wholly within the roof form and no part falls outside the typical roof alignment, and the inclusion of habitable space within the roof has not added to the dimensions of the roof or increased the mass and scale of the built form beyond what would be normally required in a roof of the two storey part of the dwellings.

•

The inclusion of lift access is not determinative, as it was in Chernov, as the lift structure is not visible from outside the building.

•

That the attic level apartments are dwellings without connectivity to lower floors is not relevant to the issue.

•

Unlike the decision in Chernov we find the relationship of the height and floor area of the upper level in relation to the whole building acceptable. The building will be a very large building on a large site and the attic level is of a floor area and dimensions appropriately proportionate to the whole.

•

The windows in the upper level are recessed consistent with the specific allowance for recessed windows in DDO1.

•

The terraces in front of the recessed windows are not storeys for the reasons discussed above as they have no floor above and no ceiling.

•

Mr Douglas's evidence was that the vertical planes opening to the upper level terraces were all sliding glass doors or windows and are not walls. We find they comply with this requirement and that Carey has no application to the meaning of 'attic' in this proposal.

•

The details of the attic roof are consistent with the typical roof details of the surrounding neighbourhood in terms of roof pitch and form.

[145]

101 A floor plan of Edgecliff in Mr Raworth's report shows the walls from the original constructed compared with the present structure. It depicts how little remains of the original. Indeed in our view apart from the front bay windows, some eave detail and the reclad altered roof form, the present building is but a faint echo of the past.

102 In assessing its significance Mr Raworth acknowledged the work in Allom Lovell & Associates' appraisal but concluded it is apparent the integrity of the original house has been severely compromised by the loss of much of its original fabric and at best it can only be considered to be a representative, albeit much altered example of a Victorian Italianate villa.

103 Whilst it was one of the few substantial Victorian residences remaining along Beach Road, he noted that in Hampton and Sandringham there were a number of examples of Victorian villas of greater intactness and integrity, and he listed about 18 in the vicinity with more beyond.

104 He acknowledged the use of the site as a children's convalescent home between 1910 and 1959 is notable part of the place's history but there is no remaining fabric that demonstrates this in any meaningful way. Likewise, he found the later use of the site as a rehabilitation hospital was only of some interest.

105 He believed Edgecliff is only of minor local interest, possesses a very low degree of integrity and did not warrant its current heritage overlay status.

106 Mr Raworth also noted that the site was neither within a significant streetscape nor within a heritage overlay identified for a broader precinct or area. He agreed with Allom Lovell & Associates that the building has been so defaced and compromised that it is questionable whether reconstruction is practicable or feasible. We would agree with that view. As the architectural integrity is so severely compromised we agree with his conclusion that reconstruction effectively requires the rebuilding of much of the house and introduction of a great amount of modern fabric. The present alterations are not largely reversible.

107 We find there is not a strong argument for retention and reconstruction of the subject building, and that given its relatively low interest, demolition would effectively extinguish the relevance of the heritage overlay. On this basis the design of any new buildings would not be a heritage issue.

108 We agree that an appropriate response would be for Council to require an archival quality photographic survey for lodgement with the local historical society prior to demolition.

[149]

111 The Council and objectors argued that the apartment building would be too high, too big and excessively bulky. Particular concerns were raised about the overall height of the building which reaches 13.4m, more than 4m greater than the ResCode standard of 9m. Mr Disney provided us with various photographs taken from various vantage points around the foreshore opposite and from the bay, contending that the apartments would be highly exposed and too dominant from these locations.

112 Parties opposed to the proposal also expressed concerned with the continuous roof form and façade treatment of the apartment building - particularly at the Beach Road frontage. Front setbacks were said to be inadequate in the context of surrounding development and because of the large scale and height of the proposed building. This was one of Mr Robinson's key arguments. It was Mr Czarny's evidence that the roof form should be broken up and that the front façade of the building should be substantially recessed on either side of the front entry to create greater vertical expression.

113 While generating less concern than the apartment building, Mr Czarny expressed concerns with the elevated floor level of the townhouses. It was contended that the gap between them for the basement ramps would also expose the mass of the apartments when viewed from Orlando Street while opening up oblique side wall views of the townhouses.

114 Before turning to our assessment of these issues, it is necessary to set the scene as to the site's strategic significance and therefore the implications for the design response.

115 This is a very large site about 500m away from the vibrant Hampton Street activity centre, with main road frontage in an established urban area. It is located between two railway stations, with Hampton the closest about 500m away. The site has only three residential abuttals, one of which is relatively minor. The site's proximity to the foreshore and Port Phillip Bay are favourable attributes that contribute to the desirability of this setting as a place to live whilst also offering a range of recreational opportunities.

116 The subject land is also identified as a site capable of accommodating more than 10 dwellings in the "Urban Development Program Report 2005 November 2005" prepared by the Department of Sustainability and Environment.

117 Given these attributes, we accept the evidence of Mr Govenlock that the site enjoys considerable strategic support for a major redevelopment. That is, we regard the site as having the hallmarks of a strategic redevelopment site. The encouragement of new housing on such sites is one of the strategies under Clause 12.01-2 of the planning scheme that seek to give effect to urban consolidation and housing diversity directions under Melbourne 2030.

118 Importantly, Council's own local policies provide strong strategic support for increased housing densities on this and nearby land.

119 Clause 21.04-3 makes reference to a Strategic Framework Plan which includes the site within a 'Residential Opportunity' area while the nearby Hampton Street shopping strip is identified as a 'Community Level Centre'.

120 One of the housing objectives at Clause 21.05-3 is:

[156]

125 Following our inspection and viewing of the site from various vantage points along the foreshore, we make the following observations.

126 At street level, there is a shared pedestrian / bike path. The proposed building will be highly exposed from this path. There is a second unsealed walking/jogging path behind the first. Depending on the height of landscaping between the two paths, development on the opposite side of Beach Road is subject to varying degrees of exposure. There is a third concrete path at a lower level. It sits below a landscaped embankment. While some distant oblique views to the Hampton hotel are possible, development in the immediate area is fully screened from view, including existing buildings on the review site. The landscaping arrangements create a sense of seclusion and remoteness when one travels along this path. Then, as one heads onto the beach and out onto the rock groyne (and bay), more distant views of development open up.

127 It was Mr Douglas's evidence that the development would be respectful of the costal conditions and would not be intrusive when viewed from these various vantage points. He contended that the horizontal form of the building responds to the landform of the coast - embodied in the continuous treatment of the roof form and floating glass band along the façade. Mr Douglas also referred to the colonnade feature as providing appropriate vertical expression to the façade.

128 Mr Pitt submitted that the building would be prominent but not unreasonably dominant. He also relied upon the evidence of Mr Govenlock who asserted that such a response would be acceptable when one considers the size of the site and other significant sites with landmark quality buildings along the coast such as the Hampton hotel.

129 In principle, we accept the applicant's arguments that a development on this site which, as we have found, is a strategic redevelopment site will inevitably have an obvious presence.

130 With some modifications that we will discuss shortly, we are satisfied that the apartment building's presence will not in broad terms, be unreasonable when viewed from Beach Road itself, the bike path at the same level as the road or the unsealed jogging/walking behind. One's experience of the building will be a dynamic rather than static one when travelling along these routes. From these locations, we agree with Mr Douglas's evidence that the colonnade treatment, movable sun screens to balconies and angling of the two corner elements of the building will offer an acceptable degree of relief to the façade and assist in creating perceptible vertical expression. From more other coastal vantage points such as the groyne and bay itself, we think distance will play an important part in mediating its scale and presence.

131 Overall, we therefore think that the architectural expression of the building's facade is well conceived. In particular we think the use of the floating glass panel with its curved form together with the projecting glazed element at the eave line above will also assist in creating a visually interesting building which makes a positive contribution to this part of Beach Road.

132 We do however have some reservations about the uninterrupted roof form and the overall building height. While we accept that new development ought not seek to literally replicate the design of surrounding buildings, the space between buildings and roof forms is an established characteristic of development in this area. We are also mindful of Council's policies such as those at Clause 21.05-3 which seek to:

[158]

133 Although we have found that the vertical expression of the façade is acceptable, we think the unbroken treatment of the roof is not. We consider its uninterrupted 50m length would have an excessively bulky appearance and would be uncharacteristic of the mass of existing roof forms in the locality. From our inspection we observed that the former Hampton hotel building - one of the largest buildings nearby - has a length of about 36m and there are definite gaps between the roof forms of existing dwellings along Beach Road. Although one objective of the DDO1 is to relate the scale and form of any development to the land form of the coast, we think it equally important that the roof form be designed to minimise rather than accentuate its bulk and presence while also responding to the pattern and form of surrounding development. That objective is common enough and is a relevant matter for consideration in neighbourhood character and detailed design terms under ResCode and planning scheme policies.

134 We have therefore come to the view that there should be a centrally located break in the roof. We consider that the modified roof design described by Mr Douglas would achieve an acceptable outcome that would address our concerns with this element of the design. This modification would involve raking the roof form away from either side of units 65 and 77 adjacent to the void over the main building entry. We anticipate that this may involve consequential internal modifications to these and possibly neighbouring units. From Mr Douglas's evidence, we understand that the floating glass panel could be wrapped around the corners of this central void space rather than continuing along the main façade. This however is a matter of detailed design which we think is best left to the architect's hand.

135 We also consider that the colour of the roof ought to be light in appearance to assist in minimising its visual impact. The plans indicate the use of "copper finish metal decking" which may be an appropriate response but this will ultimately require confirmation with the provision of a sample to the Council for its approval. Our conditions will reflect these findings.

136 Turning now to the question of the apartment building's height, we think it necessary to require its lowering. We have formed this view for a number of reasons. The existing height of the building fronting Beach Road is approximately l0m above ground level. The building would extend about 3.4m higher than this and approximately 4m higher than the highest point of the dwelling at No. 14 Beach Road. We think the building height would be excessive taken in the context of existing and neighbouring building heights and when viewed from the foreshore. In particular, we have concerns about the building's visual impact when viewed from the beach itself and from the more secluded environs of the third and adjacent (sealed) path - the latter from which buildings are presently not immediately visible.

137 We do not think lowering the building to 10.5m as suggested by Mr Stokans would however be reasonable. This would result in the loss of one level of the building which we think that on balance is unwarranted taking into account the strategic significance of the site. We are also mindful that Mr Czarny, under cross-examination by Mr Pitt, agreed that wall heights are comparable to the height of other buildings in the area. We also agree. Consequently, we think a height reduction by 1m would satisfactorily address our concerns.

138 To achieve our required modification we envisage that a combination of techniques may be used, including lowering the basement floor level by up to 0.5m and a reduction in floor to ceiling heights which are presently 3m.

139 For pedestrians moving along the site frontage, we are satisfied that the development would not be overwhelming in scale or appearance. We consider that the front setbacks of the building are comparable to much of the development along Beach Road. Setbacks to walls of the apartment building vary from a minimum of 6.3m on the corners increasing to 10m within the central portion. Although raised decks are partially proposed within the front setback area we are confident that Mr Eckersley's landscaping proposals will provide an appropriate softening of this area that will enhance the pedestrian experience. At the point nearest the dwelling at No. 14 Beach Road, the south-west wing of the building is setback more than l9m, given its angled design. We think that this setback provides a sensitive transition between this neighbouring dwelling and the lesser setbacks of the proposal further south-east.

140 Despite concerns expressed by Mr Stokans and Mr Robinson, we are not troubled by the presence of the glass floating panel at first floor level which sits forward of the main façade. This band of glazing will be well above the eye level of the pedestrian and is to have a light weight appearance. We think adequate space is available for the planting of canopy trees around this element. As we have mentioned, we consider this glazed element to be an integral part of the design that will create a sense of overall design cohesion whilst adding visual interest to the façade. It should be retained.

141 Nor are we troubled by the proposed porte-cochere. It also will have a light weight appearance and would not read as a hostile element at pedestrian level. During our inspection we also observed a group of street trees which will substantially mask this element from the opposite side of Beach Road.

142 In Orlando Avenue, we consider that the development would not have unreasonable visual impacts upon the streetscape or from residential properties opposite. This interface is presently characterised by high fencing and buildings that are utilitarian in appearance - features that in our view, detract from the appearance of the street.

143 The apartments in the south-west corner and townhouses further east are designed to address the street and will make a positive contribution to it. Although the apartments in the south-west corner face Orlando Street, the angled lot and street configuration accentuate the relationship of this part of the development with Beach Road rather than Orlando Street or the substantial 2-3 storey dwelling on the opposite corner. An appropriate transition in setbacks from the corner to the nearest dwelling at No. 98 Orlando Street is also provided.

144 Further east, the larger form of the apartment building also sits well behind and would be largely masked by the townhouses in the foreground. Given that the setback to the eastern wing of the apartments is primarily 38m from Orlando Street, we are satisfied that this element of the development will not be unreasonably intrusive when viewed from Orlando Street.

145 Although surrounding development is somewhat mixed, examples of substantial two-storey dwellings are not uncommon. We consider that the townhouses have been well designed with their contemporary styling, articulated facades and design detailing. They are designed to reflect the finer grain pattern and appearance of existing dwellings nearby.

146 We do not think the presence of the two double cross-overs providing access to the basement carparks will adversely impact on the streetscape. Three cross-overs presently exist, the width of the frontage is substantial at 86m and the new cross-overs are located opposite a high perimeter fence of the dwelling at No. 16 Beach Road. Adequate scope exists for landscaping between the cross-overs. Thus, we find this aspect of the design to be acceptable.

[159]

147 Ms Davis acting for Mr Stankovic, the owner of No. 14 Beach Road and two adjoining lots, submitted that the development would have an imposing and oppressive impact, especially when viewed from the rooftop deck of Mr Stankovic's home. It was also contended that the apartments would assume the appearance of a four-storey building - particularly given the courtyard units which are excavated into the ground opposite the common boundary.

148 During our inspection of No. 14 Beach Road we went up onto the roof deck. Our first observation is that the existing outlook to the bay will remain substantially intact. We accept Mr Douglas's evidence that the angling of the apartment building's north-west corner has been designed to achieve that objective.

149 Secondly, while overviewing into the review site from first floor windows at the side and rear and from the roof deck are possible, we do not think the development would be unreasonably intrusive from these particular vantage points. We say this given the siting and configuration of the large courtyard on the north-west side. At its mouth, commencing between 4.4m (rear) and 5.2m (front) from the common boundary, the courtyard has a width of some 27m between the two building wings. It reduces to a width of 18.8m about 17m from the common boundary. The front wing of the building is angled to the common boundary rather than running parallel to it which assists in minimising visual bulk. The rear wing partly adjoins outbuildings on Mr Stankovic's property. This is an interface we do not regard as particularly sensitive. We do however consider it necessary to provide some articulation to the upper portion of the two storey walls of Units 47 and 48 that face No. 14 Beach Road given their breadth of more than 22m broken only by a small gap and their 2-storey height. Together with extensive landscaping proposed along the common boundary[29] and within the courtyard area itself we otherwise find that satisfactory softening of the development will be achieved.

150 Overall, we therefore consider that the development has been designed in a manner which is generally respectful of the outlook from this neighbouring dwelling and indeed from the backyard. Given the design response we have described and with the lowering of the building and greater articulation to the north-west wing that we will require, we are also satisfied that the development would meet the Bayside ResCode objective for side setbacks.

151 We turn now to the interface on the east side with properties at No.'s 96 and 98 Orlando Street.

152 From our inspection, we observed a driveway and fairly dense row of perimeter planting (about 5m high) along much of the east boundary at No. 98 Orlando Street. Further north of this is a large garage/shed. Together with the proposed setbacks of 4.2m to the townhouses and 5.4m to the apartments, we are satisfied that the development would not unreasonably impact upon this neighbouring property.

153 At the rear, we agree with Mr Govenlock's evidence that unit 57 at first floor level ought to be deleted given the potential for this part of the development to be unreasonably intrusive. With this modification we consider that the design response is an acceptable one.

154 In respect of No. 96 Orlando Street, we note that the triangular portion of the review site which abuts the common rear boundary with this neighbour is to be free of buildings. The deletion of Unit 57 and the distance of this neighbouring property from the proposed development also take us to the conclusion that no unreasonable visual impacts will arise in respect of this neighbour.

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160 Some concerns were raised primarily by Mr Stokans about the acceptability of the design in terms of the level of amenity that the development would offer future residents.

161 In particular, the courtyard units which are excavated below ground level were said to be a poor design response and might be regarded as low quality housing. It was argued that these apartments would be in shade for most parts of the day. The design of these units was also said to be potentially problematic given the site's partial location within an area subject to overland flows. We will return to the question of the SBO and flooding impacts shortly.

162 Other concerns relate to the proximity of some units to the railway line and the adequacy and amenity of communal open space areas.

163 We do not share the Council's concerns as to the quality and liveability of the development.

164 In relation to the excavated courtyard units, 7 of these are oriented to face a substantial courtyard space which has a width in excess of 18m at its narrowest point in the north-west wing. Both indoor areas and private courtyards will all receive some sunlight throughout various times of the day. The substantial dimensions of the communal courtyard also lead us to the conclusion that residents will not have a sense of being unreasonably "hemmed in" or overwhelmed by walls opposite.

165 We hold similar views about sunlight access in relation to units 8 to 12 facing the north boundary. We also think the setbacks from these units and the dimensions of their private open space areas will allow a reasonable outlook to and appreciation of landscaped areas in this portion of the site.

166 In reaching these findings, we have taken into account the two-level or mezzanine design of five units (i.e. Units 2, 5, 6, 8 and 10) which will enhance light penetration. We do however agree with Mr Govenlock's suggestion of converting Units 3, 4, 7, 8, 11 and 12 to double storey/mezzanine style apartments with living spaces provided at ground level for direct courtyard access. These modifications may result in Units 15, 16, 17, 18, 19 and 20 being subsumed into the footprint of the respective units on the levels below.

167 We do not think that the apartments on the north side are located too close to the railway line. The nearest dwellings are setback about 4.7m from the northern boundary and the vast majority have substantially greater setbacks. We do not consider these setbacks as inadequate and indeed we observed dwellings on the opposite side of the railway reserve located much closer to the railway reserve. Notwithstanding, we accept Mr Douglas's evidence that acoustic engineering details be provided for dwellings at this interface.

168 We are otherwise satisfied with the internal layout, orientation and amount of private open space associated with other dwellings.

169 We also consider that the design of the communal courtyards will provide an acceptable supplementary offering of open space to future residents. We regard Mr Eckersley's landscaping proposals as well conceived. Some relatively minor details will however require further resolution such as the design of fencing to private open space at the interface with communal courtyards (Mr Eckersley suggested radial sawn timber).

170 We also think it desirable to widen the pedestrian path alongside the east boundary from 1m to l.5m given the likelihood that it will be well utilised by pedestrians moving east towards Hampton Street and to enable some landscaping and lighting.

171 All of these matters can be readily dealt with through permit conditions.

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176 Melbourne Water originally had concerns with the proposal and the scale of the excavations to 3.5 metres below natural ground level but since, Melbourne Water has been satisfied in negotiations with the applicant and has withdrawn its objection subject to conditions being complied with.

177 Council still maintained concerns that the amended proposal does not address the concerns about floodwaters and will prevent the natural flow of overland water from entering the excavated site or the likely impacts of stormwater being diverted around the site onto adjoining properties. Mr Stokans submitted it is poor planning to locate dwellings below natural ground level in an area identified as being subject to inundation. Council did not however produce any expert evidence on the issue.

178 The concern of a number of the respondent/objectors was that floodwater at present flows down Orlando Street and that the proposed development's raised wall along Orlando Street boundary and humps at the car park ramp entrances to prevent water entering the car parks, would result in water being diverted onto properties on the other side of Orlando Street. An objector stated that already one house had required restumping at considerable cost due to water affected foundations, and fears were expressed of further damage.

179 The Coffey report dated 23 December 2004, prepared for an earlier proposal, had borehole and groundwater information attached and was accepted without dispute by the parties. The conclusions contained a statement that 'excavation of a basement to a depth of approximately 8 metres may encounter cemented bands and inflow of groundwater from approximately 3 metres below the surface level'.

180 Some borehole results were attached. The only boreholes in the SBO area concluded at 1.5 metres showing no water except for borehole 4 in the north-western corner of the property which showed water at 4 metres.

181 Mr Clark gave evidence for the applicant on flooding issues. His evidence was that:

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184 Concerns were expressed by various parties, particularly residents of Orlando Street that the development might cause traffic and carparking difficulties in this street and at the Beach Road intersection. The parties variously sought to consolidate the two access ramps in Orlando Street into one or for all access to be provided directly from Beach Road. The number of carparking spaces was also said to be deficient, with particular concerns raised about the impact of visitors parking kerbside.

185 Commencing with the access arrangements, just as we have found that the cross-overs and ramps would not have unreasonable visual impacts upon the streetscape of Orlando Street, we also find that no unacceptable traffic related impacts will arise. These ramps are located at the Beach Road end of Orlando Street, thus we anticipate most traffic related activity will occur at this location. We also accept Mr Butler's traffic evidence that the vast majority of vehicles travelling to or from the site will do so using Beach Road rather than Orlando Street.

186 Consequently, we also agree with the traffic evidence that any increase in traffic will not be excessive - less than 50 additional vehicle movements per day (vmpd) are estimated to or from the site in Orlando Street beyond the east site boundary. Even if these volumes were two or three times that number we do not consider this increase to be excessive. In reaching our findings, we have taken into account the design of Orlando Street which is capable of accommodating about 2000vmpd and existing volumes at about 300vmpd. We think that the additional traffic generated can be readily absorbed without exceeding the capacity of this local street. Nor, in our view, will this increase give rise to any unreasonable traffic or other amenity related impacts given the relatively low volumes involved. The porte-cochere will also relieve some pressure for vehicles to use Orlando Street although we expect this will be limited primarily to delivery vehicles and vehicles engaged in picking up or dropping off residents or their visitors.

187 We also think it reasonable to expect some traffic movements in Orlando Street as a consequence of any use or development of this site. Although the former hospital use has now ceased, historically that non-residential use would have generated some traffic in Orlando Street. That is also a relevant matter that has informed our findings.

188 It was Mr Butler's evidence that the intersection would be able to safely and efficiently cope with vehicles turning right to and from Orlando Street at Beach Road. We accept his evidence that sufficient gaps are available to accommodate these movements without any unreasonable queuing and delays or safety concerns. We also note that Vic Roads has not objected to the any aspect of the proposal subject to relevant conditions. Nor do they see the need for this intersection to be signalised. We agree.

189 Another matter concerning the intersection is the presence of a cabinet in the nature strip in front of the site. Council prefers to see it removed to improve sight distances at the intersection. We understand that this asset belongs to Melbourne Water. Although we think the intersection operates satisfactorily, we think it fair that if removal of the cabinet is to be pursued by the Council, Melbourne Water rather than the permit applicant should bear the cost of its relocation.

190 In relation to carparking, 155 spaces are to serve the apartments and 18 car spaces are separately available for the townhouses. They are on different levels. We see no need to link the two basements - they service discrete parts of the development.

191 The number of parking spaces more than exceeds the suggested ResCode standards for resident use and we are satisfied with the overall number of spaces proposed. We think it prudent however to require the provision of visitor parking spaces at the rate set out in ResCode - that is 1 car space per 5 dwellings (0.2 spaces per unit) rather than the lesser rate of 0.15 space per unit suggested by Mr Butler. We say this given that in a practical sense, any overflow parking is likely to occur in Orlando Street given the nature of traffic conditions in Beach Road. Further, in relation to the townhouses, while each is provided with a visitor car space, these are in tandem which together with their containment within garages may discourage their use for all but longer visits.

192 With the deletion of at least Unit 57, we are confident that ample parking spaces will remain available for allocation to both visitors and residents in accordance with ResCode standards. We also note the applicant's intention to ensure that security gates at the basement entries are left open, except at night, to promote visitor access.

193 We have considered the need for other minor modifications to the layout and design of the carparks. These are essentially matters of detailed design and generally accord with Mr Butler's evidence. In short we find that:

At a glance

Court

Decision date

Source

Judgment (197 paragraphs)

Abacus Funds Managament v Bayside CC [2006] VCAT 1869 (13 September 2006)

Parties

Legislation Cited (1)