Is the response of the proposal to its context acceptable?

The height, bulk and mass of the building would impact on the amenity of the adjoining residential properties to the rear.

1. Council submitted that the building scale at the rear is unacceptable in the context of the adjoining residential properties to the north, particularly in the height of built form on the boundary. It said that at 11.46 metres, the rear wall would have an unreasonable impact in terms of visual bulk on those residents across the lane and further north. Its presentation is harsh and visually overbearing when viewed from these properties to the north. The resident objectors share Council's concern.
2. Council accepted that no unreasonable impact will occur through overlooking or overshadowing, due to suitable screening and the separation provided by Windsor Lane.
3. Mr Elliott's evidence was that the proposed landscaping to the garage entry would add "interest and relief to the lane and the pedestrian traffic along it". He said that stepping back the building at the upper two levels, the design of the façade, which includes recessed balconies and the use of a variety of materials, would minimise any appropriate visual impact. His opinion is that the height and massing of the building is within the degree of change anticipated for the commercial area.
4. We are not persuaded by his submission. We remain unconvinced that landscaping kept to a height of 900 millimetres (as required to maintain adequate driver sightlines) would do much more than collect rubbish from the lane. We agree with Council that residents adjacent to an activity area are likely to live in a busier, noisier and more congested area. However, a precinct of low-rise residential development exists between the railway station and the properties south of Windsor Lane. As much of this precinct is of recent construction, we consider that change is unlikely in this area in the medium to long term. It contains building forms in a residential zone to which development to the south of Windsor Lane must respond. The built form at the rear interface is simply too imposing in this context.
5. This is a situation where both the adjacent residential zoning and the slope of the property will legitimately limit the development potential[10]. We consider that by ignoring the constraint of the substantial fall in the land, or rather, by failing to capitalise on the opportunity offered by it, the rear of the proposal is simply too high. The relatively steep slope from Canterbury Road to the railway line means that larger buildings on sites to the south of Windsor Lane will be prominent at a modest height. There is therefore a strong imperative for a well designed interface regardless of zoning constraints or opportunities.
6. The Applicant's submission suggested that only impacts which could be precisely measured are relevant to our consideration. However, we consider that whether or not standard B17 of Clause 55 is or should be complied with, or from whence it should be measured, is not the point. For a building such as this, the ResCode standards are only a guideline. For cases such as these, the Guidelines for Higher Density Residential Development (2004) clearly encourage new development to respond to its context. It is the visual bulk of the rear of this proposal that we find unacceptable. The section taken through the rear of the building (section CC) does not show the building outline of the projecting bedroom walls beyond the recessed terraces and the resulting walls along the northern boundary. There is more building bulk to the rear lane than is apparent from this section. The resolution of this interface needs further consideration and we have no doubt that the Applicant can do so successfully.
7. We think that the height of the wall on the northern boundary should terminate at first floor balcony height (acknowledging that screening will make it higher). We further consider that a revised layout of the rear apartments could reduce the amount of solid wall on the northern boundary at ground and first floor levels. Above this, the second floor slab (and balcony edge) should be set back by a minimum of 3 metres, and be unroofed. The third and fourth floors should then be considerably further recessed (around say six metres) to minimise the impact when viewed by the neighbours to the north and from the public realm in Windsor Lane and near the railway station.
8. We have no such concerns about the Canterbury Road interface. It has incorporated an existing building valued by local residents and proposes a modest three-storey 'infill building' to the west with the upper fourth level set back around 4 metres from the frontage. The 'infill building' is set back one metre from Canterbury Road. There is a two metre separation between the two parts of the building and this means that four metre depth of the west wall of the existing building will remain exposed. This is a well-resolved and acceptable solution to the Canterbury Road interface.
9. Asolo Developments Pty Ltd, the owners of 619 - 623 Canterbury Road immediately to the west of the review site, submitted that the proposed development has not responded to the zoning as it failed to protect itself from the potential impact of future development of adjoining sites in the same zone. Further, it had not reasonably considered the requirement to provide an equitable distribution of development opportunities, which could be said to prejudice the orderly planning of the precinct.
10. We agree with the submission that, regardless of the sequence of development, the achievement of orderly planning[11] is that one development should not unduly prejudice that of a neighbour. This is particularly the case where both developments are at a preliminary stage, such as obtaining planning approval, where adjustments to built form can be made with relative ease. In our consideration of this matter we were assisted by a proposal (not yet approved by Council) for the site at 619-623 Canterbury Road and by a drawing supplied by the Applicant at the hearing showing how setbacks within the adjoining property to the west of the review site could be reconfigured within the current proposal for that site. We accept that this could be a solution. However, our concern is based on whether or not the proposal has assumed a "sufficient level of responsibility"[12] for the amenity of its own future residents. We consider that it is entirely probable that developments to four-storeys could occur on both the east and the west sides of the review site. The proposal for the review site is in our view too dependant on borrowing from neighbouring sites to compensate for what we consider are its own inadequate setbacks. Amenity that is "borrowed" should be a bonus, not an expectation.
11. The substituted plans have increased the size of the light courts. However, we consider that the terrace garden areas to apartments 1, 2, 9 and 10 on the ground floor are unacceptable even in the existing condition, where the adjacent buildings are one and two storeys, as they are dependent on a 1500 mm wide light well. Both their outlook and private open space would be unduly constrained. With four-storey adjacent development, the amenity of all east and west facing balconies would be dependent on the reciprocal light courts. Another design approach to the apartments layouts (albeit with some consequential reduction in yield) should produce a design less reliant on adjoining sites.

1. Residents and Council were concerned with the additional traffic movements in Windsor Lane. For residents, parking in the lane and cyclist/pedestrian safety were the issues, for Council, potential queuing due to the delays in activating the resident's stacker system. It was also concerned with the cumulative impact of additional vehicle movements as other sites are redeveloped.
2. As for the latter, the Applicant relied on, and we concur with, Member Bennett's observations in regard to a site less well served by public transport that:

Concerns about traffic and parking congestion are commonly raised in Tribunal hearings by residents living near new developments. It may be very obvious, but it is worth noting that ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I accept that the review site is some distance from public transport, shops and schools and that future residents will use motor vehicles to a greater extent than if the site were in or very close to an activity centre. However rejecting new development on sites such as the one on the review site because of the potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, relatively close to urban facilities rather than in remote and poorly serviced areas, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to.[13]

1. We reiterate that we consider the location of the site close to a major railway station will be likely to reduce the use of vehicles by residents of the development.
2. In relation to the traffic in Windsor Lane, Mr Hardingham's evidence, based on traffic and pedestrian movement surveys, was that Windsor Lane carries in the order of 130 vehicles per day. He estimated that when the development is occupied this would increase to 230 vehicles per day. This is below the indicative maximum traffic volume for an 'access lane' of 300 vehicles under clause 56.06 -8 of the planning scheme. On our inspection we noted that the width of the lane currently allows for unregulated parking. In addition, the length and configuration of the lane and its interfaces means that the traffic using the lane moves slowly. We note that Council can regulate this movement and parking should it prove necessary. It was Mr Hardingham's evidence which we accept, that the development would not make the lane so congested as to be unworkable.
3. In regards to the stacker system Mr Hardingham explained that using a stacker was more of an inconvenience than a safety concern. In this particular case the configuration allows three cars to access the system simultaneously. We accept that stacker systems are more and more frequently used in developments such as these where they save space and make the dwelling more affordable. This is an acceptable solution on the site, consistently supported by the Tribunal.
4. Council contends that the development should comply with car parking policy at clause 22.03 which would require 81 spaces (68 for residents, 9 for visitors and 4 for the office use). The proposal thus has a shortfall of 23 car spaces. It is suggested that a development which reduced the yield to 32 apartments and continued to provide the 58 car spaces would be a more acceptable outcome. We note however, that the traffic engineers for Council supported the proposal subject to a number of conditions and we are satisfied that car parking at a rate greater than that stipulated by clause 55 is not necessary on this site.
5. Mr Hardingham's evidence was that the parking rate set out in clause 55 provides a more realistic guidance to the parking needs of residential developments of this type. He considered the planning scheme rate of 3.5 spaces per 100 m² of the office area (which equates to 5 spaces) is representative of the likely peak parking demand. The appropriate provision of parking is therefore 45 resident spaces in independent stackers, 5 office spaces (including 1 disabled space) and 8 visitor spots. He said that the shortfall of the 1 onsite visitor parking space was acceptable, given his assessment that there is ample availability of parking within reasonable walking distance and good access via both train and bus.
6. We accept Mr Hardingham's evidence. ABS Census data that 30% of 1 bedroom households in Boroondara do not have a car and one space is required for two-bedroom dwellings on average. We are satisfied that the application of clause 55 parking rates would provide an acceptable level of car parking for future residents given the proximity of the Surrey Hills Railway Station.

1. Council and residents had been seeking heritage protection for the existing Edwardian shop building on the site. It had been recommended for an individual overlay as part of amendment Am C116. The Panel assessing that amendment concluded that the building was not sufficiently significant to warrant an individual heritage overlay. Council subsequently abandoned the amendment.
2. Mr Raworth gave the existing building very little heritage value. His evidence was that the demolition of the rear of the building, retaining the shopfront and the building to the depth of one room was a generous response. The façade to the side and front is to be largely retained with only the (altered) shop window replaced. He said that the new façade treatment of the 'infill' part of the development complements and adopts a comfortable interface with the retained building and is thus an appropriate design. As noted above, we too find it acceptable.

1. Amenity issues raised by residents not already covered in our reasons included overlooking, noise both during construction and afterwards from residents and car stackers. Council accepted that overlooking can be adequately dealt with by screening. We accept that a construction and waste-management plans and noise conditions which address such matters can form part of any permit issued.

1. With the exception of the configuration of the private open space to the east and west facing apartments discussed above, we find the apartment design to be of a high standard. The rooms and balconies are well- dimensioned and no room relies on borrowed light. The apartments are conveniently accessed from a generous lift lobby and well- dimensioned corridor. The terraces are both usable and have considered the location of compressors. Convenient storage is provided to each apartment.

1. Planning seeks a balanced development outcome. Change is encouraged in this location. However, the extent of change in locations such as this one needs to be tempered by considerations which include topography and adjacent existing residential development.
2. We conclude that the proposal needs modification in its treatment of both the rear and side interfaces. We consider that the imposition of conditions requiring increased set backs will unduly constrain the Applicant in redesigning the project and we are reluctant to prescribe the changes needed. For this reason we will affirm Council's decision. No permit shall issue.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[6] Boroondara Activity Centre Strategy adopted by Council on 6 June 2011.

[10] Design Guidelines for High Density Residential Development DSE 2004, Design Suggestion 1.2.1.

[12] Member Dalia Cook in VCAT ref no. P2601/2010 Maison the Development Pty Ltd v Moreland CC [2011] VCAT 219 at [34].

[13] Prestige Homes Pty Ltd v Yarra CC [2009] VCAT 958 at [19]