Ardmillan House Pty Ltd v Moonee Valley CC [2003] VCAT 837 (7 July 2003)

Nineteen dwellings, car parking, access, overlooking.

Terrence Boseley, Mark Accadia, Filippa Catalfamo, John and Jennifer Mutch, Lisa McRae, Rosemary Gavranich, Gail Larkins, Salvatore and Rosaria Todaro, Marles & Warwick Oman, Phillip & Julie Gavin

[2003] VCAT 837

2. The Responsible Authority is ordered to issue the permit which must contain the following conditions:-

1. Before the use and development starts, or any trees or vegetation removed, amended plans (three copies) shall be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:

a) Details of the height and style of all fencing included on the elevation plans.

b) The two lights near the entrance to the underground car park increased in height to a minimum of 1.2m.

c) A directional sign within the basement indicating the location of the visitor parking bays.

d) Demonstration that a private garbage contractor can enter/exit the site in a forward direction.

f) Elevations of the mailbox including dimensions, colours, materials and finishes.

g) A schedule of all external colours, materials and finishes.

h) Each dwelling in the development meeting at a minimum a 4* Energy Rating using the Sustainable Energy Authority of Victoria `Firstrate' system or equivalent.

i) Glass inserts or telescopic spy glass in the front entry door of each dwelling.

j) The basement car parking having pavement markings located at the entrance/exit showing a "straight arrow" on the inbound lane, and a "left-turn arrow" on the outbound lane.

k) All egress from the basement car park to be "left-turn" only, via the right-of-way and onto Sydenham Street.

l) The construction of the right-of-way, from the entrance to the internal walkway abutting dwelling 14 to Sydenham Street, including an increase in the width of the pavement to six (6) metres at the front of dwellings 15-19, one metre of which is to be paved in a different material and form part of the pedestrian walkway to the site.

n) The drooping She Oak and Italian cypress retained on the east boundary.

Once approved these plans become the endorsed plans of this permit.

2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3. The right-of-way to the south of the site from the entrance to the internal walkway to Sydenham Street must be constructed, sealed and drained to the satisfaction of the Responsible Authority at a cost to be borne by the owner and prior to occupation of any dwelling.

4. Details of the intercom security system to be installed prior to the completion of the development at both pedestrian and vehicular entry points (Ardmillan Road and the basement car park), to the satisfaction of the Responsible Authority.

5. The collection of refuse and recyclable materials from this development must not detrimentally affect the amenity of the neighbourhood including through the:

* The transportation of the refuse and recyclable materials.

* Appearance of any stored refuse and recyclable materials.

* Emission of noise, artificial light, vibration, odour, fumes, smoke, soot, ash, dust, wastewater, waste products, grit and oil.

6. At no time are garbage collection bins to be placed in the right of way for collection.

7. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

a) Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted.

b) Thereafter be maintained to the satisfaction of the Responsible Authority.

c) Be made available for such use at all times and not used for any other purpose.

d) Be properly formed to such levels that it can be used in accordance with the endorsed plan.

e) Be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority.

8. The discharge of water from the property shall be controlled around its limits to prevent any discharge onto any adjacent property or streets other than by means of an underground pipe drain discharged to an approved outlet in a street to an underground pipe drain.

9. All piping and ducting above the ground floor storey apart from downpipes of the building shall be concealed.

10. No buildings or works shall be commenced until a landscape plan generally in accordance with the McFall drawing LC291A has been submitted to and approved by the Responsible Authority. Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied.

11. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

12. Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with the Responsible Authority's standard specification and any vehicle crossing/s no longer required must be removed and the land, footpath and kerb and channel replaced all to the satisfaction of the Responsible Authority.

13. The car parking area must be lit to the satisfaction of the Responsible Authority, if in use during hours of darkness and all lights must be designed, fitted suitable baffles and located to prevent any adverse effect on adjoining land.

14. The existing street tree/s shall not be removed or damaged.

15. A construction management plan to be submitted to Council prior to the commencement of any works including matters relating to the pedestrian and vehicular access along the boundaries of the site to the satisfaction of the Responsible Authority.

16. The development shall be provided with external lighting capable of illuminating access to each garage, car parking space and pedestrian walkways. Lighting shall be located, directed and shielded and of limited intensity that no nuisance or loss of amenity is caused to any person within and beyond the site.

17. Except with the written consent of Council, the collection of refuse and recyclable materials must only occur between the hours of:

18.(a) The development does not start within two (2) years of the date of this permit; or

(b) The development is not completed within four (4) years of the date of this permit.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

(i) Before the commencement of the development occurs, the applicant shall contact the Moonee Valley City Council's Contract & Management Department regarding legal point of discharge, new crossings, building over easements etc.

(ii) This is not a building permit. A separate building permit is required to be obtained for any demolition or building works.

(iii) Owners of properties may be asked to pay an inspection fee and provide a bond to ensure that council assets in the vicinity of their works are not damaged during the construction.

Application under s 79 Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

Moonee Valley Planning Scheme - Residential 1 Zone.

1. The form, bulk and scale of the proposal fails to meet Clause 55.021 Neighbourhood Character Objective, as it does not respect the character of the existing neighbourhood.

2. The proposal fails to satisfy the Residential Design Provisions set out at Clause 22.06 of the Moonee Valley Planning Scheme.

3. The traffic impacts resulting from the proposed development on the surrounding area and in particular Sydenham Street, will be substantial and unreasonable.

1. By application dated 17 July 2002, permission was sought to use and develop the subject land for the purpose of 19 dwellings. The dwellings are arranged in three buildings which run along the site with a basement carpark for 47 vehicles. The site is currently used as a reception centre; under the proposal all existing buildings will be demolished.

2. The application was advertised by a direction of the Responsible Authority and 48 objections received.

3. Although recommended for approval by the professional staff of the Responsible Authority, the Responsible Authority resolved on 25 March 2003, to refuse the application on the grounds set out above. This followed three consultation meetings conducted by the Responsible Authority. Other Council departments examined the proposal and did not object on the grounds of traffic, drainage or landscaping subject to various stated conditions.

4. The site is relatively flat with mature trees particularly along the eastern boundary. Current vehicular access is via a crossing onto Ardmillan Road and a driveway that extends the length of the site to a right-of-way which leads to Norwood Crescent. Surrounding housing is largely single storey of varying styles with some particularly attractive housing from the Federation period. The site is well located with regard to all community facilities. The Moonee Ponds Railway Station and Puckle Street shopping are nearby.

5. The various planning instruments affecting the site encourage consolidation of sites and development subject to no undue effect on the amenity of the area. Higher densities near railway stations and other community centres is encouraged.

6. The site is just on a 400m radius from the Moonee Ponds principal activity centre as noted in the Melbourne 2030 strategy.

7. However Ms Stupak said that while it is recognised that the proposal meets most policy provisions of Melbourne 2030, the Council believes "it essentially fails to satisfy the neighbourhood character test".

8. Ms Stupak supported a refusal on the following bases:-

* Neighbourhood Character - Infill development must respect the prevailing neighbourhood character. The proposal "fails to respond to the objectives of neighbourhood character with respect to the double storey scale of the development", visual bulk and built form.

* The proposal does not respond to the infill design standards set out in the Residential Style Notes with respect to scale, height and roof forms, i.e. heights of dwellings in the area are generally single storey with houses set apart from each other.

* While the first floor setbacks from the properties on the east boundary are 7.5m and thus comply with the standards of Clause 55 (except for Unit 19) the built form does not have the characteristic openness of rear spaces of the existing properties.

* When viewed from Grosvenor Street the proposal presents a level of two storey building bulk.

* The roof form is simple, uncomplicated and uninteresting in contrast to the picturesque types typical in the area.

* The building mass on the ground floor essentially covers the entire site.

* The proposal will have traffic and parking impacts particularly on Sydenham Street.

The key issue surrounding this application is the impact of the proposed development on the surrounding neighbourhood and carparking.

10. The objectors based their opposition to the proposal principally on the grounds of neighbourhood character and said:-

This development introduces elements of building form, bulk, scale and intensity of development that are both contrary to and without precedent in this neighbourhood, and which have the potential to adversely impact the established and preferred character of the neighbourhood. Indeed, by setting a precedent itself, it has the potential to further erode residential character.

Despite the site's limited street frontage, this uncharacteristic and unsympathetic development will be visible from the more sensitive open space or backyard areas of numerous adjoining residential properties. The development will also be visible from residential properties opposite the site in Sydenham Street and from all vehicles and pedestrians utilizing Sydenham Street.

We would strongly argue that neighbourhood character is defined by more that streetscape alone, and includes a neighbourhood's subdivisional pattern, including size of lots, siting of buildings within those lots, spaces between buildings and the provision of open space corridors.

11. Examples of Victorian and Federation houses were given to illustrate this view. Examples were also given of the low-key single storey detached dwellings in the area. The scale and bulk of the proposal was therefore considered not to be in the context of the neighbourhood.

12. Next, the submission highlighted a site in Unley Grove which is of similar area to the subject site. In refusing the application for an 18 lot subdivision the Tribunal (Mr S.R. Cimino) said:-

The context of this land is such that it is largely surrounded by single storey development. There are some taller buildings but I don't think they combine to create the predominant scale of this particular neighbourhood. In my view it would be appropriate for the form of development contemplated by the envelopes to be responsive to the predominant scale of development found in this neighbourhood, not that which makes a relatively minor contribution. (VCAT Re No 1353/2002).

13. Thus the objectors considered that this proposal was similar to the Unley Grove proposal and should also be refused.

14. However, on reading Mr Cimino's decision there are a number of other aspects that he found militated against the grant of a permit. Some of these are:-

* Lot sizes ranging from 119m2 to 199m2 with frontages of about 6m.

* Car parking provided off a new internal road which "will be dominated by street crossings".

15. None of these aspects is relevant to the subject proposal. Thus I believe that the subject proposal is readily distinguished from the one which was the subject of Mr Cimino's decision.

16. A major issue raised at this review was the likely hazard to be caused to pedestrians and others by vehicles exiting the site via the right of way at the southern end. Although the Council's Traffic Engineers did not see any difficulty with this arrangement the objectors made the following points:-

Residents believe the overdevelopment and intensity of the proposed development with the potential to introduce in excess of 40 vehicles to the vicinity will intensify on street parking demand and adversely impact the functioning of local roads.

We would argue many of the statistics and conclusions of the independent traffic report submitted by the applicant are inaccurate, flawed and misleading.

The problems associated with on street parking in the Ardmillan Precinct occur Monday - Friday from approximately 8.00am to 6.00pm, as a result of the large numbers of commuters who park in the streets due to their proximity to the Moonee Ponds Train station. These are the hours when on street parking demand is at its peak and when residents, their friends and service vehicles are often unable to park within close proximity to their homes.

We would therefore question the relevance of the parking demand survey which occurred on 3 dates between the hours of 6.00pm to 9.00pm.

Due to the infrequent and generally small to moderate size of functions at Ardmillan House, it is not considered a significant contributory factor to on street parking demand. The statistics supplied by the "Traffix Group" indeed support this view.

* During the reception centre's busiest period, only 1.1 functions occurred midweek with the potential to impact on street parking during the peak period.

* The average number of guests who attended midweek functions during the reception centre's busiest period was 65.7. It is estimated they required approximately 33 car sites. As the reception centre contains 30 car spaces this would require an additional 3 on street car spaces.

17. In response to this point, Mr Jones called evidence from Ms Charmaine Dunstan a Traffic Engineer with the Traffix Group. After analysing likely traffic generation from the project, she made the point that the proposed dwellings will each generate about six vehicle trip ends per day i.e. a total of about 114 trip ends per day with a peak of about 19 trips in the morning and evening peak hours.

This traffic will exit the site to the road network onto Sydenham Street, via the ROW. Aside from the physical constraints, it is considered that there would be little benefit for traffic generated by the subject site to use this ROW to access Grosvenor Street, as access to Sydenham Street is easier and effectively provides access to the same roads.

The survey indicates that Sydenham Street carries in the order of 900 vehicles per day, which is well within acceptable limits for a local street (particularly given the level of commercial uses in the nearby area). The surveys show that the existing usage of the laneway is low (23 cars over 12 hours), which is primarily generated from parking off the ROW to the Swim School.

It is noted that the existing heavy vehicle usage in Sydenham Street is primarily related to Bus Route No. 467 which circulates from Norwood Street along Sydenham Street and to Holmes Road.

The proposed development will have minimal impact on traffic conditions in Sydenham Street at peak times or over the day as a whole. This traffic will also be residential in nature, and will be generally spread throughout the day.

19. Ms Dunstan tabled attendance figures of patrons at Ardmillan House between February and April of this year. This period she said is regarded as the "wedding season". The 58 functions held at Ardmillan House over this period gave the following results:-

Weekday Parking : 25 min to 120 max cars at functions.

20. With only 30 car spaces available onsite she concluded that the reception centre must generate "a significant on-street parking demand" nearby.

21. The objectors also stressed the point that upper level habitable windows could overlook private secluded open spaces within the development and within the rear yards of existing properties. These yards are important amenity areas which they believe would be adversely affected by the perception of overlooking from the first floor windows.

* Does not improve housing choice, each of the units being of similar size.

23. The objectors believed that the proposal should consist of fewer dwellings which should be generally of single storey.

24. In response on these aspects, Mr Jones called town planning evidence from Mr D.G. Whitney a Town Planner of longstanding. On the central questions of neighbourhood character, overlooking and other impacts on neighbouring properties, Mr Whitney gave the following responses:-

* There is no homogenous housing style or specific character that sets the area apart from surrounding neighbourhoods.

* The area's amenity is enhanced by its access to transport and facilities.

* The planning scheme expresses Council's desire to provide a diverse range of quality housing ensuring that new development enhances the character of each neighbourhood. The proposal is clearly consistent with State planning policy.

What makes the subject site such a suitable candidate for medium density housing is its configuration being essentially tucked away and out of sight. It can be developed without having a negative impact on neighbourhood character whatsoever. It will do no damage to the streetscapes of Norwood Crescent or Grosvenor Street and it will sit comfortably in the Ardmillan Road streetscape where it occupies the narrowest of frontages. At its rear, in so far as it presents to a right-of-way and the right angle bend in Sydenham Street, it will enhance the streetscape by removing rear fencing and gates and replacing these with a residential frontage.

26. Next, on the question of amenity Mr Whitney said:-

At the outset in any consideration on amenity, it needs to be stated that the proposed use will replace a function centre that for a long period catered for large numbers of patrons on a regular basis. In comparative terms, the residential use of the site will provide enhanced amenity.

With respect to the impact on adjacent properties, the proposal meets the appropriate objectives and standards of ResCode. This itself should ensure that no unreasonable impact will result. Specifically, the proposal meets the side and rear setback objectives (Standard B17), overshadowing of secluded private open space (Standard B21), overlooking (Standard B22) and noise (Standard B24).

I note that in regard to these aspects Council officers suggested a condition to provide screening on the upstairs balcony of Unit 2 where there is a most minor area of non-compliance. Council's concern about Unit 12 appears misconceived as there are no upstairs windows on the western wall of this unit.

27. After an examination of the plans I agree with this comment. The suggested condition will therefore be deleted.

28. Reviewing the various matters presented at this review, it is difficult to find any reasonable basis to support the grounds of refusal expressed by the Responsible Authority and expanded upon by the objectors.

29. The grounds of refusal will now be considered.

1. The form, bulk and scale of the proposal fails to meet Clause 55.021 Neighbourhood Character Objective, as it does not respect the character of the existing neighbourhood.

30. This ground seems to be saying that the proposal is not of single storey detached housing that reflects the Edwardian/Federation design of some of the nearby housing. Few Planning Schemes, if in fact any, set out to say that new housing must duplicate or mimic the housing that exists nearby. Infill housing - of one or two blocks say - can reasonably be expected to adopt features of its neighbours. However this is not the case here. As Mr Whitney remarked, this proposal is "essentially tucked away and out of sight". The fact that the proposal is of two storeys is no bar to its approval. The Planning Scheme does not suggest in any way that single storey housing only should be permitted. Use of a second storey in a development has the substantial benefit that lesser the site is occupied with a concomitant increase in landscaped areas and, in this case, overlooking of neighbours is well screened by distance and landscaping.

31. A further point to keep in mind is that the proposal offers a variety of housing not common in this part of Moonee Ponds, which is an objective suggested by the Planning Scheme.

32. Clearly this first ground has not been made out.

2. The proposal fails to satisfy the Residential Design Provisions set out at Clause 22.06 of the Moonee Valley Planning Scheme.

33. Again Mr Whitney placed this aspect of the review, I believe, in its correct context. He said:-

The Council officer's report describes in detail, the manner in which the proposal addresses each of the 9 design principles contained in this policy. That report considers that the roof form is appropriate; that setbacks are appropriate; that the buildings' articulation are not uncharacteristic of the area; that building form is appropriate; that building bulk or scale is generally minimised and is perceptibly reduced by articulation, finishes and setbacks; and, that spacing between buildings is acceptable.

With respect to private and public realm, landscaping and fencing, the report indicates that conditions and a revised landscape plan should ensure compliance. This assessment is predictably conservative. In my view the proposal indicates quite strong conformity with the Council's policy.

34. I agree with Mr Whitney, that no further comment is needed.

3. The traffic impacts resulting from the proposed development on the surrounding area and in particular Sydenham Street, will be substantial and unreasonable.

35. This ground is quite wrong. The evidence of Ms Dunstan clearly shows that there will be a reduction in on-street parking compared with that generated by the reception centre. The improvement in amenity by noise associated with the proposal is obvious. It could be expected that, in general terms, only one or two vehicles would leave the basement at any one time compared with the reception centre traffic where all vehicles arrive and leave in a fairly concentrated period.

36. In summary then the grounds of refusal have not been made out.