Australand Holdings Pty Ltd v Bayside CC & Ors [2001] VCAT 2340 (22 November 2001)

PLANNING LIST Application for Review No. P50658/2001

Retired Persons Accommodation - Amenity - Car Parking - Streetscape - Bulk.

APPLICANT FOR REVIEW: Australand Holdings Pty Ltd

Medium Neutral Citation [2001] VCAT 2340

SUBJECT LAND: 16-24 Landcox Street, Brighton East

The decision of the Responsible Authority is affirmed. The Tribunal orders that no permit shall be granted.

Mr P Martin, Solicitor of Gadens, Lawyers, appeared on behalf of the Responsible Authority.

Mr I McP Pitt, Solicitor of Best Hooper, appeared on behalf of the Applicant for Review.

The following Respondent/Objectors, appeared in person:-

Messrs M Patterson, P McMahon, L Jones, A Eger, R Hardy, Mrs H Livissianos, Dr A Van den Bosch.

Application under S.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

1. The subject land has a frontage of 60.5m to the eastern side of Landcox Street, a depth of 100.6m and a total site area of 6080m2. The rear boundary of the land has abuttal to Noel Street. It has been used as an army barracks and currently accommodates seven main buildings and various outbuildings.

2. Landcox Street is a wide residential street. It contains a diverse dwelling stock comprising both single storey and two storey houses and some medium density development. Most properties have well established gardens. Two large buildings associated with the Gardenvale Primary School are also located nearby.

3. The site is well served by public transport and tram and bus services are located within walking distance.

4. In evidence given on behalf of the Applicant for Review by Mr T W Biles, a Town Planning Consultant, the following description appears:-

"The proposal is for a retirement village. It consists of a double storey three-winged residential building, designed to respect the scale of the existing dwellings in Landcox Street and to the rear of the site in Noel Street.

The proposal incorporates the following components:

* Three (3) double storey residential buildings that are linked by circulation passages in the centre that encourage movement between the three wings and link the common areas and first floor apartments at the west end of the site, with the resident apartments at the east end of the site.

* 65 resident apartments comprising 64 one bedroom and 1 two bedroom apartments. Each apartment will also contain a lounge area, a bathroom and facilities for the preparation of light refreshments. It does not include facilities for cooking main meals. Each apartment has a private terrace that opens out to one of the numerous courtyard/open space areas.

* Manager's residence is to be located at the front of the site. This will be fitted with full kitchen and cooking facilities and as well as full size bathroom, bedroom and lounge area. A private terrace will open onto the path leading along the southern boundary of the site.

* The ground floor will accommodate 26 apartments, the remaining 39 apartments will be on the first floor.

* The ground floor will incorporate the resident dining room, lounge and kitchen facilities to be located on the north-west corner of the building. This common area will be accessible to a terrace that will extend the length of the dining and lounge areas and wrap around the north-west corner of the building to where the carpark ramp starts.

* Provision for resident services at the front of the west wing including a salon, medical facility, library and activities business centre, gymnasium, and an office and reception area. Within the front reception area there will be an amenities area for visitors.

* Creation of a basement car park and additional car parking areas at the front of the site.

* Creation of a pedestrian path network that encourages movement around the perimeter of the site and throughout the facility that links the courtyard areas with each of the three wings. The courtyards are centrally located between the three wings with access provided from common areas and from private terraces. Provision has been made to ensure all private and public open space areas are adequately provided with natural light, but also weather protection.

* Provision for generous setbacks from all boundaries, with particular emphasis on vegetation screening along the boundaries that interface with existing dwellings in Landcox Street.

* Relocation of the existing single crossover and construction of one additional crossover adjacent to the site in Landcox Street. There is no entry proposed from Noel Street.

5. It is proposed to provide a basement carpark containing 33 spaces together with a further six spaces at grade in the front setback area. Access to the basement carpark would be provided via a crossover adjacent to the northern boundary of the land.

6. Notice of the application was given and this resulted in eleven objections. These were summarised in the officer's report to Council as follows:-

* The provision of on-site car spaces is inadequate given the number of occupants, staff, visitors and services/deliveries.

* Inadequate on-site parking for the manager's residence.

* Increased traffic and parking problems, having regard to pick-ups from a nearby school and people visiting Landcox Park.

* There should be a one-way exit from the proposed development off Noel Street.

* The proposal will cause an unreasonable increase in water run-off to the canal and increase the potential for flooding.

* Unreasonable overshadowing and loss of daylight to adjoining residential properties to the south.

* The proposed building will be located too close to Landcox Street.

* The proposed building will result in unreasonable visual bulk to the streetscape and adjoining properties.

* Loss of views from Landcox Street through to Noel Street.

* The proposed location of air conditioning units will result in unreasonable noise.

* No details provided relating to the ventilation for the proposed basement car park.

* There is the potential for the facility to be altered from its original design to be used as a motel, hostel or convention centre.

* The proposal cannot be accommodated by existing infrastructure.

* The proposal will cause detriment to the existing streetscape and neighbourhood character.

* There will be unreasonable disturbances created during the construction phase.

* Increased strain on health care services provided by Council.

* Increased noise pollution and odours to 26 Landcox Street due to the proximity of the proposed driveway, bin storage area and kitchen.

* The findings of the independent traffic survey are inaccurate and inappropriate in terms of car parking demand and traffic flow.

* The proposal is an overdevelopment of the site, having particular regard to the number of apartments proposed.

* Overlooking and loss of privacy to adjoining residential properties.

* There are too many aged care facilities in the area.

* Minimal areas of private open space have been provided for each of the proposed apartments.

* Increased noise pollution form waste bin collection.

* The number of bins required to be located on the nature strip for collection will cause detriment to the street.

* Increased air pollution from traffic and during construction.

* The subject site is more appropriate for a town house development with a lower density.

* Inappropriate to locate a commercial venture in a residential area.

7. On 25 June 2001 the Applicant submitted revised plans to the Council. On 9 July 2001 the application and the objections were considered, together with a report from the Council's Town Planning Officers recommending that a permit be granted subject to a substantial number of conditions. The Council however resolved to refuse to grant a permit on the following grounds:-

1. The proposed development makes inadequate provision for on-site car parking.

2. The proposed development will result in unreasonable overshadowing to the adjoining properties to the south.

3. The proposed development will result in unreasonable visual bulk to adjoining properties.

4. The proposed development will result in an unreasonable loss of residential amenity to the adjoining property to the north in terms of noise.

5. The proposal is an overdevelopment of the site.

6. The proposed development will detract from the existing streetscape and neighbourhood character.

7. The proposed apartments will be provided with inadequate areas of private open space.

8. The Applicant now seeks a review of the Responsible Authority's decision.

9. On the hearing each of the parties tabled and read written submissions. Mr Pitt called evidence on behalf of the Applicant from the following persons:-

Each of these witnesses spoke to a written statement which had been pre-circulated, and each was subject to cross-examination. An inspection was conducted following the hearing.

10. The Tribunal does not propose to provide a detailed summary of all that was said. As can be seen from the previously summarised grounds of objection, many of the assertions made by the objectors cannot withstand close scrutiny. The matter however raises several key issues which Mr Biles identified as follows:-

* Is the proposed use an appropriate response to the outcomes sought by the Planning Scheme?

* Will the proposed use and development have an unreasonable effect on the amenity of neighbouring properties?

* Will the proposal provide for the reasonable amenity of future occupants?

11. The Tribunal proposes to deal with each of these questions in turn.

At the outset it is important to understand the basis of this proposal. This is not a facility designed to provide independent living accommodation for residents. The units do not have kitchens and communal meals will be provided in the dining room. Nor is it a nursing home. The two storey design of the development suggests that residents will need to have a considerable degree of mobility.

As the Tribunal has frequent cause to emphasise, the most appropriate location for aged care accommodation is in residential zones. Moreover, it is desirable that aged care facilities be located in a manner that minimises the dislocation of aged persons who have spent long periods of their lives in and around the area in question.

This is a large site - a rarity in the Brighton area. It lends itself to the type of use proposed. One of the benefits of a site of this magnitude is that any adverse amenity impacts can be internalised with the result that the amenity of neighbouring properties should not be detrimentally affected. Whether this objective has been achieved is a key aspect of the present proposal.

While the Tribunal rejects the argument that the site is unsuitable for the proposed use, it is important that the building itself respects the character of the neighbourhood and can be readily assimilated into the built form. That is another important aspect of these proceedings.

The manner in which the building will fit into the streetscape was an issue addressed by both the Council and the objectors.

The building extends approximately 45m across the Landcox Street frontage, a distance which equates to approximately 75% of that frontage. It has a wall height ranging between 6.1m and 7m, but the roof treatment is such that the building measures approximately 10m to the ridge. However, it is true that the roof contains many ridges and valleys and its peak height come some 27m back from the frontage.

In evidence, Mr Biles suggested that the Landcox Street façade was well articulated, with both horizontal and vertical relief incorporated to minimise the apparent bulk of the building. He stated:-

The proposed building has well articulated facades which has been achieved through gables, recesses, balconies, a mixture of external finishes and strong horizontal elements.

The materials and finishes for the proposed building include face brick and terracotta roof tiles that are similar to those used in surrounding residential dwellings.

These elements, coupled with the landscape plan will ensure that the buildings deliver a respectful relationship with the character of the neighbourhood.

It is important to note, that "respectful of neighbourhood character" does not mean "the same as abutting forms". It means that the new buildings should respect - scale, height, form and to some degree materials and vegetation.

My conclusion is that this proposal satisfies that objective.

The front setback, as Mr Biles noted, is "generous", ranging between 10.54m and 15m. However, it contains the "at grade" car parking spaces, a loading bay, the driveway and the port cochere. It is not a setback devoted primarily to landscaping. Indeed, considerable reliance was placed by Mr Patrick on the existence of street trees which, he argued, would soften the appearance of the development. However, some of those trees are not of sufficient height to perform that role and have been quite extensively cut back by the electricity supply authority.

In his evidence, Mr Patrick acknowledged that it would be in the order of 5 to 10 years before vegetation on the site reached a level of maturity sufficient to screen the development from view.

A number of the objectors live directly opposite the subject land. Mr McMahon in particular expressed concern that the view from the apartments opposite would be of a very large, institutional type building, and it would be many years before the landscaping fulfilled its designated role.

The Tribunal turns now to the situation confronting the property directly to the north, namely No. 26 Landcox Street, which is owned and occupied by Mr & Mrs Hardy.

In Mr Hardy's words, he has "scored the trifecta". He faces:-

* the access point to the basement carpark which is approximately 2m from his property boundary;

* the kitchen, food preparation area and a waste disposal area located approximately 2m from his property boundary and his private open space;

My first thoughts were that the only way to nullify these noises would be to lobby for high solid fencing, sound proof windows, rubber paving and so on. However, after some time, I realised that I was wrong to be forced into this "siege mentality". As the report by Tim Biles points out Landcox Street is an "established urban residential area ... comprised of residential detached dwellings with established gardens". The very least that I should expect in such an environment is to have on the other side of my boundary fence something that would not adversely affect the quality of my families life. The applicant's plans mean that our direct neighbours are a car park ramp, a rubbish bin area and a loading bay.

This is a totally unacceptable situation and the applicant needs to revise their plans so these parts of the facility are located centrally within the site to ensure no loss of amenity to mine or any other adjoining property.

To meet Mr Hardy's concerns, the Applicant is prepared to accept a condition requiring the provision of a 2.5m high acoustic fence, the enclosure and venting of the bin storage area and sound attenuation material along the pathway leading to that area. Mr Grogan also suggested that the loading bay could be moved a little further away from the boundary.

It was argued that the car parking provision would prove to be inadequate. However, in this regard, the arguments put forward by both the Responsible Authority and the objectors were founded entirely on untested assertions. It is noteworthy that the only professionally prepared material before the Tribunal, namely, Mr Grogan's evidence and the officer's report to the Council, each agreed that the number of spaces provided was adequate.

The Planning Scheme does not specify a particular requirement for retirement villages and hence an empirical analysis of other similar facilities provides the most reliable basis for establishing parking demand. The Tribunal accepts Mr Grogan's analysis. It is satisfied that the parking provision is adequate. It is also satisfied that the internal layout of the basement car parking is satisfactory.

The Council contended that the setbacks along both the northern and southern boundaries should be increased. The Tribunal rejects this contention. The proposal provides setbacks which exceed normal planning requirements. The setbacks also exceed what would be required in the event that the land was subdivided and developed with two storey housing in a conventional manner. There is ample space for landscaping in the setbacks provided and the Responsible Authority's concerns in this regard are unfounded.

That a reasonable standard of amenity would be provided for future occupants was not seriously challenged. The plans include provision for such facilities as a gymnasium, salon, library, medical facility and an activities business centre.

The Tribunal accepts that the accommodation to be provided will be of a high standard.

13. This site offers a splendid opportunity to produce a high quality planning outcome. The Tribunal believes that the present layout fails to capitalise on the attributes of the site. There are two principal reasons which have led the Tribunal to this conclusion.

14. The first is the apparent bulk of the building itself. Landcox Street is not an arterial road; it is a residential street and its housing stock is characterised generally by quite modest dwellings.

15. The Tribunal accepts that there has been an endeavour to break up the mass of the building by the use of various architectural techniques. However, such techniques inevitably have their limitations. The Tribunal believes that far more work is necessary to reduce the mass of the building, by creating intervals, by introducing more recessive elements, by staggering setbacks and by creating increased landscaping opportunities within the front setback area. More attention also needs to be given to the roof treatment which tends to exacerbate rather than reduce the impact of the building.

16. The second area of concern relates to the amenity of the property to the north. The Tribunal accepts that an aged care facility is generally, as Mr Biles put it, "a benign use". However, in this instance, the most active hub of the building will be the kitchen/meals preparation area which will have the responsibility of preparing perhaps one hundred meals three times daily. It is likely thus that this area will be constantly in use, with the attendant noise and commotion which invariably accompanies such activities. Why it was found necessary to place these facilities, together with the bin storage area, so close to the private open space of a residential dwelling when the site is of the magnitude involved here, represents something of a mystery. Certainly no satisfactory explanation was forthcoming during the course of the hearing.

17. The present layout also gives rise to the need for a 2.5m acoustic fence to intercept noise arising from the use of the ramp to the carpark. On the limited material before it, the Tribunal is not convinced that this treatment is absolutely necessary. It seems that the cure may be worse than the disease. However, the reasons given for placing the basement entry ramp so close to the boundary of a residential property have more to do with optimising the layout from the Applicant's viewpoint than any desire to respond to legitimate neighbourhood concerns. The Tribunal is inclined to agree with Mr Hardy's point that it is the cumulative effect of the kitchen/garbage bin area/carpark entry/loading bay than any one particular item taken in isolation, that has caused him to vigorously oppose this proposal.

18. Having regard to these matters, the Tribunal believes that the present proposal is unsatisfactory. The building itself is too bulky for its setting and too institutional in appearance. The layout is such that the amenity of the property to the north would be severely prejudiced. For these reasons the Tribunal is not prepared to grant a permit for the proposal in its present form.

19. The Tribunal gave consideration to adjourning the matter and allowing the Applicant the opportunity to prepare amended plans which address the criticisms contained in this determination. On balance however, it has come to the conclusion that such a course is not appropriate in this case. The manner in which the proposal addresses Landcox Street needs substantial reappraisal, and the design needs to ensure that any adverse consequences of the use are contained within the curtilage of the site.

20. For all these reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed.