Bensons Property Management Group v Boroondara CC [2011] VCAT 533

1. The decision of the Responsible Authority in permit application PP10/00700 is affirmed. No permit is granted.

• Mr J Govenlock, Town Planner of Urbis.
• Mr S Calhoun, Landscape Architect of Tract Consultants Pty Ltd.

The evidence of Mr D Bullock of Evolv3design Pty Ltd was provided. The parties agreed that Mr Bullock did not need to be called.

Construction of a seven-storey building (plus basements) accommodating 132 dwellings, three shops, a restaurant and associated car parking.

Application under Section 79 of the Planning and Environment Act 1987.

Cl 34.02-1 (use of land in the B2Z for dwellings, shops and restaurant).

Cl. 34.01-4 (construction of buildings and works on land in the B2Z).

Cl. 52.06 (reduction of the car parking requirement).

Clauses 10, 11, 11.01, 11.04, 15, 15.01, 16, 16.01, 17, 17.01, 18, 18.02, 21, 22.02, 22.03, 22.10, 34.02, 45.03, 52.06, 52.07 and 65.

The review site is located on the south-west corner of Camberwell Road and Redfern Road in Hawthorn East. It is a site with a 61.02 metre frontage to Camberwell Road, a 40.8 metre sideage to Redfern Road and an overall site area of 2532 square metres. Occupying the land are two, two-storey commercial buildings and associated car parking.

Land on the opposite side of Camberwell Road is developed and used for commercial purposes. Buildings are generally in the range of three-to-five storeys in height. To the south, on the opposite side of Redfern Road are dwellings of a two and three-storey scale. To the east is the Camberwell Tram Depot, while to the west is a public open space area (Fritsch Holzer Park).

Adjoining to the north-west is a two-storey medical centre which is constructed to the common boundary. To the south-west is a large, three-storey office development which is currently occupied by 'Shell Australia Limited'.

The surrounding land displays a diversity of both land use and built form.

CSTP Pty Ltd v Boroondara CC & Ors [2009] VCAT 1078.

1. Bensons Property Management applied to the Boroondara City Council for a permit to construct a seven-storey mixed-use development (plus basement car park) on the review site. Notice of the application was given and objections were received. The Council did not decide the application within the prescribed period, and Bensons has applied to the Tribunal for a review of the Council's failure to make a decision.
2. Since the lodgement of this Application with the Tribunal, the Council has assessed the proposal and, consistent with the recommendation of its officer, determined to deny its support on grounds which relate primarily to the height, siting and design of the building. Residents who lodged objections to the planning application oppose the grant of a permit on similar grounds.
3. The key issues for determination in this matter are:
   • Is the proposed built form acceptable having regard to the strategic and physical context of the site?
   • Will the development provide an acceptable level of internal amenity for its occupants?
4. We must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, we have decided to affirm the Responsible Authority's decision. Our reasons follow.

Is the proposed built form acceptable having regard to the strategic and physical context of the site?

1. The review site forms part of the Camberwell Junction Principal Activity Centre. Policy[2] directs higher density developments to locations such as this to make greater and more efficient use of existing infrastructure and services (including public transport); contribute to the on-going viability of the centre; increase the accessibility of residents to a range of employment opportunities and commercial activities; and achieve more sustainable development outcomes. The consolidation and further development of activity centres plays an important role in the implementation of the metropolitan strategy of achieving a 'more compact city'[3].
2. The Applicant's submissions and evidence placed significant weight on the activity centre, economic development and housing policies of the planning scheme. Their submission is that, given the Principal Activity Centre context of the review site, the development of the land should be optimised. Identified benefits include the provision of a diversity of housing types within the centre, the introduction of further economic activity, increased public transport patronage and support for the local economy. These submissions were not opposed, or disputed, by the Council. Indeed, the Council's submission fairly acknowledged that the review site is a suitable candidate for redevelopment in a manner which is consistent with those policies of the Planning Scheme that are directed at consolidating the existing urban area - in particular, activity centres such as Camberwell Junction.
3. Where the views of the Council and residents differ from those of the Applicant is in respect of the suitability of the proposed built form to the site and its context. In summary, those opposing the application contend that the development is too high, and that it should incorporate setbacks from both Camberwell Road and Redfern Road. They variously submit that the development should not exceed three or five storeys in height. Our attention was drawn to the fact that a permit for the construction of a five-storey development accommodating offices, restricted retail premises and restaurant was issued for the land by the Council on 3 July 2008[4]. The Council's position is that five-storeys represents an acceptable height for development on this land.
4. Conversely, the Applicant's submission is that the proposed seven-storey height represents an acceptable outcome having regard to the activity centre context, the size of the review site and the absence of sensitive interfaces.
5. In addressing the strategic context of the site, the Council's submission made reference to the state planning policy at Clause 15 which encourages high quality urban design and architecture. The theme of achieving a high standard of design and development within this activity centre is also found within the Local Planning Policy Framework, notably in the policy that applies to the Camberwell Junction[5]. According to the policy, development should not only be of a high standard, it should protect the amenity of residential areas and maintain the scale and character of the Junction's buildings. Specifically, it is policy that all new developments respect the present character and scale of the Junction. Of relevance to this proposal is the policy's reference to an 11 metre height limit for development on the review site, and to the provision of a 3.0 metre wide landscaped setback adjacent to both Camberwell Road and Redfern Road.
6. The Council also referred to the adopted Camberwell Junction Structure Plan (2008). We were advised that the Structure Plan has been submitted to the Department of Planning and Community Development for approval pending the preparation of an Amendment to introduce it into the Planning Scheme. A formal response from the Department has not been received, although it is understood that the Department is assessing the Structure Plan within the context of the on-going formulation of an Activity Centre zoning for the Camberwell Junction. On this basis, the Council did not contend that we should give it the weight of a seriously entertained planning proposal. Rather, it was submitted that we should have regard to the strategic intent of the Structure Plan in assessing the appropriateness or otherwise of the proposed height.
7. Consistent with Clause 22.02, the Structure Plan nominates an 11 metre, or three-storey, height for development on this land. The Council submission is that the development should display a three-storey height to the street frontage, with no more than two levels above being set back to give them a recessive appearance - a total of five levels. This position was supported by Mr Holdsworth in his evidence.
8. In contrast, the Applicant's submission is that limited weight should be afforded to the height limit referred to in Clause 22.02. This submission was made on the basis that the height is derived from the 1993 Structure Plan, and that there has been a significant change to the policy landscape of activity centres in the intervening period as a consequence of the introduction of the metropolitan planning strategy Melbourne 2030 and the more recent update Melbourne @ 5 million[6]. Essentially, the Applicant submitted that a three-storey height as recommended in the 1993 Structure Plan is an under-development of the land and is not consistent with the State policy imperatives of increasing densities within activity centres of this order.
9. The Applicant made a similar submission in respect of the 2008 Structure Plan. It was put to us that very limited, if any, weight should be given to this document. In fact, the Applicant went so far as to state that the Structure Plan should not play any part in our deliberations on this matter.
10. In support of its position the Applicant referred us to the Tribunal's decision in the matter of CSTP Pty Ltd v Boroondara CC & Ors [2009] VCAT 1078[7] where the Tribunal made specific comment on the weight to be given to the 2008 Structure Plan in that case. In determining not to accord any significant weight to the document, the Tribunal noted that it is not in the planning scheme, there is no planning scheme policy which seeks to give effect to its recommendations, and authorisation to prepare and exhibit a corresponding planning scheme amendment has not been granted. Relevantly, the Tribunal stated:

[34] We can contemplate circumstances where it is appropriate to consider a structure plan where that plan does not form part of the planning scheme. For example, a structure plan may build on those policies and strategies contained in a planning scheme and may provide more detailed guidance for the development of an activity centre than that contained in the planning scheme. In such circumstances, the structure plan is complementary to the planning scheme and gives effect to the policy directions encompassed within the planning scheme.

[35] These circumstances do not apply in this case. The 2008 Structure Plan, particularly as it relates to Camberwell Station, does not complement the planning scheme's policies and provisions. The 2008 plan in our view conflicts with and contradicts the State and Local policy framework of the planning scheme. It is not therefore a document which makes any significant contribution to the task we must undertake in the balancing of policies as they relate to this site.

1. Although the comments are made within the specific context of that application, we agree with the sentiments expressed that limited weight should be given to the Structure Plan if it conflicts with, and contradicts, the Planning Scheme's policy frameworks. We also agree with the Council, Mr Holdsworth and the Applicant, that the site should reasonably accommodate development of more than three-storeys in response to its Principal Activity Centre location, the emerging scale of development, and the absence of sensitive interfaces. Ultimately, we have not found the Structure Plan to be of particular assistance to us in our assessment of the development's height.
2. Where this leaves us is that, other than indicating that multi-level development is an acceptable outcome on the land, neither the Planning Scheme nor any other planning document provides us with any real guidance as to what the overall height of the development should be.
3. It is evident that the built form and character of Camberwell Junction are changing. This is a consequence of the implementation of activity centre policy which envisages, and facilitates, a far greater presence of higher density development in this location than has occurred in the past. Examples of the emerging scale of development are found in the vicinity of the review site, most notably on the northern side of Camberwell Road. We also note that there are several vacant properties to the west of this site, which most probably will be redeveloped in the future.
4. We are persuaded that within this context of built form change, on a corner site that has frontage to a main arterial road and lacks abuttal to a residential area, there is scope to accommodate a height that exceeds that previously approved on this land. We are also influenced by the fact that the development is of a high architectural standard and will make a positive contribution to this part of the Junction. The five lower levels of this seven-level proposal, being that part of the building which extends to the frontage, will function as the primary presentation to the street. These floors are accentuated by anodised aluminium screens that create a high level of visual interest and strongly articulate the building's façade. Further, and significant, modulation is provided by the central courtyard, beginning at the first floor, which serves to separate the northern portion of the building into two wings and avoids the creation of an expansive façade across the Camberwell Road frontage. The result is a well executed design response that will make a positive contribution to the overall composition of the locality. While the eastern elevation has a more restrained architecture, it is nonetheless reflective of that adopted for conventional apartment style developments and is of a suitably contemporary appearance.
5. Having considered the design response within the physical and strategic context of the site, we have concluded that that part of the development which is proximate to the frontage should be reduced in height by one level. The proposed five-storey height, in our view, gives the building an unduly prominent presence in the streetscape. A more moderated response is warranted to achieve an acceptable fit between the existing and emerging scale of development. We believe that this is best achieved by deleting Level 4, although it doesn't really appear to matter whether one of Levels 1, 2 or 3 are deleted instead, as these levels are identical and the same outcome of a reduced height at the street interface will be achieved.
6. The deletion of one level would also have the effect of lowering the overall height of the building to achieve a scale which is representative of that displayed by the more recent multi-level developments in this area of the Activity Centre. Although it will be higher than what has been approved to date along Camberwell Road, this variation is only in the order of one storey and should not result in the building having a scale which stands in marked contrast to these other developments.
7. That said, we note that the development on the opposite side of Camberwell Road has a 'stepped' profile where the uppermost levels have a greater front setback than those below. We think that this represents a respectful outcome and assists in assimilating these taller developments with the lower buildings that characterise the Activity Centre. We consider that a similar response is warranted for the review site. This can be satisfactorily achieved by deleting the two northernmost dwellings, fronting Camberwell Road, on the existing Level 5 (which would become Level 4 with the deletion of the current Level 4). The topmost level can retain its current setback from Camberwell Road and, will become Level 5. These two top levels would be recessive elements of the building and not appear unreasonably prominent within the streetscape, or in the longer range views along Camberwell Road.
8. Subject to the above modifications, we consider that the resultant height would be acceptable.
9. The Council submitted that a 3.0 metre wide landscape setback should be provided along the Camberwell Road frontage and Redfern Road sideage of the review site. The Applicant's submission is that the provision of such a setback is not warranted and referred to the elevated courtyard as a design response that achieves a more meaningful urban design outcome (by separating the upper levels of the building into two forms) than the provision of a ground level setback. The Applicant similarly opposed any requirement for a setback along Redfern Road as, it was submitted, it would provide little benefit and is likely to become a poorly maintained area that accumulates litter. On the opposite side of Redfern Road is the tram depot building. The building extends to the frontage and sideage of that property. The Applicant submitted that the development should emulate this siting to 'address and hold' the corner. To the extent that it may be relevant to our consideration, the Applicant drew our attention to the fact that the existing permit for a five-storey development on the land, approved by Council, does not incorporate the street setbacks sought by Council in this instance.
10. In contrast, the Council submission is that within the Camberwell Road context, Redfern Road represents the transition from the fine-grain, hard edge form of the traditional commercial development that is proximate to the Junction to an environment characterised by larger format buildings set behind landscaped setbacks. It submits that the proposal should continue this pattern of development.
11. We understand that Redfern Road operates as a heavily used thoroughfare on the basis that it provides a vehicular connection between Camberwell Road and Riversdale Road and is used by motorists seeking to avoid the traffic lights at the six-ways intersection. We were also advised that it is proposed to signalise the intersection of Redfern Road and Camberwell Road. It appears to us therefore, that the role of Redfern Road as an important connector between two main arterial roads is likely to continue into the future.
12. Given the corner location of this property, we accept the Applicant's submission that the building should extend either to, or close to, the road abuttals to mark this intersection. It will provide a 'companion' to the hard edge treatment displayed by the tram depot building which, although not presently within a Heritage Overlay, appears to us likely to be retained as part of any future redevelopment of that site. However, we consider that a minimum setback in the order of 1.8 metres should be provided from the Camberwell Road frontage, to the ground floor only, to facilitate pedestrian visibility and circulation at the Redfern Road corner. The three levels above ground can be built to the Camberwell Road frontage as drawn. We observe that both the existing building on the site and the tram depot opposite incorporate a splay at their corners to respond to this issue. We have not been persuaded of any urban design (or other) benefits arising from a setback from the Redfern Road sideage and do not therefore consider that such a setback is necessary.

Will the development provide an acceptable level of amenity for its occupants?

1. Our key concern with respect to the internal amenity of the proposed dwellings is the substantial reliance of bedrooms on borrowed light. The Guidelines for Higher Density Residential Development[8] include the following design objective and design suggestion:

To ensure that a good standard of natural lighting and ventilation is provided to internal building spaces.

DESIGN SUGGESTION 5.4.1: PROVIDE DIRECT LIGHT AND AIR TO ALL ROOMS WHEREVER POSSIBLE.

Encourage direct natural light and ventilation to all habitable rooms - living rooms, bedrooms, studies - in the form of operable windows. The 'borrowing' of light and air should be avoided, particularly in ventilating bedrooms, although this may not always be possible, when reusing existing buildings. Where light is borrowed from another room, ideally it should be taken from the principal living area rather than from corridors or other bedrooms

1. It was put to us that this design solution is becoming increasingly common in apartment style developments and has been accepted by the Tribunal on numerous occasions. Having reviewed a number of decisions[9], we note that there appears to be an emerging 'theme' that, in the main, borrowed light can be considered acceptable for the bedroom areas of single bedroom dwellings, or for study rooms, but less so for a bedroom in two-bedroom dwellings due to inherent privacy and amenity issues. This position has been expressed in both the evidence of experts in those cases, and the conclusions reached by the Tribunal. A further consideration has been the number of dwellings that incorporate bedrooms that are reliant on borrowed light.
2. This development proposes that 87 out of the 132 dwellings would have an internalised bedroom without direct access to natural light. We consider that this reliance on borrowed light to be excessive and, consequently, unacceptable.
3. In our view, the reliance on borrowed light to the bedrooms of single-bedroom dwellings can represent an acceptable (although not ideal) outcome. The generally sole occupancy nature of such dwellings means that the residents have the flexibility of leaving the bedroom area open to the main living area if they so wish without having to contemplate any privacy concerns arising from other occupants using the living area, for example. Relevant factors for consideration in assessing whether reliance on borrowed light represents an acceptable outcome in any instance include the distance of the bedroom from the light source, the layout of the dwelling, and the amenity of the dwelling as a whole, amongst others.
4. Mr Govenlock tabled revised plans that demonstrate how the layout could be improved to address this issue. Essentially, the second bedroom in the affected dwellings has been relocated to be adjacent to the living area and provided with sliding panels that allow the room to be either open or closed to the remainder of the dwelling. While this is an improvement on the plans that are the subject of this application, in our opinion the changes do not go far enough.
5. We can see no reason why the two-bedroom dwellings within this development should not (or could not) be re-designed to provide each bedroom with an external window. This is particularly so given the provision of a substantial north-facing courtyard area which allows light and ventilation to be provided to those dwellings which do not face the perimeter of the building. The provision of a window to all bedrooms can be achieved for the dwellings that are not located at the corners of the building, as is demonstrated by the south-west facing dwellings on Level 5. Such a change may result in a reduction in dwelling yield, but in our view it will result in an acceptable level of amenity for the dwellings that are provided. The Applicant did not draw our attention to any evident site constraint, or other factor, which prevents this outcome. We also observe that all the existing buildings on the land are to be demolished, effectively providing a vacant, well-proportioned site with three road abuttals for development. It is not a constrained site which somehow justifies a design response where direct light and ventilation is not provided to both bedrooms in the two-bedroom dwellings. We are not persuaded that the development will achieve a satisfactory level of amenity for occupants of those two-bedroom dwellings that incorporate an internalised bedroom.
6. We have given consideration to whether this issue can be satisfactorily resolved by a permit condition, but have concluded that a fundamental revision of the dwelling configuration and layout is required. It may have implications for the composition and external appearance of the development, and may potentially warrant a significantly different design response. We consider that this is best addressed as a new planning application.

1. For these reasons we have concluded that the application should not be approved in its current form. Our principal concerns relate to the overall height, the height of the development at the street frontage, the setbacks of the upper levels, the setback of the ground floor to Camberwell Road and the extent to which borrowed light is relied upon by the two bedroom dwellings.
2. We will therefore affirm the decision of the Responsible Authority. No permit is granted.

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

[3] Melbourne 2030 Planning for Sustainable Growth (Department of Infrastructure 2002).

[4] An extension of time to the permit was approved on 31 May 2010. The permit will expire if the development is not commenced by 3 July 2011 and completed by 3 July 2013.

[6] Department of Planning and Community Development December 2008

[7] Otherwise more commonly known as the Camberwell Railway Station case.

[8] Department of Sustainability and Environment (2004)

[9] These include: Citi Road Apartments Pty Ltd v Port Phillip CC [2006] VCAT 1070; Nelrup Pty Ltd & Ors v Stonnington CC & Ors [2010} VCAT 2036; Lazzcorp Developments Pty Ltd v Stonnington CC & Ors [2010] VCAT 1081; SPEC Property Development v Boroondara CC [2010] VCAT 1216; Ausbuild Constructions Pty Ltd v Frankston CC [2010] VCAT 1778; 34-38 Albert Road Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1800; PDG Corporation v Yarra CC [2009] VCAT 737; and La Strada Pty Ltd v Moreland CC [2010] VCAT 1861.