Blumberg v Stonnington CC [2006] VCAT 1113

Blumberg v Stonnington CC [2006] VCAT 1113 - VCAT 2006 case summary — Zoe

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27 Council's urban designer wants a small communal area, possibly a play area, created by setting back townhouses 11-13 further from the central pedestrian walkway. Mr Bowden submitted this would add to the walkway's amenity and safety, and increase the useability of the walkway.

28 Mr Song and Mr Bisset pointed out the walkway will provide residents with secure access via gates at either end, so the Council's security concerns are unfounded. They also pointed out that, whilst the amenity and useability of the walkway may be enhanced by a communal area, the amenity of the surrounding townhouses and dwellings would not. Mr Bisset said not everyone appreciates having people congregate adjacent to their principal place of residence. He suggested a more suitable location for communal open space is outside the Malvern Road entrance to the pedestrian walkway, with the provision of seating and landscaping.

29 Clause 55 does not specifically require the provision of communal open space as part of a medium density housing development; instead it is a matter of choice. It does require the provision of adequate private open space for the reasonable recreation and service needs of residents. The proposed private open space areas vary greatly in size from 29.2 to 222 square metres. I am of the view the provision of 29.2 square metres of private open space for 3 four bedroom townhouses is a poor design outcome. Whilst I may not have decided to refuse this proposal for that reason alone, the lack of reasonable private open space for three very large homes is an indication of the tightness of this development. If the site is situated close to public open space areas, there may be some justification for permitting smaller private open space areas. Similarly, if any communal open space provided on the site was of a size and design that is likely to be well patronised, that may also provide some justification for smaller private open space areas.

30 Clause 56 (relating to subdivision of land) encourages public open space to be of a quality and character that relates to its potential functions. Further, the location and design of public open space needs to be carefully planned for having regard to the characteristics of the site and neighbourhood and the likely users. I am not persuaded that the form of communal open space sought by Council or proposed by the applicant will achieve any beneficial quality, character and purpose for the future residents.

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33 In determining whether the proposal is respectful of the neighbourhood, I inspected the site and surrounds and noted no changes to the neighbourhood since the previous determination by Member Alsop and myself. Last time, we were critical of the two and three storey attached built form along Malvern Road and we offered a suggestion in our reasons about how a two storey built form with improved separation between individual building forms along Malvern Road could be an appropriate alternative. I note this proposal incorporates effectively three building forms along Malvern Road. The first are the two dwellings at the northwest end of the frontage that appear attached, albeit they are separated by about 50mm. The second building form is the row of townhouses, of which the sideage of townhouse 10 fronts Malvern Road. The last building form is dwelling 1 that is situated adjacent to the street corner with its frontage to Cairnes Crescent and its sideage to Malvern Road.

34 Overall, the two storey scale and separation of the building forms is an improvement but I find the development does not integrate well with the streetscape. The fact that two of the buildings have their sides facing the street, containing solid elements and screening, means they have no real frontage to Malvern Road. In my opinion, these flaws are not fatal and could be fixed so that there is more integration with the street, perhaps with more windows overlooking the street and/or these buildings actually fronting Malvern Road.

35 In regard to Cairnes Crescent, the previous development featured tall, square 3 and 4 bedroom dwellings and double garages with high parapet facades, all of which were attached. In this proposal, the design of the Cairnes Crescent dwellings is more of a townhouse design with smaller frontages and longer floor levels so that the first floor levels are actually a little larger than the ground floor levels and project out over the front façade of the ground floor. The first floor façade features a gable end and this is respectful of the commonly found pitched roofs in this neighbourhood. However, I am of the view the projection of the first floor front facades and the use of rendered cement sheeting and louvres over the first floor windows create a solid appearance that emphasises the bulk of the buildings in the street. Again, I find these flaws are not fatal and could be fixed by modifying the designs of these dwellings.

36 The Council and the applicant argued greater separation has been created in the design of the Cairnes Crescent dwellings because each dwelling or pair of dwellings are separated by single storey double garages. The Council also argued the separation will be further enhanced as the permit conditions require the garages of some of the dwellings (dwellings 1-5) to be lowered further into the ground so they have a maximum height of 2.36 metres above natural ground level. I am not persuaded that the siting of single storey double garages between the dwellings creates an appropriate form of separation. The fact is the entire southeast elevation is attached and the northeast elevation is broken only by the 1.85 metre wide pedestrian walkway, which is fenced and gated for security reasons. The extent of the attached built form, the detail of the dwellings and garages along Cairnes Crescent, including the projecting first floors, creates a solid appearance that continues to result in a dominant built form, which is not respectful of the neighbourhood character. In my opinion, the building form should be broken up by creating side setbacks between some of the dwellings/garages so there are open spaces within which some landscaping could be planted. In my opinion, such a change will result in the number of dwellings along Cairnes Crescent being reduced.

37 Mr Blumberg expressed concern about the visibility of the row of townhouses in the middle of the site from Cairnes Crescent across the lowered level of the SCOPE property, particularly the 4 three storey townhouses. I agree that the SCOPE property is open and exposed along the common property boundary because of its site cut and lowered natural ground level combined with the open space and car parking areas adjacent to the common property boundary. This does expose the northwest elevation of the proposal to a much greater degree.

38 Sections of the roofline of the three storey dwellings do not comply with the side setback standard (B17) of clause 55 and the Council is of the view compliance is not necessary as it does not cause concern with regard to visual bulk. The consideration of visual bulk is contained in the building height decision guidelines[5] and includes:

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40 The row of townhouses is setback between 6.5 and 7.3 metres from Malvern Road and then runs for a length of about 57.5 metres into the site. There are a total of 9 townhouses and they front onto a pedestrian walkway that extends from Malvern Road through to Cairnes Crescent.

41 Each of the townhouses is setback between 2 and 3.5 metres from the walkway, and they are situated opposite the rear private open space areas of dwellings 1-5 and 7. Hence, the separation between the townhouses and these private open space areas (including the pedestrian walkway) is limited. This means that all of the first floor windows in the townhouses and the dwellings must be screened in order to limit overlooking and this, in my opinion, results in a poor level of amenity for all of the dwellings. The extent of screening devices required on all internal elevations of this development seems to have been carried through to a number of the other elevations as a design feature and, as a result, most of the dwellings contain extensive screening and, again, I am of the view this creates a poor level of internal amenity for the dwellings. Further, the juxtaposition of the row of townhouses within the middle of the site accessed via a walkway that is adjacent to the back fences of other dwellings creates a poor sense of address and entry.

42 The extent of development in the middle of the site appears dense with limited landscaping opportunities due to the walkway, front entries, and the decking/terracing. The combined length and height of the building forms on both sides of the walkway creates a significant visual presence that I consider will overwhelm the small frontages of the townhouses, the walkway and the rear gardens of the dwellings.

43 I appreciate there are difficulties associated with achieving an appropriate design for the middle of this site. However, I do not consider these difficulties have been appropriately dealt with by creating a row of townhouses accessed via a central walkway and immediately adjacent to the rear secluded private open space areas of dwellings. A more creative and, more than likely, a less intensive built form response is required on this site.

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Blumberg v Stonnington CC [2006] VCAT 1113 (13 June 2006)

Parties