[2006] VCAT 1113

With respect to permit application 0822/05, the Responsible Authority's decision to grant a permit is set aside.

The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.

For Applicant for Review P299/2006 & Respondent to P174/2006

Mr P Bisset, solicitor of Minter Ellison Lawyers. He called the following expert witnesses to give evidence and be made available for cross-examination:

Mr D Song, town planner of Aspect Town Planners; and

1 This matter concerns a proposal to construct 20 dwellings with associated car parking including access to Malvern Road, together with the removal of native vegetation[1] at 1995-2005 Malvern Road, Malvern East.

2 Two applications for review have been lodged. The first is an application by Mr Blumberg to review the decision by Stonnington City Council ('the Council') to grant a permit for this proposal. The second is an application by Crowncross to review conditions 1(c)[2], (e) and (m) of the Council's decision to grant a permit. These conditions relate to the details and height of the fence along the internal pedestrian walkway; the creation of a small communal play area; and details of an on-site stormwater recycling facility for each dwelling.

3 The site is located within an established residential neighbourhood in Malvern East and has frontages (effectively 3 street frontages in total) to both Malvern Road and Cairnes Crescent. It is a large property with an area of about 5,525 square metres that currently contains vacant land and derelict institutional style buildings, together with a variety of mature trees and vegetation.

4 The site is bounded on three sides by roads, being Malvern Road to the southwest and Cairnes Crescent to the northeast and southeast. It has an existing driveway on Malvern Road and an existing driveway on Cairnes Crescent. The site has a fall of approximately 6 metres from Malvern Road to Cairnes Crescent.

5 The Council advised the site consists of two Certificates of Title, being Volume 05740 Folio 997 (a typical residential sized allotment at the northwest end of the Malvern Road frontage) and Volume 10785 Folio 622 (the balance lot). There is a covenant that affects the first Title, which states:

No more than one detached residence with usual outbuildings and such residence shall be erected on the site and not cost less than one thousand pounds exclusive of outbuildings and fencing and shall be of brick, stone or concrete and shall have a roof of tiles or wooden shingles or slates.

6 Abutting the site's northwest boundary are two properties. No. 1993 Malvern Road contains a single storey brick dwelling setback 8.2 metres from the street with a circular driveway in its frontage setback. This dwelling is also setback 1.5 metres from the common property boundary with this site. The other property contains a single storey institutional building operated by SCOPE that has frontage to Cairnes Crescent.

7 The site and surrounding residential properties are all contained within a Residential 1 Zone under the Stonnington Planning Scheme ('the Planning Scheme'). A planning permit is required to construct more than one dwelling on a property. Clause 55 of the Planning Scheme must be considered, including its objectives, standards and decision guidelines.

8 Malvern Road is contained within a Road Zone No. 1. A permit is required to create or alter vehicular access to this road[3].

9 The site is greater than 4,000 square metres and it appears to contain at least one native tree (native vegetation) that does not benefit from the exemptions of clause 52.17, hence planning permission is required for the removal of native vegetation.

10 There are no overlay controls that affect the site or surrounding properties.

11 The State Planning Policy Framework, including Melbourne 2030, encourages a more compact city through the consolidation of existing urban areas, including the development of well designed medium density housing that respects neighbourhood character.

12 The Municipal Strategic Statement ('the MSS') in the Local Planning Policy Framework acknowledges urban consolidation and the housing needs of the municipality. The MSS also emphasises the importance of maintaining the character and amenity of residential areas. The character and amenity of residential areas is reiterated and further emphasised in the Urban Design local planning policy at clause 22.02 and the Residential Character local planning policy at clause 22.06.

13 This is the second application for review relating to the residential development of this site. Last year, Member Alsop and I refused a proposal to develop 17 dwellings with associated car parking and to subdivide the land into 18 lots[4]. The development comprised:

•

2 blocks of 4 attached two and three storey dwellings along the Malvern Road frontage with double garages behind accessed via a new private road off Cairnes Crescent;

•

3 attached double storey dwellings fronting the new private road; and

•

5 attached double storey dwellings fronting Cairnes Crescent.

i

The site is a suitable location for a medium density housing development having regard to both the State and local planning policy frameworks of the Planning Scheme.

ii

The provision of 3 & 4 bedroom dwellings can meet varying housing needs; however, the type and size of the dwellings needs to be considered in light of neighbourhood character and residential amenity.

iii

The provision of two car spaces per dwelling complies with the Planning Scheme and visitor parking in the street for dwellings with frontage to Malvern Road and Cairnes Crescent is appropriate.

iv

Cairnes Crescent and the southern intersection of Cairnes Crescent and Malvern Road are capable of accommodating the additional traffic generated by this proposal.

v

The open and exposed SCOPE property to the north increases the visual bulk and visual impact of proposed garage walls to be built on the common property boundary.

vi

The proposal creates a vacant allotment to the northwest in Malvern Road, and 67% of the length of this allotment would be built up against by walls of up to 7.5 metres in height creating an unacceptable visual bulk.

vii

The combination of two and three storey height, the attached built form, and the 6 metre setback along the Malvern Road frontage created a large building form in both scale and bulk that overwhelmed the streetscape and was not respectful of the neighbourhood character.

viii

The three dwellings accessed via the new private road were poorly sited with no sense of address.

ix

The two storey dwellings along Cairnes Crescent resulted in a dominant built form that was not respectful of the neighbourhood character. Our concerns focussed upon the dwellings being elevated above natural ground level; garages with high parapet walls; siting a dwelling close to the Cairnes Crescent corner; and an attached built form extending 86 metres in length.

Our concerns with this proposal relate to the siting of the building forms, the scale of buildings, and the extent of attached building forms across all of the frontages of the site. As indicated earlier, we feel that a site of this size should be able to provide a higher density of residential accommodation than that found on the immediately surrounding properties. However, we find this proposal is an overdevelopment of the site, creating a visual bulk that does not respect the neighbourhood character, and creating a poor level of internal amenity and sense of address for some of the dwellings. Our concerns will require significant changes to the proposal and, as such, any revised proposal should be the subject of a new planning permit application. For these reasons, we are of the opinion that a permit should not be granted.

16 It does not appear there have been any significant changes to the circumstances of the site and surrounds, or the relevant planning policies and controls since this earlier determination, a fact which I note Mr Bisset also pointed out.

17 This proposal provides a total of 20 dwellings comprising:

•

2 double storey dwellings at the northwest end of the Malvern Road frontage, of which one has a double garage accessed off Malvern Road;

•

9 two and three storey attached townhouses running in a northeast/southwest direction from the Malvern Road frontage into the middle of the site, with a basement car park below containing 22 car spaces accessed via Malvern Road; and

•

9 two storey dwellings, each with a double garage along the Cairnes Crescent frontage.

18 The Council advertised the proposal and 22 objections were received. A consultative meeting was held, after which the applicant submitted a number of concept sketch plans that addressed some issues of concern. The proposal was then considered at a Council meeting, where the officer's recommendation to grant a permit subject to a number of design changes (including some of the detail in the concept sketch plans) was supported.

19 Mr Blumberg's grounds for review of the Council's decision are:

1. The proposed development is contrary to the objectives of the State and Local Planning Policy Framework as it does not respect neighbourhood character and will have a detrimental impact on residential amenity.

2. The proposed scale of the buildings throughout the site is excessive and does not respect the lower scale dwellings surrounding the site.

3. The terraces on the northern boundary will be visually intrusive and will dominate the area due to their height and bulk.

4. The frontages of the terraces do not respect neighbourhood character.

5. The proposal is an overdevelopment of the site.

7. The proposal will have negative and adverse impacts on traffic movement in Cairnes Crescent.

20 Mr Bowden advised the Council has formed the view that, subject to the series of changes required in condition 1 of the permit (items a to r inclusive), the proposal is an appropriate response to the previous Tribunal decision, the Council's policies and the issues raised by objectors. I disagree and find this new proposal, albeit it contains some positive aspects that have responded to the earlier determination of Member Alsop and I, is not respectful of the neighbourhood character and creates a poor level of internal amenity for future residents.

21 Before explaining why I have reached this decision, I will first comment on some other matters that were raised during the hearing, namely visitor parking and traffic; the covenant affecting the northwest end of the site; the small communal play area; and stormwater recycling.

22 Mr Blumberg expressed concern about the lack of on-site visitor parking and traffic in Cairnes Crescent. In the previous case, Member Alsop and I accepted visitor parking adjacent to the front of proposed dwellings, and I accept the same arrangement in this proposal as well. I note that visitor parking is provided in the basement off Malvern Road and I consider this to be an appropriate outcome also. I adopt Ms Partenio's evidence in this case that there is a reasonable balance between the loss of on-street parking because of vehicle crossings and the overall car parking provided on site. Whilst the number of dwellings contained in this proposal (20) is greater than the previous case (17), the layout of dwellings with a basement car park accessed from Malvern Road has actually resulted in a reduction in the number of cars utilising Cairnes Crescent. In the previous case, all traffic from the development used Cairnes Crescent and we accepted Ms Partenio's evidence that, despite its width, this street was capable of accommodating the traffic generated by that development. As a result, I maintain our previous findings and am of the view Cairnes Crescent can accommodate the reduced traffic volumes resulting from this proposal.

23 Mr Blumberg queried whether the dwelling at the northwest end of the Malvern Road frontage complied with the covenant. I note there are two aspects to the covenant, the first of which is the requirement for one detached dwelling. The Council and Mr Bisset submitted this is complied with and referred to a legal opinion from Arnold Bloch Leibler dated 28 November 2005 which concluded:

In our opinion, based on the ordinary meaning of the term "detached" the development of the residence 50 millimetres from the adjoining property would not constitute a breach of the Covenant, provided the building does not adjoin the building and is not connected (ie. is free standing).

24 I am unsure as to whether a 50mm setback, which Mr Bowden agreed with me is difficult to discern on the plans and elevations, complies with the covenant.

25 The second aspect of the covenant is the requirement for the dwelling to be constructed of brick, stone or cement with a tiled, wooden shingle or slate roof. The proposed dwelling features face brickwork and rendered masonry at ground level and rendered cement sheet cladding at first floor level with a colorbond roof. It appears the first floor and roof materials do not comply with the covenant.

26 Mr Bisset suggested the inclusion of a condition on the permit, if issued, requiring the dwelling to be detached and constructed of materials specified in the covenant unless the covenant has subsequently been ended or varied in relation to this site. As I have already determined to refuse this application for other reasons, these aspects of the covenant and the proposal can be reviewed and I suggest any subsequent design should correct any areas of non-compliance with the covenant.

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.

31 Condition 1m requires details of an on-site stormwater recycling facility for each dwelling with the collection of all water from each dwelling roof. Mr Bowden explained this condition was imposed as a result of comments from Council's engineers and he understood the applicant's concern with the condition is the inclusion of the word "recycling". Mr Bowden stated Council is not really opposed to the deletion of this word, but just feels stormwater recycling is a desirable outcome. Mr Bisset requested the wording of the condition be changed to require details of an on-site stormwater detention facility for each dwelling, and I am of the view this wording is appropriate.

32 So, this brings me back to what I consider to be the two main issues with this proposal, being its inappropriateness in light of the neighbourhood character and the internal amenity of the development.

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:

•

The effect of the slope of the site on the height of the building.

•

The relationship between the proposed building height and the height of existing adjacent buildings.

•

The visual impact of the building when viewed from the street and from adjoining properties.

39 On the one hand I accept that the siting of the three storey dwellings in the middle of the site can minimise the visual bulk impact upon the surrounding neighbourhood. But, on the other hand, the slope of the site and the natural ground level relationship between the site and the SCOPE property means these dwellings (plus other townhouses in this row) will be obliquely visible from Cairnes Crescent across the SCOPE property. These dwellings are built on a much higher ground level than the SCOPE property and have decking in their rear private open space areas. The extent of decking is necessary because there is a difference between the floor levels and ground level. I am of the opinion the combination of the extent of decking and the side setback distances limit the potential for the planting of any significant canopy vegetation that would assist to break up the length of the townhouses (as a whole) and the height of the townhouses, particularly the three storey dwellings. As a result, I am not persuaded that the visual bulk of the length and height of the townhouses adjacent to the SCOPE property has been appropriately dealt with.

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.

44 Despite some improvements to the proposed design, I remained concerned the proposal is not respectful of the neighbourhood character and creates a poor level of internal amenity for the majority of the new dwellings. Mr Bisset requested the opportunity to fix the proposal if I had concerns and whilst I have expressed comments on a number of matters which I feel could be appropriately dealt with, I find the fundamental issues of neighbourhood character and internal amenity will require significant changes to the proposed design. As such, I expect these changes will result in a very different and transformed proposal that should be the subject of a fresh permit application process.

For the above reasons, the decision of the Responsible Authority to grant a permit is set aside. It is ordered that no permit be issued.

[1] During the hearing Mr Bisset advised it appears at least one native tree requires planning approval for removal under the recently amended provisions of clause 52.17 so I granted leave to amend the application to include removal of native vegetation.

[2] Mr Bisset sought leave at the commencement of the hearing to amend this application to include condition 1(c). There was no objection to this request and I granted leave for this amendment.

[3] Pursuant to clause 52.29 of the Stonnington Planning Scheme

[4] Refer to Crown Cross Pty Ltd v Stonnington CC [2005] VCAT 787

[5] Clause 55.03-2 of the Planning Scheme