Brelis & Ors v Moreland CC [2011] VCAT 769

[2011] VCAT 769

Victorian Civil and Administrative Tribunal|2011-04-29|Before: Mr P

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Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2011-04-29

Before

Mr P

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

This matter concerns two applications to review the decision by Moreland City Council ('the Council') to grant a permit for demolition and alterations to a former school building and construction of two additional buildings. Overall, the development will contain 18 apartments with 16 car spaces in a basement at 490-492A Victoria Street, Brunswick West.
The Council received the application in May 2010 and, after publicly advertising it in July, the Council received 17 objections. The application was then considered at a Council meeting and the Council resolved to support the application subject to a number of permit conditions, including changes to the design to provide an additional 5 car spaces and to address potential overshadowing of an adjoining property (Mr Brelis' property).
This development forms the final stage of the redevelopment of the former Brunswick West primary school, and it is being undertaken by the developers (Westwyck Pty Ltd) who undertook Stage 1 that fronts Hunter Street. Stage 1 included the conversion of the former infants school into residential apartments and the construction of two new three storey buildings fronting Hunter Street with a central car parking area that also forms the main entry point. Ms Hansen highlighted the developers have won a number of awards for their strong and dedicated commitment to sustainability; and they run tours of Stage 1 for universities and environmental groups interested in sustainable development.
Surrounding residents (including some residents of Stage 1) are seeking a review of the decision because of concerns about the amenity impacts upon neighbouring properties; the car parking provision; and the vehicle access via School Lane. The applicant is seeking a review of the conditions imposed relating to the provision of additional car parking; the overshadowing of Mr Brelis' property; and the pop out stairwell, the windows and the front fence of the former school building.

[2]

[12]

Of the new elements in the front elevation of the school building, the pop up staircase is the most contentious for the Council. Ms Pound explained the proportions and location of it have little relationship to the school building. The Applicant and the Council have endeavoured to resolve this by discussing alternate designs and locations for the staircase, however Ms Pound stated an appropriate design was difficult to resolve and hence the Council decided to impose condition 1(c) requiring the deletion of this element.
Mr Lovell acknowledged the staircase is a design choice that does not have to happen and its inclusion is challenging. He acknowledged it is possible for it to be done another way, although he did not support the Council's suggestion that it be moved into the internal courtyard. This is because Mr Lovell considers the internal courtyard to be one of the most significant historical components of the building. Mr Lovell observed there are no internal heritage controls that apply, but described the Applicant's work in Stage 1 as an "exemplary adaptation" and commended the intention to keep the main walls of these classrooms and the internal courtyard. Having inspected the internal courtyard and the main room that will comprise apartment 3/492, I appreciate that the location of the staircase has derived from the intention to maintain the existing roof trusses and beams. I agree with Mr Lovell that, from an internal perspective, this is a sensitive design response.
Mr Lovell described the Council as being brave by allowing much of the changes proposed to this building, and he suggested the Council and the Tribunal should continue to be brave by allowing this staircase. He acknowledged the staircase is off-centre in the front façade, but stated it will be read against the major backdrop element of the formality of the front façade. Mr Lovell gave evidence the pop up staircase obliquely references the complexity of the building; it is interesting; and it does not overwhelm the building. However, Mr Lovell stated he would never contemplate its inclusion in a more intact building.
As I stated earlier, I am not persuaded by Mr Lovell's evidence that the only key remaining heritage characteristics of this building are its internal courtyard and its three dimensional form. Rather, I find the Victoria Street front façade is similar to what existed in the 1940s, which is a moderne façade acknowledged in the citation as "a small but notable example of the type".
Mr Lovell acknowledged the inclusion of the staircase does not accord with the Heritage local planning policy in the planning scheme. The policy states additions to individually significant places should, as far as possible, be concealed by existing heritage fabric when viewed from the front. Mr Lovell pointed out the policy is a guideline only and can be varied. Whilst that may be the case, there needs to be a rationale for departing from the policy. Mr Lovell made it clear his support for this staircase is 'very case specific' because of the condition (or, in his view, the lack thereof) of this building. As I disagree with Mr Lovell's evidence about the heritage significance of the Victoria Street elevation of this building, I am not persuaded it is appropriate to depart from the local policy and allow the pop up staircase element.

[14]

In Mr Lovell's opinion, the existing windows in the front façade are not original, as they were replaced as part of the 1940s makeover, but with an old fashioned sash arrangement. He explained that he did consider whether part of the sashes could be retained, but they are falling apart and the timber frame cannot support the multi-pane design. Mr Lovell acknowledged the proposed shugg style sash windows are an aesthetic change, but stated "sustainability-wise" it is a better design outcome. He acknowledged the front façade is a critical façade of the building but he is of the view, on balance, that this change is acceptable.
Mr Lovell pointed out the Council has already allowed changes to be made to the windows in the Infant School (Stage 1) as well as supporting the proposed changes to the windows in the east and west side elevations of the school building. In light of these changes, Mr Lovell stated it is not necessary to retain the northern windows. He agreed with the Council that some could be kept (such as the central parapet façade windows), but he expressed the view that this becomes tokenistic. Under cross-examination, Mr Lovell did agree it is better to retain the windows facing Victoria Street if one is to require any of them to kept at all.
I agree with Mr Lovell that if multi-pane windows are to be kept, it should be those facing Victoria Street. I also agree that just keeping the central parapet façade windows would be tokenistic. I find the Council has allowed a significant amount of change to what would have been the windows in the Infant School[2]. I would go so far as to say that element is lost and unrecognisable now. In my opinion, the only façade of the entire school buildings (both Stage 1 and this proposal) with a visual streetscape presence is the Victoria Street elevation. One of the key architectural elements identified in the citation is "large timber-framed double-hung multi-paned windows". As such, I am of the view the windows should be retained or, if that is not possible due to their condition, replace them with "like for like" as suggested by the Council as an alternative during the hearing.

[17]

In regard to overshadowing, the planning scheme requires consideration of the shadow cast onto secluded private open space (and not shadow cast into a house). Mr Shulman provided shadow diagrams of the impact of this proposal upon his courtyard and house on 21 March and 21 September. March is in daylight savings time and the shadow impact in the morning is greater in Mr Shulman's courtyard at that time of the year. It is an interesting point that the shadow impacts differ at the two Equinox points in the year, but standard B21 in clause 55 specifically states it is 22 September that must be considered. I agree with Mr Shulman the shadow impact will be worse at 7am and 8am, but, again, standard B21 requires consideration of the hours between 9am and 3pm.
Mr Shulman's shadow diagrams illustrate approximately one third of his courtyard is free of shadow at 9am; it is predominantly free of shadow between 10am and 12 midday; approximately one third is in shadow at 1pm, the majority is in shadow at 2pm and all of it is shadowed at 3pm.
The overshadowing objective is to ensure buildings do not significantly overshadow existing secluded private open space, hence this objective does allow for a shadowing impact to occur. Standard B21 states at least 75% of secluded private open space should receive a minimum of five hours of sunlight between 9am and 3pm. Based on Mr Shulman's shadow diagrams, it would appear this may not be achieved, but Mr Shulman's shadow diagrams do not tell the whole story. They do not include the shadow cast by the existing 7.5 metre high yellow gum tree (with an 8 metre canopy spread) located to the northeast of Mr Shulman's courtyard, which is to be removed as part of this proposal. Ms Hansen provided a diagram of the existing shadow impact of this tree, which illustrates shadow is cast onto Mr Shulman's courtyard between 9am and 11am. As such, standard B21 states where the existing sunlight is less than the 75% for five hours, "the amount of sunlight should not be further reduced". I agree with Ms Hansen submission's that this standard is met because the shadow cast by the new 'east' building is less than the shadow cast by the tree (as illustrated in the shadow diagrams in Appendix 5 of Ms Hansen's submission). As such, I am satisfied the proposed building does not significantly overshadow Mr Shulman's courtyard.

[22]

I am not satisfied the design of the proposed 'west' building has appropriately responded to Mr Brelis' house that abuts much of the west side boundary. As Mr Brelis explained - he has a 5 metre wide lot; he obtained planning approval for his house about 6 years ago; and has been living in the two and part three storey house for the last 4 years. I have inspected his house and note the following features:
- At ground level, there are bathroom and laundry windows facing east and a bedroom window facing north into a small lightcourt; and there is a small courtyard at the rear between the master bedroom and the carport;
- At first floor level, there is a kitchen window facing east and a dining/living room window facing north into the small lightcourt; and the open plan kitchen/dining/living area has a narrow roofed balcony to its south with a slot opening in its east side;
- At second floor level is a single room at the rear that is a further living area. It has north facing windows that get larger (due to the sloping roof) from east to west; highlight windows in part of the west wall and glass windows and doors in the south wall that lead out to a large terrace. The north facing windows are adjacent to an internal void space that provides a light source into the kitchen and dining area below.
Mr Brelis is concerned about the overshadowing, daylight and sunlight impacts of the proposed three storey west building upon his property. I will deal with each of these impacts in turn. However, before doing so, there is one other matter I wish to comment upon. Ms Hansen made a number of submissions about the need to achieve a "fair and equitable outcome" for both Mr Brelis and this proposal; and that the development of this site should not be penalised by the design of the Brelis' house. Put simply, Mr Brelis' house is an existing condition that the design of this site must have due regard to. In other words, it is one of the features of the site (and, in part, a constraining feature) that the proposed design must respond to, particularly due to the necessity to achieve the clause 55 objectives.

[23]

The Council shares Mr Brelis' concern regarding the overshadowing impact upon his ground level rear courtyard at 9am and 10am, so it imposed conditions 1(b)(i), (ii) and (iii) requiring reductions in the size and shape of the proposed west building in order to maintain the existing level of sunlight into the courtyard. Ms Hansen provided a shadow analysis in Appendix 11 of her submission to demonstrate these conditions do not achieve the outcome sought by the Council. She submitted they have either no or little effect. Ms Brown questioned the accuracy of this analysis given the conditions were based upon a separate earlier analysis prepared by the Applicant and provided to the Council during the processing of the application. I am not going to make any finding on this for two reasons. The first reason is both of these analyses agree the existing situation is that there are small areas of the courtyard that receive sun between 9am and 11am. The second reason is this courtyard is accessed via a bedroom and it has very limited sunlight now, and hence I am not persuaded this courtyard is a principal area of open space for this house. As such, I find the total loss of the existing small areas of sunlight will not have an unreasonable effect on the existing use of this courtyard.
As described earlier, the living areas of the house are at first and second floor levels. They each have terraces adjacent to them, which increase their importance as principal open space areas for this dwelling in my view. I acknowledge the first floor terrace is already overshadowed by the second floor terrace and therefore the proposed development will not unreasonably impact by way of overshadowing. The second floor terrace is a larger outdoor area that faces south and is already affected by shadow cast by the Brelis' house and the adjoining house to the west. The shadow diagrams indicate the proposed building casts additional shadow at 9am and 10am (and possibly a minor additional shadow at 11am). The clause 55 overshadowing decision guidelines require consideration of sunlight penetration, the time of day sunlight will be available and the effect of a reduction on the existing use. In my opinion, permitting the loss of sun in the ground level courtyard in the morning means the morning shadow impact upon the upper level terrace should be removed. This means part of the third floor of the proposed building will need to be setback or removed to achieve this.

[24]

The Council assessed the daylight into the windows around Mr Brelis' lightcourt without an appreciation as to what rooms they serve (e.g. habitable rooms) and which direction the windows face (e.g. north facing or otherwise). As such, the Council initially submitted at the hearing that the daylight standard and objective of clause 55 was met. However, the actual use and orientation of the windows was subsequently clarified during the hearing and verified by me during my inspection of Mr Brelis' house.
Ms Pound reassessed the daylight and north facing windows standards of clause 55 on behalf of the Council. She submitted the following is required in order to achieve compliance:
- At ground floor level, a setback of 5.02 metres from the common property boundary for a length of 3 metres from the window edge to meet the north facing bedroom window standard;
- At first floor level, a setback of 3.2 metres from the east facing kitchen window (based on an assumed 2.7 metre high floor to ceiling height in Mr Brelis' house) to meet the daylight standard;
- At first floor level, a setback of 2.73 metres from the common property boundary for a length of 3 metres from the edge of the dining/living room window to meet the north facing window standard; and
- At second floor level, a setback of 1.08 metres from the boundary (based on a height of 5.4 metres and acknowledging the windows are on an angle) to meet the north facing window standard. Having inspected this, I would add that it is a north facing habitable window and therefore to meet the standard the setback would be, again, for a length of 3 metres from the edge of the window.
Clearly, compliance with these standards will mean significant changes to the design of the west building. Ms Hansen submitted the light court, for example would need to change from a 1 metre width to a 5 metre width for the proposed three storey building. She questioned "where is the equity in that?"
Ms Hansen submitted it is inevitable that the clause 55 standards will not necessarily be satisfied because this is an inner suburban location; and that it is unrealistic to expect compliance. I suggested to Ms Hansen that the Tribunal has sometimes found in inner areas that such standards become more important in order to maintain a reasonable level of internal amenity and liveability to dwellings on small lots.
Mr Brelis submitted he has a frontage of 5 metres whereas this site has a frontage of 90 metres. He argued there is the ability for a design on this site to comply with the relevant standards about daylight and sunlight into windows and private open space. Ms Hansen stated a 'fair and equitable approach' should be adopted as Mr Brelis is borrowing upon the amenity of this site for these windows, therefore Mr Brelis has to share the benefits and disbenefits of his house. Ms Hansen submitted on several occasions that this proposal is being 'substantially penalised' if it has to comply with the clause 55 standards.
Ms Hansen likened Mr Brelis' house to developments that come before the Tribunal with some reliance upon borrowed light (where a habitable room does not have direct access to light and borrows it from another room). I am not persuaded it is appropriate to make such a comparison as such developments are new and, if approved, it is a choice the buyer makes - to purchase an apartment with borrowed light. Mr Brelis' house has an existing level of internal amenity, and the issue here is whether the impacts upon this amenity, in terms of daylight and sunlight access, are reasonable.
Ms Hansen also submitted that Mr Brelis's first and second floors have a full south facing light source. However, Mr Brelis, in his right of reply, pointed out these southern windows have dimensions of 2.1 by 3.6 metres, hence they do not provide full glazing.
It appears to me that the design of the proposed west building has started from the premise that there is a three storey building next door. However, that is not the situation. Much of Mr Brelis' house is two storeys and the third storey element is a single room with a large outdoor terrace area. The ground floor bedroom with the north facing window to the lightcourt has limited light access now, and I am of the opinion compliance with the standards is necessary in order to achieve adequate solar access and daylight, as sought by the objectives. The second and third floor rear sections of Mr Brelis' house are the main living areas of the dwelling and they rely upon the lightcourt and the upper level north windows above the void space for both daylight and sunlight. Again, I find compliance with the standards is necessary to achieve adequate solar access and daylight as sought by the objectives.
During the hearing, Ms Hansen described the west building as having a "C" shape to maximise north and northeast sunlight. She also described Mr Brelis' house as having a sharp and abrupt configuration on the west boundary. I find the configuration of Mr Brelis' house is understandable given its narrowness. I also find that the lightcourt and windows of Mr Brelis' house seek to maximise its north and northeast sunlight. In my view, the desire for the west building to achieve the same can still be accommodated, but with a different layout that includes some greater setbacks to respond to the sunlight and daylight access necessary for Mr Brelis' house.

[25]

The residents expressed concern about the adequacy of the parking provision. This proposal is providing 16 car spaces for 7 two bedroom and 11 three and four bedroom apartments. Ms Dunstan stated each three and four bedroom apartment will have one car space and 5 of the 7 two bedroom apartments will have a car space. This means the proposal is seeking a reduction of 17 car spaces, being 13 resident spaces and 4 visitor spaces. The Council has imposed condition 1(a) requiring the provision of another 5 car spaces. Ms Brown explained this would allow for one car space per dwelling and either three visitor spaces or a second car space for some of the larger apartments. This condition is opposed by the Applicant.
Ms Dunstan acknowledged that on paper the car parking reduction looks like a big dispensation. However, she explained as the development is targeted as an eco-village, it is appropriate that two 2 bedroom apartments will have no car parking and there will be no visitor parking.
In support of the proposed car parking reduction, Ms Dunstan relied upon the site's location in one of Council's urban villages; the proximity to public transport, car share schemes and Brunswick major activity centre; the on-street car parking surveys her firm undertook; the 'eco-village' nature of the proposal; and her empirical analysis of car ownership.
I agree the site is within an urban village and has good access to public transport, which provides some justification for considering a reduction in the on-site car parking provision. However, I also agree with the Council the 1.4 kilometre distance to Brunswick major activity centre and the 0.8 - 1.3 kilometre distance to the nearest car share schemes are not persuasive factors for reducing the car parking provision.
The residents questioned the adequacy of the surveys of on-street parking undertaken on two Wednesdays and Saturdays in Ms Dunstan's evidence. Ms Dunstan accepted Mr Brelis' proposition that there are other occasions when demand for on-street parking in Victoria Street is higher, either because of the nearby gym or the nearby Monte Lauro Social Club.
Ms Pound advised the Council agreed to a car parking reduction on the basis of the ABS Census data analysis contained in the permit application report by Ms Dunstan's firm. Ms Pound explained the Council did not support the reduction on the basis of the 'eco-village' style of development described in Ms Dunstan's expert evidence report. However, Ms Hansen submitted this proposal is different to standard residential development as demonstrated by Stage 1's sustainability awards and commendations. As such, she submitted "there are special circumstances here and the market is not two car owner households".
In my opinion, the location of the site within an urban village, with good access to public transport and reasonable access to on-street parking (not only in Victoria Street, but nearby streets) provides justification in this case to waive the requirement for 4 visitor car spaces on the site. However, despite these characteristics, I do not consider a reduction in the resident parking is automatically appropriate.
The decision guidelines in clause 52.06 relating to car parking include consideration of empirical analysis (and this clause applies if a residential development is four or more storeys). However, the decision guidelines of clause 55.03-11 Parking Provision do not include empirical analysis; but rather:
- The reduction in the demand for on-site parking in rental housing, managed by not for profit organisations, intended for residents likely to have a low level of car ownership.
- The number, type and size of dwellings.
- The availability of public transport and on-street parking.
- The practicality of providing car parking on the site, particularly for lots of less than 300 square metres.
- The reduction of on-street car parking spaces associated with the provision of car parking on the site, particularly for lots of less than 300 square metres.
- Local traffic and parking management plans and safety considerations.
- Any relevant local planning policy or parking precinct plan.
Ms Dunstan acknowledged the above decision guidelines in her expert evidence report. She highlighted the first dot point about residents likely to have a lower car ownership. However, this dot point relates to rental housing managed by not for profit organisations, which is not relevant to this proposal.
Ms Dunstan also highlighted the last dot point, but then referred in her expert report, first, to "State Policy - Melbourne 2030" and described it as a state-wide strategy aimed at planning for sustainable growth. Whilst Melbourne 2030 is a reference document to some of the State housing policies, I note that it is not a reference document to clause 18.02-5 Car Parking. The objective of this clause is to ensure an adequate supply of car parking that is appropriately designed and located. I do note one of the strategies in the location of new housing at clause 16.01-2 is to facilitate residential development that is cost-effective in infrastructure provision and use, and encourages public transport use. Nevertheless, State policies are not specifically mentioned in the clause 55.03-11 decision guidelines.
The local planning policy framework of the planning scheme is specifically mentioned in the decision guidelines, and I find it to be informative about this Council's approach to dealing with car parking provision. Clause 21.03-6 of the Municipal Strategic Statement states car ownership is relatively low in Moreland and people are encouraged to use alternatives to cars. Clause 21.03-9 identifies a growing realisation that the need to reduce greenhouse gas emissions means reducing car travel; and clause 21.04-2 has a broad aim to move a significant proportion of travel away from cars. Clearly these policies are indicative as to why this Council is supportive of a reduced parking provision on this site. In light of these policy statements and the fact that the Council has approved a reduction based on the ABS Census data analysis provided in the permit application, I find it is appropriate to consider Ms Dunstan's empirical analysis.

[26]

Ms Dunstan's empirical analysis consists of two components. The first is the ABS data of car ownership in apartments and the second is a survey of the residents of Stage 1 in 2007.
Ms Dunstan's analysis of the ABS Census data for the Brunswick West postcode reveals 80% of 2 bedroom apartments have one or no cars, 63% of 3 bedroom apartments have one or no cars, and 74% of 4 bedroom apartments have one or no cars. However, Ms Dunstan acknowledged the number (sample size) of 4 bedroom apartments in this postcode is low at 31, so she suggested greater consideration should be given to the number of 3 bedroom apartments, being 398.
The average car ownership for a 2 bedroom apartment is 1 car space per dwelling and the average for a 3 bedroom apartment is 1.2 car spaces per dwelling. Using these averages, there would be a demand for a total of 20 car spaces (and this proposal provides 16). Ms Dunstan stated in this case it is not appropriate to use the average car ownership because this proposal is an 'eco-village'. However, Ms Dunstan's survey of Stage 1 found a third of 3 bedroom dwellings owned 2 vehicles. Ms Hansen advised there are 12 dwellings in stage 1; all but one of them contain 2 beds plus study or more; and there are a total of 12 car spaces. Hence, Ms Dunstan's survey suggests Stage 1 does not accommodate its parking demand.
Ms Hansen suggested a car share scheme might be able to be provided on the site if there is enough interest amongst the residents. That is a good idea, but in my opinion it does not negate the need to provide an appropriate amount of resident car parking. Ms Hansen also suggested that car parking should not drive (or penalise) this development as it is a case of buyer choice. She submitted the market for these apartments will not be 2 car owner households. I agree it is partly buyer choice, but the survey data demonstrates Stage 1 buyers still include households with more than one car. I am persuaded by the residents' submissions and Ms Dunstan's evidence that the on-street parking in Victoria Street is heavily utilised (and, in that sense, is quite different to Hunter Street where Stage 1 is located). Hence, I find this is another factor as to why an appropriate level of resident car parking must be provided in this proposal.
The Council's condition 1(a) requires a total of 21 car spaces, and Ms Pound submitted this would provide 1 car space per apartment with 3 left over. Having regard to the ABS data, I agree one car space should be provided to each 2 bedroom apartment, but I am not persuaded one car space is sufficient for the 3-4 bedroom apartments. Based on Stage 1, about 1/3 of the apartments have more than one car. In this proposal, this would equate to 4 apartments out of 11 needing 2 car spaces. This in turn equates to a parking demand of 15 for the 3-4 bedroom apartments, and a total parking demand of 22 car spaces. In my opinion, this is the minimum car parking requirement for this proposal. Obviously, the car parking requirements may change if the design of the west building (and hence apartment sizes and numbers) change, and the resident car parking provision may need to be recalculated having regard to the number and size of the apartments.

[27]

Mr Clanchy and Mr Brelis are concerned about the appropriateness of using School Lane to access the proposed basement car park.
Both the Council and the Applicant are of the view one of the reasons this is a good arrangement is because of the heritage significance of the site. Ms Brown pointed out the Heritage local planning policy discourages the creation of new or additional vehicle crossovers at the front boundary where this is not a feature of the heritage place or where rear laneway access exists. The residents pointed out there is an existing crossover at the east end of the Victoria Street frontage, and I agree them that its use for vehicle access would not adversely affect the heritage significance of the school building. However, I am also of the view School Lane is an appropriate road for use by vehicles from this site.
School Lane is an L shaped right of way. Its north-south leg from Victoria Street is about 3.6 metres wide and the majority of its east-west leg terminating at this site is 6.4 metres wide. Mr Brelis pointed out access to his carport is tight due to the fact that the rear fence of 48 Hunter Street has been moved further north. I indicated during the hearing that any issues associated with this fence (such as its legality) are for the Council to determine as it is the Council's road. I agree with Ms Dunstan that the proposed access to the basement would provide some additional turning space for Mr Brelis.
I am persuaded by Ms Dunstan's evidence and the views of the Council that School Lane is capable of accommodating the traffic volumes that will result from this proposal. I agree with Mr Clanchy and Mr Brelis that exiting School Lane requires drivers to concentrate when looking out for both pedestrians along the footpath and vehicles travelling west along Victoria Street. However, I am persuaded by Ms Dunstan's evidence that, from a traffic engineering perspective, the safety of this intersection is both typical and acceptable. Hence, this is not a reason why I have refused this proposal.
I reiterate my earlier finding that there could be vehicle access from Victoria Street, but from a traffic engineering perspective the use of School Lane is appropriate as well. Ultimately, whether one or both access points are used in this development should depend upon the design appropriately responding to the features of the site and surrounding area.