i

Supplementary and alternative soft surface access from the rear ROW for each unit;

ii

increased opportunity for street-front canopy landscaping to "To Sefton Place". This can be achieved by narrowing the driveway to the eastern unit at its mouth. Amending plans should clearly show the extent of hard paving.

5 The above amending plans must be filed with VCAT and served upon all other parties no later than four weeks after the notification date (the 'circulation date').

6 All parties have an opportunity to comment to VCAT in writing on the amending plans, with a copy to each other, within fourteen days of the circulation date. The Tribunal will then make a decision on the papers.

7 Liberty to apply.

Mr Crawford called Mr D Bick, heritage adviser, as an expert witness.

Mr Robert Symons, solicitor, on behalf of Ms J Symons.

1 This was a review of council's decision to refuse subdivision permission over land at 54A Broadway, Camberwell. Dwellings in the subject north-south part of Broadway are very largely attic or single storey, and many are quite substantial. The combination of the lot sizes, sizeable front setbacks, side setbacks, the private planting and the mature street trees, results in the dwellings and street having a garden setting. The dwellings are usually partly concealed in the street by planting.

2 The site is an irregular shape, and has a total area of 1029 square metres with a frontage to "To Sefton Place"[1] of 48.62 metres. The site currently supports a cream brick dwelling and a variety of vegetation. A three metre wide laneway runs along the northern boundary of the site.

3 The land is located on the northern side of Sefton Place, and has a very narrow frontage to the road reserve associated with Broadway to the west. The site currently fences in a section of road reserve to the west of the title boundaries. The site's only frontage to road reserves consist of the laneway to the north, the fenced in section of Broadway to the west, and the last car park in Sefton Place to the east. The section of Section Place to the south of the subject site appears not to be road reserve but rather land attributed to the railway. More of this later.

4 The surrounding land is developed in the following way. To the south of the site is the junction of the Lilydale/Belgrave line and the Alamein line, and the Camberwell East Railway Station.

5 Partly adjoining the eastern boundary of the site is 10-12 Sefton Place, which is a double storey brick dwelling constructed in 1908 that is an `A' graded building (the O'Connors) and which has its own individual listing under Schedule 217 of the Heritage Overlay. Adjacent to the remainder of the eastern boundary of the site is an area of public open space that, along with the subject site, was once part of the railway line that connected the Belgrave/Lilydale line with the outer circle railway line that ran in a north-south direction through this area.

6 To the north of the site is a double storey (attic style) Edwardian dwelling (the Symons), that is setback 7.5 metres from Broadway. This dwelling and the one at 10-12 Sefton Place are both surrounded by mature and generously sized gardens.

7 To the west of the site is Broadway, which supports a number of substantial and largely intact Edwardian era dwellings on large lots, which are generally in excess of 1200 square metres in size.

8 The applicant proposes the subdivision of the land into two lots. Just as the present undivided lot is irregularly shaped, lot one will be an irregularly shaped allotment of 528 square metres with a frontage to "To Sefton Place" of 30.45 metres, and a depth of between 12.19 and 23.26 metres. Lot two will also be irregular in shape, with a total area of 501 square metres and a frontage to Sefton Place of 33.7 metres.

9 Both lots are provided with attached three-dimensional building envelopes drawn by Environ Design and Consultancy, but the applicant does not wish to be bound by them. They are put forward for illustrative purposes only.

10 The land is zoned Residential 1 and lies within Heritage Overlay No. 159, although the building on site at present, a 1960's cream brick single storey dwelling holds no heritage value and enjoys a demolition permit.

11 Clause 21.05 of the Municipal Strategic Statement sets out Council's policies in relation to Urban Character. Under Clause 21.05-1 it states:

Boroondara 's visual landscape is characterised by an abundance of trees and other vegetation found within reserves, streets and private gardens. The value that such vegetation contributes to the character of the City is keenly recognised by our residents. This is even captured in the name of the City, Boroondara, which is Aboriginal for 'A place in the shade'. Council's 'Residential Urban Character Study' also identifies vegetation as a key contributor to the overall character of our residential suburbs.

12 The site is located in Character Area 104 under council's Residential Urban Character Study.

13 The total sum of these policies at clauses 21.05, 21.07, 22.05 and 22.07 of the Boroondara Planning Scheme is that:

•

The residential areas are recognised as having a distinctive character which deserves special attention and protection;

•

Generally trees and established landscaping, both within the road reserves and the residential allotments, play a significant part in the creation of this distinctive neighbourhood character;

•

The other consistent neighbourhood characteristic worthy of protection is the quality and distinctiveness of the built form;

•

New development is required to enhance the character of the residential area in which it is to be located;

•

Poorly designed development has the ability to significantly and detrimentally alter the character of an area, as well as the amenity of surrounding properties;

•

Even new subdivision is expected to be of a form that would ensure that any new development is respectful of certain aspects of the surrounding neighbourhood character,

•

The City of Boroondara Residential Urban Character Study (1996), including the Character Area statements, is the principal document for guiding the identification of the common characteristics of a neighbourhood, and the correct way of responding to such characteristics.

14 The land is included in Schedule 159 to the Heritage Overlay, which relates to a heritage precinct known as the Prospect Hill Road Precinct. Under the provisions of the Heritage Overlay, a planning permit is required to subdivide the land. Clause 43.01-5 contains a number of decision guidelines, including:

•

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

•

Any applicable heritage study and any applicable conservation policy.

• Whether the proposed subdivision or consolidation will adversely affect the significance of the heritage place.

•

Whether the proposed subdivision or consolidation may result in development which will adversely affect the significance, character or appearance of the heritage place.

15 Further, the precinct clearly has individual heritage significance. The Camberwell Urban Conservation Study 1991 lists the site as falling within Precinct 26.4 Russell Estate - Broadway and Sefton Place. This particular precinct is confined to the lots with frontage to Broadway (east of Stanhope grove) and Sefton Place. The Study provides a brief history and description of the precinct and a statement of significance The statement of significance is as follows:

Camberwell has the reputation of possessing the best Queen Anne villa and Federation style houses in Australia: this precinct demonstrates this point ably with continuous streetscape from the Edwardian period and picturesque street patterns which show these three-dimensionally conceived designs to their best advantage i.e. Sefton Place. The contrived curves in the streets set the stage for this type of picturesque villa display and reflect the preoccupations of the innovative estate designers of the early 1900s (see also precinct 27.02). The period's best house designers, Ussher & Kemp, Cowper, Guthridge and Ward & Carleton are well represented in this precinct on sites which are almost ideal for their architecture. The houses are close to original and planting around them compliments (sic) that of the period.

16 The principal issues for consideration are neighbourhood character and road access.

17 A concept plan for two dwellings appearing as one, in sympathetic form to the neighbourhood, was provided to the Responsible Authority and the Tribunal on the advice of Mr David Bick, the applicant's heritage consultant.

18 Mr Bick provided evidence that the conceptual design has the following characteristics which directly reflects the qualities of the precinct:

iii

Building set well back from Broadway.

iv

Building looks like a reasonably substantial single dwelling on one lot, not two dwellings - the significant dwellings in Broadway are the more substantial ones, not the standard sized houses. This is not a Heritage Overlay precinct where the dwellings are modest.

v

Attic style basic design - the most significant dwellings in the north-south part of Broadway are 1900s attic style ones, such as number 58, the house opposite number 60, 62 and so on.

vi

Period based design, so that the new building would look fully compatible with its surroundings, and using the materials of the significant houses in the street, such as red face brick and red tile roofs, without being a period replica building.

vii

Side set backs, which should allow a garden setting for the new building.

19 The applicant made it clear it did not wish to be bound by that concept. It was put forward only for the purpose of illustrating that something sympathetic could be developed on the land after subdivision was permitted.

20 This hearing was adjourned on 20 December 2005 when the Responsible Authority discovered that the southern boundary access to the proposed subdivision abuts a 'Lot 2' and not, as originally understood, a thoroughfare or road.

21 It appears that this Lot 2 is railway land owned by the Public Transport Corporation ('PTC'). Council's zoning map shows this southern abuttal as public land PUZ4 (Transport), and it is signed "To Sefton Place" by road signs.

22 The adjournment elicited the following explanations. Victrack responded that:

The land at 45A Broadway has legal access by way of an easement, shown as E-2 on Plan Subdivision P5420202V. This easement provides access to the western end of the site. (Tribunal emphasis).

The subject land has enjoyed access for many years over VicTrack land to its driveway located at the eastern end of the property. This land is leased to the City of Boroondara for roadway purposes. This lease has been in place since 1930, however it can be terminated by VicTrack with six months notice should the land be required for rail purposes.

VicTrack does not recognise your clients continued right of access across its land.

In order to gain legal access to the eastern end of the property there are two options:

1. Your client would need to negotiate with VicTrack for the creation of a carriageway easement across VicTrack land

2. The City of Boroondara could apply to purchase the land, known as VicTrack lot 3 at East Camberwell, and then declare it a road.

Both of these options are dependant on VicTrack reviewing the land and determining that it would be required in the future for rail purposes.

THIS INDENTURE made the Twenty Sixth day of February one thousand nine hundred and thirty-one B e t w e e n THE VICTORIAN RAILWAYS COMMISSIONERS .. and THE MAYOR COUNCILLORS AND CITIZENS OF THE CITY OF CAMBERWELL .. WITNESSETH as follows:-

TO HOLD unto the Municipality from the Thirtieth day of November One thousand nine hundred and twenty-eight for the term of Five years and after the expiration of the said term until the tenancy hereby created is determined upon the expiration of six clear months' previous notice in writing which the Commissioners in the event of the demised land being required for any railway purpose shall be entitled at any time to give unto the Municipality the Municipality PAYING THEREFOR unto the Commissioners the yearly rent of one peppercorn if payment of the same be demanded.

Not without the written consent of the Commissioners under their Common Seal being first obtained to use the demised land or any part thereof or permit or suffer the said land or any part thereof to be used otherwise than as a public roadway.

Nothing in these presents contained shall be construed as a dedication of the demised land by the Commissioners to the public as a public highway.

... I can advise that the section of 'road' connecting Broadway and Sefton Place is recorded as a road on Council's road register, and appears to have been constructed by Council. However, it appears that the inclusion of this 'road' on the road register was done without the knowledge that the 'road' is on title owned by Victorian Rail Track, a copy of which is attached.

I am unsure at this stage whether Council will now review whether this `road' should continue to be recorded as a road on the road register.

25 Pursuant to cl. 32.01-3, single dwellings on lots greater than 500m2 in area do not need planning permission in the future, only building permits. It is patent that the applicant has subdivided into lot sizes of 501m2 and 528m2 with this freedom in mind.

26 True, the private building surveyor under the Building Regulations, applies Rescode cl. 54 to the building application before him, but s/he is only required to apply the numerical standards, not the more qualitative neighbourhood character objectives.

27 I adopt the remarks of Monk SM in Lamba v Boroondara CC[2]:

Without a building envelope, only the siting and design standards called up by the Building Act would apply. These refer, but do not fully refer, to VicCode 1 (ResCode). They can also be said to assume a fairly typical subdivisional layout...

In view of the requirement at Clause 65(2) of the Scheme, to have regard to the existing use and possible future development of the land and nearby land, I find it entirely appropriate to take cognisance of the fairly limited nature of the Building Act provisions. I think it relevant therefore to ask whether, given the particular circumstances of this site, it is sufficient to rely on these limited standards. I find that it is not sufficient, given the matters to be considered under the decision guidelines at Clause 65, including the existing use of nearby land, the effect on the amenity of the area and the local policy objective at Clause 22.07 - for subdivision design solutions which enhance and respond positively and creatively to the existing neighbourhood character of Boroondara's residential areas.

28 Senior Member Horsfall also came to the same conclusion in PNO Nominees PL v Boroondara CC[3]:

.. the building envelope plan was submitted with his client's consent although his client now objects to the imposition of any building envelope at all.

My decision in the circumstances of this case is that the requirements of the planning scheme do justify a building envelope where issues of neighbourhood character and site context require the same even though the lot is in excess of 450m2. In this case I considered that the building envelope submitted by the Applicant is satisfactory ...

29 It is too risky within this particular Precinct 26.4 Russell Estate to allow blanket subdivision without the constraints of a building envelope. This site is part of a continuum of the precinct. It connects Broadway to Sefton Place. No planning permission is required in the Residential Zone so a developer could legitimately build two large separate single dwellings without surrounding vegetation, in a style that might destroy the valuable neighbourhood and heritage character of this precinct.

30 Although planning permission is still required for development in a Heritage Overlay, two individual lots unencumbered by three-dimensional building envelopes will likely be developed as two separate dwellings instead of the current concept of 'one' apparent dwelling with a party wall. That could potentially deprive the site of its front and rear setbacks for landscaping, which is so much a feature of this precinct.

31 These front setbacks are even more critical as there is no footpath at all on the northern side, just road pavement, so all landscaping needs to be provided in the "To Sefton Place" frontage setback.

32 As it is, the remnant land for canopy trees and vegetation in the front setback to "To Sefton Place" is minimal in comparison with its precinct neighbours, but is a fair trade off for permitting increased densities opposite railway stations, in accordance with Melbourne 2030 and the site's residential zoning.

33 Other factors favouring the proposed subdivision, notwithstanding that its resulting allotment sizes are out of character with the surrounding 1000m2 lots, is its location opposite the railway track with its chain wire mesh fence, abutting perpendicular car spaces, with no other street-front neighbour. Its side abuttal to a park will buffer its impacts as well as its west abuttal to a 19.73 metre deep 'forest', being the unmade VicTrack road.

34 The Bick suggested concept plan is a reasonable response. The O'Connor residence is so far setback, no impact will occur. Most of the east boundary abuts a park, and just as other dwellings can be seen from within the park, there is no problem with this building being seen.

35 A ROW and substantial setbacks and vegetation in the Symons residence separate the northern boundary from the Symons.

36 To provide more room in the frontage setback for canopy planting, the driveway to the eastern unit should be narrowed at its mouth, and amending plans should clearly show the extent of hard paving.

37 To deal with the following road access concern, the plans need amending.

38 It is too risky to burden the applicant with a possible threat that:

viii

VicTrack will not give it a lease across "To Sefton Place";

ix

Access off "To Sefton Place" could be denied it in the future.

39 It is also poor planning to permit subdivision without lawful vehicular access. True, it has western access to an unmade road reserve, but this is impractical and does not help the eastern unit.

40 Therefore I propose giving the applicant the opportunity to redesign its Environ Plans so that they obtain supplementary narrow driveway soft surface (not hard-sealed) access off the ROW at the rear to each unit. Preferred and primary access is off 'To Sefton Place', but the three dimensional building envelopes must show lawful access can be had to each unit off the ROW as well.

41 Given the distance of this access from the habitable room windows of the northern objector Mrs Symons, I think such access would not disadvantage her. She too has access off this ROW and, as stated at the hearing, her eastern neighbour already uses it all the time, as they have no direct access to Broadway or Sefton Place other than from the ROW. There is no reason to deprive this applicant of its lawful access to the ROW.

42 In order to strike the balance in favour of net community benefit, given the surrounding benefits and risks inherent in the proposed subdivision, I give the applicant the opportunity to amend its hard surface and building envelopes. It must provide supplementary soft surface access from the rear ROW and increased opportunity for street front canopy landscaping to "To Sefton Place". I issue directions to this effect.

43 If it finds this course unacceptable, I will disallow the application for review and direct that no permit issue, because it would pose a threat to the valued neighbourhood and heritage qualities of this intact and well preserved precinct.

44 As there was no objection to the Responsible Authority's request for reconstitution of the Tribunal for the limited purpose of considering the developer's $570.00 costs application occasioned by the December adjournment, the directions will also deal with that issue. The Responsible Authority seeks a decision on the papers, not a hearing, relying instead on its written response.

[1] This nomenclature will be explained later.

[2] [2002] VCAT 49 @ paras 29 & 30

[3] [2003] VCAT 570 @ paras 54 & 55.