Cadden v Stonnington CC [2009] VCAT 1215

1. Amended plans being 12 sheets marked TP-02 to TP-13 (all marked Rev C) are substituted for the application plans.
2. The decision of the Responsible Authority is set aside.
3. In permit application 0301/08 a permit is granted and directed to be issued for the land at 1274 Malvern Road, Malvern. The permit will allow:
   • Use and development of land for retail premises (shop and/or motor vehicle sales).
   • Construction of two or more dwellings on a lot.
   • Partial waiver of on-site car parking requirements.
   • Partial waiver of loading bay requirements.

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Phil Bisset, Solicitor of Minter Ellison Lawyers. Expert written and oral evidence provided by Mr John Kiriakidis, Traffic Engineer of GTA Consultants and Ms Amanda Ring, Town Planner of SJB Planning Pty Ltd.

Mr Peter English, Town Planner of Peter English & Associates Pty Ltd.

Ms Stella Barber for herself, Mr Mark Wilson, Mr Phillip Lipton and Mr Richard Clarke.

1. After inspecting the site and locality on the morning of the second day, we gave an oral decision to set aside Council's decision. We gave brief reasons and this is a summary of the reasons for our decision to grant a permit.
2. We do not detail the proposal, the site context and planning scheme provisions as these are identified in the various documents contained on the Tribunal file. However we do note that the land is within a Mixed Use Zone and that no overlays apply.

1. We agree with both Council and the permit applicant that there is strong strategic support for more intensive development on this site. Nor is there any doubt that a mixed use development comprising three shops (or car showrooms) with dwellings above is consistent with the Mixed Use Zone and relevant planning policies. The strip of land along the southern side of Malvern Road was rezoned from Residential 1 to Mixed Use in April 2004. The panel commented that :

Taking on board the number of non-conforming uses in that section of Malvern Road and the unlikely scenario that those uses will convert to traditional residential density uses, the Panel finds that a rezoning is warranted. The Panel's view is that the intended zone should allow existing commercial uses to redevelop and residential properties to redevelop at a higher density in keeping with their main road location.

1. No heritage, design or built form overlays apply to the site. Local policy recognises Stonnington's one and two storey built form character but supports more intensive development (higher than two storeys) on land shown on the Strategic Framework Plan that has a frontage to a Road Zone Category 1, principal activity centres and identified gateway localities and large sites. The review site has a frontage to a Road Zone Category 1. Clause 21.04-2 includes Mixed Use areas as Group 5 activity centres although the area around the intersection of Tooronga and Malvern Roads is marked on the Strategic Framework Plan as a Group 4 centre (Small Neighbourhood Activity Centre). With few exceptions, both sides of Malvern Road within the Mixed Use and Business 2 Zones are developed for non residential uses and this section of Malvern Road appears as a linear commercial precinct. The site also has excellent public transport access with a tram along Malvern Road outside the site and the Tooronga train station a relatively short walk to the north.
2. Although we accept that the Mixed Use Zone is within the suite of residential zones, it clearly has a different function from Residential 1, 2 and 3 Zones and is applied in locations where there is already a mix of residential and non residential uses, a clear expectation that there will continue to be mix of land uses and where built form outcomes will be quite different from that which is expected in the residential hinterlands included in one of the other residential zones. That does not mean that off site amenity impacts or character issues can be ignored. Rather, they have to be tempered in the light of policy encouraging more intensive development. For example, policy at Clause 22.05 which applies to residential development in the commercial mixed use zones requires the applicant to demonstrate that the proposal is consistent with maintaining the character and amenity of adjoining dwellings, particularly having regard to overlooking, overshadowing, noise, odours, traffic and car parking.
3. Although Council and nearby residents were concerned about visual bulk, overlooking, overshadowing, traffic and parking we are satisfied that the proposal as shown on the substituted plans does not exhibit any unreasonable off site impacts. Although the provisions of ResCode (Clause 55) do not apply because the building exceeds 3 storeys, use of the relevant standards demonstrates that the building more than satisfies standards concerning rear setback, overlooking, and overshadowing. Indeed we agree with Ms Ring that balconies for four of the apartments facing south (7, 8, 18 and 19) do not need to have screening to satisfy the overlooking standard and we have included a condition deleting screens for these balconies.
4. We raised the configuration of the proposed canopies over the footpath at the hearing. We noted on our inspection that pedestrian protection from the weather by generous canopies is a characteristic of this local shopping strip. We have thus included a condition to increase the depth, though not the extent, of the proposed ground floor canopies.
5. Although residents were concerned about the height of the building, we find a building of four storeys quite unremarkable on a main traffic artery. Two and three storey dwellings of up to 9 metres in height are becoming increasingly common in the residential areas of Malvern and new dwellings in Bonview Road are generally much taller and larger than the ones they replace. The strip along Malvern Road already contains taller buildings, the equivalent of two and three storeys, and a number of three storey developments have been recently approved even in the Residential 1 Zone to the north west. If our residential hinterlands, which Council and residents value so highly, are to be protected from intolerable pressures for much more intensive development then it is inevitable that sites along major roads that already contain taller built form will be developed for buildings such as the one in this proposal. Given the unmet demand for new housing across Melbourne, we suspect that in years to come much taller buildings will be proposed, and indeed built, on sites along arterial roads already earmarked by Council for more intensive development.
6. We anticipate that No 1288 Malvern Road, currently used as a dwelling, will at some time in the future be redeveloped to better reflect its zoning, location on a category 1 road and Council's planning policies encouraging more intensive development in such locations. We accept Mr Bisset's submission that any development on the review site should not prejudice the capacity of No 1288 to contribute to a higher intensity of use.
7. Ms Barber is concerned about the loss of outlook to the north and north east across the Tooronga Valley. We note that the Planning Scheme does not include any requirements to protect existing views and that any development over two storeys would block her views. We consider that the proposal is acceptable without any further changes.
8. Internal amenity and the location of bedrooms facing the central breezeway was of concern to Council but we are satisfied that these dwellings have an acceptable level of internal amenity. The use of the central breezeway with a clear roof provides light into the centre of the building and overcomes the problem often experienced in such buildings of long dimly lit corridors. Venting at the top also adds in the natural movement of air to ventilate the building and we consider that the corridors will be pleasant and appealing spaces for residents.
9. Despite submissions to the contrary, insufficient on-site car parking and unacceptable traffic impacts are not reasons to refuse this development. Although there is some variation in the number of car parks calculated by Mr English and Mr Kiriakidis, adoption of the parking rates in Clause 52.06 would result in either 105 spaces or 111 spaces being required (54 for the dwellings and either 51 or 57 for the shops). It is now widely accepted that the residential parking rates in Clause 52.06 are too high and that instead the ResCode rates of one space per one/two bedroom dwelling should be used. Indeed it would be somewhat perverse if a higher parking rate was applied to dwellings in activity centres with excellent accessibility to public transport and other services compared to dwellings less well served outside activity centres. A total of 38 car spaces are provided (35 in the basement carpark and 3 at ground level off the rear laneway). We agree that 27 should be allocated to the dwellings (one per dwelling) and that the remaining 11 should be allocated on the basis of three to Tenancy 1, three to Tenancy 2 and two to Tenancy 3. The remaining three spaces can be allocated according to need.
10. We acknowledge there is shortfall in the number of spaces provided for the retail uses on the basis of the rates included in Clause 52.06 but we are satisfied that sufficient on street parking exists to cater for likely demands and that individual sites within strip shopping centres or activity centres can rarely provide sufficient parking without seriously impacting on the ability to redevelop such sites. The Tribunal has commented many times on this issue and, in several recent decisions, has acknowledged the superior benefits of a centre-wide approach to parking in such locations. We also accept that the reliance on small, separated clusters of shopper parking spaces on a site-by-site basis results in an inefficient utilisation of parking, as compared to the utilisation of the more centralised parking layouts that can be provided in a whole-of-centre parking strategy. Parking within Bonview Road is already regulated by a resident parking scheme and we are satisfied that this protects the street from unreasonable parking demands generated from development in Malvern Road. These findings were supported by Mr Kiriakidis' surveys and our observations during our site inspection. We would make the perhaps obvious point that if there are problems with the current scheme then it can be further refined by Council and, if necessary, provide greater enforcement to ensure compliance with the restrictions that apply. We are not convinced that the loading/unloading of vehicles to the third retail space facing Bonview Road will result in unacceptable impacts to residents further south and we agree with Mr Kiriakidis that larger vehicles (whether car transporters or other large delivery vehicles) will park in the truck zone in Malvern Road rather than try and negotiate Bonview Road. On our inspection we observed a tray truck turn into Bonview Road, reverse and use the truck zone in Malvern Road.

1. Having regard to the above we will direct that a permit issue subject to the conditions set out in the Appendix. The conditions reflect the discussions conducted at the end of the hearing.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the amended plans circulated for the VCAT hearing of 29 June 2009 but modified to show:
   • (a) A schedule of materials, external finishes and colours.
   • (b) Ground level 'retail' uses re-annotated to specify precise nature of use (shop and/or motor vehicle sales).
   • (c) The dimensions and layout of parking bays, access gradients, sightlines, location of columns such that they are generally in accordance with the Planning Scheme or otherwise to the satisfaction of the Responsible Authority.
   • (d) Waste Management Plan as required by Condition 3.
   • (e) Landscape Plan as required by Condition 5.
   • (f) Tree Management Plan as required by Condition 7.
   • (g) Environmental Audit as required by Condition 16.
   • (h) Location of mechanical plant and equipment including, but not limited to, lift overruns, flues, exhausts and air-conditioning units.
   • (i) Double glazing for all windows facing the internal breezeway.
   • (j) Deletion of the privacy screens to the balconies of Dwellings 7, 8, 18 and 19.
   • (k) The ground floor street canopy increased to 2 metres in depth.
   • (l) Convex mirror fitted to the bottom of the vehicle ramp.
   • (m) Annotations indicating how the car-parking spaces will be allocated amongst the various uses.
2. The development allowed by this permit and shown on the plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) Dimensions of waste areas.
   • (b) The number of bins to be provided.
   • (c) Method of waste and recyclables collection.
   • (d) Hours of waste and recyclables collection.
   • (e) Method of presentation of bins for waste collection.
   • (f) Strategies for how the generation of waste and recyclables from the development will be minimised.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. The drainage of the site must be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit must be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.
2. Concurrent with the endorsement of plans, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer, must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must show:
   • (a) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
   • (b) Details of surface finishes of pathways and driveways.
   • (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   • (d) Landscaping and planting within all open areas of the site. Planting within the splay to the ramp and at the corner of the right of way for a distance of 2 metres from the property boundary should not exceed one metre in height when fully grown.
   • (e) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.
   • (f) Details of all proposed hard surface materials including pathways, patio or decked areas.
3. Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
4. Concurrent with the endorsement of development plans a tree management plan prepared by a suitably qualified Arborist must be submitted to and approved by the Responsible Authority. When approved, the tree management plan will form part of this permit and all works must be done in accordance with the tree management plan. The tree management plan must detail measures to protect and ensure the viability of the Platanus x acerifolia (Bonview Road, London Plane, Street Tree).
5. Without limiting the generality of the tree management plan it must have at least three sections as follows:
   • (a) Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone.
   • (b) During-construction - details to include watering regime during construction and method of protection of exposed roots.
   • (c) Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.
   • (d) Pre-construction works and any root cutting must be inspected and approved by the Parks Unit. Removal of protection works and cessation of the tree management plan must be authorised by the Parks Unit.
6. All plant and equipment (including air-conditioning units) must be located or screened so as to not to be visible from any of the surrounding footpaths and must be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
7. Prior to the development commencing a request for a legal point of stormwater discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design and certification for the design from the Engineer must be provided to Council at the completion of the works.
8. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
9. The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority.
10. The level of the footpath must not be lowered or altered in any way to facilitate access to the site.
11. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
12. The use and development must be managed so that the amenity of the area is not detrimentally affected through the transport of materials, goods or commodities to or from the land appearance of any building, works or materials.
13. Concurrent with the endorsement of plans, either:
    • (a) A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
    • (b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.
14. All the conditions of the Statement of Environmental Audit must be complied with to the satisfaction of the Responsible Authority, prior to commencement of use of the site. Written confirmation of compliance must be provided by a suitably qualified environmental professional or other suitable person acceptable to the Responsible Authority. In addition, sign off must be in accordance with any requirements in the Statement conditions regarding verification of works.
15. All walls on or facing an exposed boundary of the site must be cleaned and finished to the satisfaction of the Responsible Authority.
16. The shop and/or motor vehicle sales uses hereby approved must only operate from 7am to 10pm.
17. Prior to the commencement of any buildings and works allowed by this permit a Parking Management Plan is to be submitted to the satisfaction of Council and must:
    • (a) Allocation of spaces as follows:
      • (i) 27 to the dwellings (one per dwelling).
      • (ii) 3 to retail tenancy 1.
      • (iii) 3 to retail tenancy 2.
      • (iv) 2 to retail tenancy 3.
      • (v) the remaining 3 spaces allocated according to need.
    • (b) Detail the signing and line marking of parking spaces.
    • (c) Detail how the proposed parking spaces will be secured for their intended users. The car spaces approved must be made available for staff of the proposed commercial uses and residents of the dwellings at all times and not be used for any other purpose.
    • (d) The provision of bicycle parking spaces is in accordance with Clause '52.34 Bicycle Facilities' of the Planning Scheme.
    • (e) Detail the provision of an electronic system or a convex mirror that must be installed, and maintained in good working order at all times, to warn drivers about to access the circulation roadway and as to whether there is a car currently on the roadway to the satisfaction of the Responsible Authority.
18. The loading and unloading of vehicles and the delivery of goods to and from the premises in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.
19. Noise emanating from the subject land must not exceed the permissible noise levels when determined in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority. Any works required to ensure and maintain the noise in compliance with this policy must be completed prior to the commencement of the use or occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
20. Prior to occupation, access for persons with disabilities must be provided in compliance with all relevant Australian Standards and the Disability Discrimination Act 1992 and such access must be maintained at all times the building is occupied or in use.
21. This permit will expire if one of the following circumstances applies:
    • (a) The development is not started within two years of the date of this permit.
    • (b) The development is not completed within four years of the date of this permit.
    • (c) The use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.