Calodoukas v Moreland CC [2012] VCAT 180

1. Jennifer Lee is joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. A set of drawings marked Amendment C (PL1C, PL2C, PL3C, PL4C, PL5C, PL6C, PL7C, PL17C, PL18C, PL19C, PL21C, PL22C, and PL23C) and Amendment D (PL8D, PL9D, PL10D, PL11D, PL12D, PL13D, PL14D, PL15D, PL16D and PL20D) are substituted for the similar numbered application plans (Amendment A).
3. The decision of the Responsible Authority is affirmed.
4. In permit application MPS/2009/160 no permit is granted.

Mr How Ng, Town Planner of Melbourne Planning Pty Ltd. Mr Jim Holdsworth, Architect and Urban Designer of Planning Collaborative (Vic) Pty Ltd provided written and oral evidence.

No appearance but by letter gave conditional support for the development.

For Jennifer Lee, Joanne Zafirakos, Angela Tang and Philip Hawker

Ms Jennifer Lee for herself and Joanne Zafirakos and Angela Tang. Mr Philip Hawker.

Construction of a 6 storey building containing 3 shops, 26 dwellings and 32 car spaces.

Section 77 Planning & Environment Act 1987.

Cl. 52.06-1 (reduction in the provision of on-site car parking).

Cl. 52.29 (alter access to a road in Road Zone Category 1).

The site comprises three lots and is located on the eastern side of Melville Road. It has a total area of 821m2 and contains a single storey service station and motor repair business. Land to the north is within the Business 1 Zone and developed for a mix of commercial and residential purposes. The site immediately to the north contains a four storey mixed use building. Land to the south and east is in the Residential 1 Zone and mainly comprises single storey detached and two storey attached dwellings. Melville Road is major traffic arterial road and contains double tram lines.

1. By the conclusion of the hearing I was reasonably certain that I would refuse the application, but firstly wanted to undertake a site inspection before finalising my decision.
2. While I accept that the building might be above average in an architectural sense, I have concluded that the proposal is a poor response to planning policy and its site context, and that approval of the 6 storey proposal shown on the substituted plans would result in an unacceptable built form outcome. Council in its submission suggested that a building of 5 storeys may be acceptable while residents favoured a building of either 3 or 4 storeys.

Do the site context, neighbourhood character and planning policy support an apartment style development on this site?

1. I accept that construction of a more intensive mixed use development on the site is supported by policies seeking to consolidate development in well serviced urban areas close to public transport, schools, parks, shops, sources of employment and a range of other urban facilities.
2. The site is in a Business 1 Zone, has abuttal with sites to the north also in the Business 1 Zone, has frontage to a major traffic route along Melville Road which is a Road Zone Category 1, has a tram route outside the frontage, forms part of a small neighbourhood activity centre and abuts a four storey mixed use development to the north.
3. Clause 16.01-3 sets out a list of characteristics or criteria aimed at identifying strategic redevelopment sites. Of these six criteria, the review site achieves two of these by providing 10 or more dwellings close to activity centres and well served by public transport, and it is in or beside Neighbourhood Activity Centres that are served by public transport. The other four criteria are either not met or met to a lesser degree. The site is not:
   • In and around Central Activities Districts.
   • In or within easy walking distance of Principal or Major Activity Centres.
   • On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
   • In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
4. There is no suggestion in planning policy that sites lacking these characteristics (or only achieving a limited number) should be excluded from more intensive residential development, but there is nevertheless a clear focus within policy that more intensive residential development takes place in and near activity centres and on and near public transport routes and nodes. In Clause 15 (Built Environment and Heritage) there is reference to ensuring all new development appropriately responds to its landscape, valued built form and cultural context, and in Clause 15.01 (Urban design) there is policy dealing with (amongst other matters) urban design, urban design principles, cultural identity and neighbourhood character.
5. Local policy continues these themes. However Moreland has undertaken a considerable amount of strategic planning which is reflected in its vision set out in Clause 21.04. The vision identifies focus areas for change by identifying a hierarchy of activity centres/urban villages with one Principal Activity Centre (Coburg), two major activity centres around Glenroy and Brunswick, and 18 urban villages. Along Melville Road there are two urban villages close to the review site - one at the corner of Moreland Road and the other at the corner of Wilson Street. Importantly the area around Albion Street and the old commercial centre containing the review site is not identified as an urban village. Three transport corridors are also identified including one along Melville Road which encompasses the review site. Clause 21.05 contains key strategic statements and those relating to housing are at 21.05-1. Included are strategies to support increased housing intensity within designated activity centres, urban villages and transport corridors in accordance with Moreland neighbourhood character guidelines and policies.
6. The neighbourhood character policy is set out in Clause 22.10. The review site is within the commercial character area of Character Area 55. A precinct data sheet sets out information about existing and preferred future character. It includes objectives and design standards concerning scale, building height, setbacks, site coverage and significant trees and landscaping. In terms of building height it suggests that buildings will be restricted to a maximum of 2 storeys over the prevailing height of surrounding buildings and that on larger sites a building height greater than 2 storeys above the prevailing height may be acceptable. During the hearing there was considerable debate about the prevailing height of surrounding buildings.
7. Within the commercial precinct I consider that the prevailing height historically has been largely one storey but that with the recent construction of several 3 storey and one 4 storey buildings the prevailing height is around 2 storeys. During cross examination Mr Holdsworth suggested the prevailing height would be less than 2 storeys and I accept that it is somewhere in that order, and certainly less than the 3 or 4 storeys of recent development. In my opinion a building of no more than 4 storeys would be broadly consistent with what Council is trying to achieve with the reference in the Planning Scheme to height above prevailing character. Although Mr Hawker favoured a 3 storey development, I consider that cannot be justified when the whole suite of relevant controls and policies are weighed up, including Council's stated policy of supporting increased housing intensity within transport corridors, the Business 1 zoning of the land and the support given by State policy for increased development in locations such as those on the Principal Public Transport Network.
8. Having regard to all these policy influences, I am satisfied that there is encouragement for a residential development on the review site which is different to the more traditional, one dwelling on-a-lot, that represents the original housing stock throughout this part of Brunswick West and which is evident to the south and east. Because of the location on a main road, its proximity to a tram route, its Business 1 zoning, location in a neighbourhood activity centre, abuttal to a four storey building to the north, and limited direct residential interfaces, I consider that there is justification for a different, more intensive built form and that there is nothing inherently wrong or unacceptable about a taller, apartment style building with three ground level shops abutting Melville Road.
9. However all development must respond to its site context. The key issue then is the specific design response and whether it is an acceptable response to the site context. Overdevelopment is a commonly used expression to dismiss development proposals which seek to remove existing buildings and to introduce significant new built form into particular neighbourhoods. An assessment against overlay controls (where they exist), local policies and the provisions of Clause 55 (ResCode) or the Guidelines for Higher Density Residential Development can often demonstrate that a proposal is not an overdevelopment despite being more intensive than what has existed before. Such an assessment can be more complicated where an activity on a site is completely changing from an established land use such as a low scale service station and motor repair shop to a much more intensive mixed use/residential activity.

Does the design response result in an acceptable built form outcome?

1. Mr Holdsworth supported the proposal depicted on the amended plans. I agree with him that this building is of a high architectural quality and I consider that it has far fewer of the design flaws evident in other apartment style developments that have come before the Tribunal for review. The design of this building with the curved roof to the south and the stepped setbacks from the east have, for the most part, complied with the ResCode B17 setback envelope, despite there being no requirement to satisfy that setback envelope because the building is more than 3 storeys in height. The central atrium provides very good access to light and ventilation for all dwellings and outdoor decks and balconies are of a good size and orientated to the east and west with none facing south. Lift access is available to all levels and the dwellings have a separate pedestrian entrance.
2. However, despite these positive attributes, its major shortcoming arises from the decision to design a building of 6 storeys when the adjoining building to the north is of 4 storeys. I have already made comment in the preceding section about the prevailing heights and it will be evident that I do not accept that a building of 6 storeys can be justified simply by applying one section of local policy set out in Clause 22.10. If that were the case then the progressive approval of taller buildings could result in ever higher buildings being proposed as the prevailing heights increased. Although I agree with Mr Holdsworth that at some point off site amenity impacts such as overshadowing may put an upper limit on the number of storeys possible, theoretically it would be possible to progressively increase the height of buildings in this centre to 7, 8 or more storeys based on the simplistic concept of applying a maximum of 2 storeys above the prevailing heights of surrounding buildings. While the policy refers to surrounding buildings, I accept the well established view that interface properties, on which ever side of a zone boundary, have different opportunities and constraints than sites well removed from zone boundaries. Owners of residential properties next to a business or industrial zone cannot realistically expect the same level of residential amenity as someone residing in the middle of a purely residential area. Similarly, owners of commercial or industrial sites abutting residential properties cannot expect the same opportunities as owners of sites well removed from residential areas. This is explicitly recognised in planning policy as evidenced by the many references to commercial development maintaining and enhancing residential amenity and interfaces.
3. I have already commented that I agree with Mr Holdsworth that the building is of a high architectural quality. However I am concerned about the ways it interfaces with the 4 storey building to the north. I find it inexplicable that of the two light wells in that building, it is only the western one that has been acknowledged and responded to in the layout of this proposal by providing a light well opposite. While I acknowledge Mr Ng's comment about the technical requirements under the building code in terms of light wells and buildings on boundaries, the planning assessment provides an opportunity to consider broader amenity issues including the sharing of amenity. Indeed the Guidelines for Higher Density Residential Development makes specific reference to ensuring equitable access to outlook and sunlight. It may seem a small issue but it is one that needs to be addressed in any new proposal for this site. I note that Mr Holdsworth was open to the idea of changes being made to respond to the eastern light well.

Are the impacts on neighbouring residential properties to the east unreasonable?

1. The neighbours to the south east on the opposite side of the lane are particularly concerned about the impacts on their dwelling and outdoor living areas. In essence the owners are concerned that their amenity will be compromised by the six storey building diagonally across the laneway, and by possible overlooking and noise from the east facing balconies. Ms Lee and the other residents with east and west facing decks in the 4 storey building to the north are also concerned about the potential for overlooking.
2. Based on an assessment of the plans and elevations, I accept that some overlooking is possible, although in most cases it is beyond the 9 metres overlooking standard specified in the Planning Scheme. Mr Holdsworth was asked questions about this issue and I agree with him that fixed screens could be fitted to prevent any possibility of overlooking while still allowing outward views for people on the decks. This would be a preferable outcome to the existing semi transparent screens fitted to the decks on the adjoining 4 storey building. If I was granting a permit a condition could be included requiring such screens. A redesigned building can incorporate these.

1. Adoption of the parking rates in Clause 52.06 would result in 68 spaces being required (52 for the dwellings and 14 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 strange if a higher parking rate was applied to dwellings in a location with excellent accessibility to public transport and other services compared to dwellings less well served outside activity centres.
2. A total of 32 car spaces are provided in the basement car park of which 26 are available for the dwellings (1 per dwelling), 3 for the retail occupiers/operators and three unallocated short term and available for use depending on need. The removal of the redundant crossovers will provide up to 2 additional legal parking spaces in Melville Road, although the spaces will not be available during the morning peak Clearway times.
3. I 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 am 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 decisions, has acknowledged the superior benefits of a centre-wide approach to parking in such locations. I 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.
4. Parking will need to be reassessed in the light of any new proposal but, as a minimum, there should be full compliance with ResCode car parking rates for both residents and visitors, together with at least one space per shop.
5. VicRoads is responsible for the management of Melville Road as it is in a Road Zone Category 1. VicRoads' conditional approval for access arrangements to the development satisfies me that the access arrangements are acceptable. My refusal of this application may result in a different layout and different access arrangements with the result that this issue will need to be revisited in any new proposal.
6. Loading/unloading will occur from the street and is consistent with the practice adopted for both the review site and other sites within the centre. Council did not raise any objection to this aspect of the proposal.

1. The primary reason I have refused this application is because of the height of built form, not the concept of constructing apartment style dwellings on the site or because a more intensive form of residential development is contrary to planning policies in the Moreland Planning Scheme.
2. But let me be clear. This is not a proposal that can be tweaked by permit conditions or more substantially improved through a response to an interim decision. I consider that it needs to be scaled back. As indicated at the hearing, I am reluctant to attempt conditional changes (or issue an interim decision directing amended plans) and would prefer that the architect go away and freely respond to my concerns. Although Council suggested a condition requiring deletion of level 5, any deletion of one or more floors will require the overall design to be revisited.
3. Based on my assessment of the whole suite of relevant controls and policies, together with an appreciation of the site context, I consider that a building of 4 storeys would be a more acceptable response. However, I agree with Mr Holdsworth that it is not just about the number of storeys but is about the building as a three dimensional form. It would be a great shame if the many good features of this building, such as the sloping roof to the south, the central atrium, materials/colours and high levels of internal amenity, were lost when reducing its height.

1. For all of the above reasons I will direct that no permit is to issue.