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[2001] VCAT 1282
respondent. The application for review was disallowed and the Responsible Authority’s decision affirmed. A permit was directed to be issued generally in accordance with the Notice of Decision dated 2 November...
The Tribunal allowed the development to proceed, but required further changes to the plans and permit condition. It considered the proposed development in the context of the varied buildings on Octavia Street and concluded that the objectors had not established a compelling planning reason to refuse it. The Tribunal accepted eight resident parking spaces as sufficient in the circumstances, but required acceptable detailed design for the Bank Place driveway, levels and gate or other access control. It also imposed detailed requirements about building setbacks, roof forms, window privacy, landscaping and visual screening.
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In Carbone v Port Phillip CC [2001] VCAT 1282, the Victorian Civil and Administrative Tribunal’s Planning List considered a review application concerning a permit for five attached dwellings at 7–9 Octavia Street, St Kilda. The Responsible Authority, Port Phillip City Council, had issued a Notice of Decision to Grant a Permit on 2 November 2000. The proposal involved demolition of the existing dwellings and construction of four three-storey dwellings and one two-storey dwelling, with vehicle access to parking at the rear via Bank Place ([1], [14]).
2 cited instruments linked from this judgment.
Mr Frank Carbone sought review under section 82 of the Planning and Environment Act 1987. His objections included loss of privacy and light, shadowing, perceived overdevelopment and access problems associated with Bank Place ([1], [26]–[29]). Ms Merryl Officer, who lived nearby, was joined as a party after the Tribunal considered it desirable to do so under section 64 of the Victorian Civil and Administrative Tribunal Act 1998 ([5]–[8]). A separate proposed party did not pursue its joinder request ([8]).
The application had been mediated without resolution. The permit applicant later presented design changes but did not formally amend the application to substitute the revised drawings. Instead, it invited the Tribunal to consider those changes and require them through permit conditions ([2]–[4]). The Tribunal considered the competing versions and overlays explaining the changes ([9]–[12]).
The Tribunal identified four principal questions: visual bulk; compatibility with nearby buildings; compliance with the relevant performance measures and planning policies; and whether access and parking were acceptable ([32]). It inspected the subject site and nearby streets and properties after the hearing ([15]). The order disallowed the review and affirmed Council’s decision, but required condition 1 to be amended in detail before the permit issued.
The Tribunal’s approach was contextual and evaluative. The site was within a Residential 1 Zone, and the applicable scheme provisions required consideration of the Good Design Guide for Medium Density Housing and relevant State and local planning policy ([22]–[25]). The Tribunal did not treat the policy assessment as a box-ticking exercise. It observed that the relevant policies involved discretion and interpretation, and were not capable of being tested by arithmetic calculation ([53]).
On visual bulk and amenity, the objectors argued that the proposed buildings would dominate adjoining private open space, especially at the rear, and that the development would leave inadequate room for vegetation ([34]). The permit applicant relied on changes intended to reduce the effect, including increasing the planting strip along the rear boundary by moving the building closer to Octavia Street, reducing the apparent rear height and altering roof forms ([35]). The Tribunal considered the amended sections and the separation between the proposed buildings and neighbouring properties. It concluded that significant loss of amenity from visual bulk, overshadowing and overlooking had not been made out, taking account of the design changes and the amended condition ([39]).
The character question was not resolved by treating the adjoining heritage overlay as determinative. The objectors argued that the development should respect the character of the properties on Charnwood Road, which were within a heritage overlay ([41]–[43]). The Tribunal was not persuaded that the proposal would detract from those properties’ scale, form or setbacks ([42]). It also distinguished the character of Charnwood Road from that of Octavia Street. The immediate Octavia Street environment included varied building ages, types and designs, including modern townhouses and a substantial block of flats ([19]–[20], [44]–[46]). The Tribunal found the proposal compatible with the Octavia Street environs, while acknowledging that it would not necessarily be compatible with the different character of Charnwood Road ([46]).
The design assessment concerned more than height alone. The Tribunal considered the proposed grouping of dwellings, roof profiles, street setbacks, rear setbacks, landscaping and upper-level presentation ([32], [47]–[54]). It accepted that the positions advanced by both sides involved subjective judgements. It was not convinced that the proposal failed the relevant policies in a way that compelled refusal, particularly when the permit condition would require further design changes ([53]–[54]).
For parking, the Tribunal considered that the plans showed two bedrooms and a studio in several dwellings, rather than identifying each studio as a bedroom. It regarded eight resident spaces as sufficient in the circumstances, including because of the site’s relationship to public transport and the availability of on-street parking for visitors ([58]). It nevertheless described access and parking as “marginal but adequate” and made the conclusion dependent on satisfactory engineering design, including driveway levels and access control ([59]–[62]). The qualified character of this conclusion matters: acceptance of the general access arrangement did not remove the requirement for detailed plans addressing potential impacts.
The judgment does not describe a change in legislation or establish a new statutory test. It applies the planning controls and policy provisions that were before the Tribunal in 2001. Those included the Residential 1 Zone provisions at clause 32.01, the Good Design Guide for Medium Density Housing, the Municipal Strategic Statement, the Residential Neighbourhood Character Policy and the Urban Design Policy for new residential development ([22]–[25]).
The decision’s practical contribution in the text provided is its illustration of how those provisions were applied to a particular proposal. The Tribunal assessed the proposal against its site and surroundings, considered the competing planning judgements, and determined that detailed conditions could address aspects of design and amenity. It did not say that a particular building height, density or setback would generally be acceptable in other locations.
The decision also illustrates the distinction between a planning assessment and a precise numerical rule. The Tribunal stated that relevant policies requiring discretionary judgement could not be tested by arithmetic calculation ([53]). That observation should be read in the context of its discussion of the policies and evidence in this case, not as saying that measurements were irrelevant. The order itself specified minimum setbacks, window treatments and landscaping requirements in measurable terms.
The judgment, as supplied, does not identify later statutory amendments, later decisions applying this case, or any subsequent judicial treatment. It therefore cannot establish what the current planning controls are or whether later courts or tribunals have adopted, limited or distinguished this decision. Any account of the present state of the law or the decision’s later precedential history would require sources beyond this judgment.
At [39], the Tribunal concluded that the claim of significant amenity loss from bulk, shadowing and overlooking had “not been made out”, taking the required design changes into account. In plain English, the objections did not persuade the Tribunal that these impacts justified refusing the permit once the specified changes were secured through the condition.
At [45]–[46], the Tribunal explained that Octavia Street had a diverse streetscape and that the proposal would add to that variety. It distinguished Octavia Street from Charnwood Road, describing the latter as having a significantly different atmosphere and character. In plain English, the Tribunal did not treat the broader nearby area as having one uniform residential character. It assessed the proposal against the street it would front, while also considering the adjoining context.
At [53], the Tribunal said: “These are not policies which can be tested by arithmetic calculation.” The surrounding explanation is important. The Tribunal was discussing planning policies that required interpretation and discretion, in contrast to measures such as fence heights and dwelling numbers, which could be objectively stated. In plain English, the planning judgement involved weighing context and design rather than applying one formula.
At [54], the Tribunal said it was satisfied that the proposal responded to the site circumstances and achieved a satisfactory outcome, while acknowledging that some of the objectors’ views had merit. It found no compelling reason to refuse on the stated policy grounds, with minor amendments to the conditions improving the proposal. This shows that the decision was not a finding that every aspect of the proposal was ideal. It was a planning judgement that the proposal, with the required changes, was acceptable.
At [62], access and parking were described as “marginal but adequate in the circumstances”. The Tribunal conditioned that conclusion on satisfactory engineering design and access control. In plain English, the general arrangement could be accepted, but the details of how vehicles would enter and leave, and how unauthorised access would be prevented, remained important.
The judgment is most relevant as an example where a planning review concerns medium-density housing in a residential area with mixed building forms and competing claims about neighbourhood character. Its facts involved five attached dwellings, a Residential 1 Zone, a varied Octavia Street setting, nearby properties with a heritage overlay, and objections about bulk, light, privacy, landscaping, parking and access ([14], [19]–[25], [26]–[32]).
It is also relevant to situations where a permit applicant offers design modifications during a review and asks that the changes be imposed through a permit condition rather than formally substituting revised plans ([3]–[4]). The Tribunal considered the design changes and built detailed requirements into condition 1. The order specified roof forms, dwelling groupings, graduated setbacks, window privacy measures, a widened rear landscaping strip, and driveway and gate design requirements.
The decision may assist in understanding how a tribunal can assess distinct streetscapes within the same locality. Here, it treated Octavia Street and Charnwood Road as having different characters, rather than assuming that the heritage overlay on nearby properties dictated the design outcome for the review site ([42], [45]–[46]).
It should not be taken as establishing that five dwellings, three-storey development, eight car spaces, or access from a right-of-way will be acceptable elsewhere. The Tribunal’s decision depended on this site, the plans, the surrounding buildings, the policies then applicable, and the changes secured through the condition. The judgment itself does not state a general numerical rule for density, height or parking.
The supplied judgment does not refer to later cases, and the material provided contains no citations to subsequent decisions. The precedent-relationship field is therefore empty. No conclusion can be drawn from this text alone about whether later courts or tribunals have followed, distinguished, explained or otherwise treated Carbone.
The decision does cite statutory and planning-scheme provisions, but does not discuss other judgments. The sources identified include section 82 of the Planning and Environment Act 1987, sections 60 and 64 of the Victorian Civil and Administrative Tribunal Act 1998, clause 32.01 of the Port Phillip Planning Scheme, and relevant scheme policies and the Good Design Guide ([1], [5]–[8], [22]–[25]). The decision explains how the Tribunal applied those provisions and policies on the facts before it; it does not provide a history of their interpretation by later decision-makers.
For a current precedent search, the relevant question would be whether later decisions cite this case for its contextual approach to character, its use of permit conditions, or its treatment of access and parking. That research cannot be completed from the judgment text alone.
Several matters were left for later design approval rather than finally resolved by the hearing. The revised plans had to be submitted to and approved by the Responsible Authority before development began. Those plans were required to reflect the specified roof forms, groupings, setbacks and façade treatments, as well as window privacy and landscaping requirements (Order, condition 1(a)–(g)).
Access design was another issue left dependent on later detail. The Tribunal noted limited information about levels at Bank Place and the parking area ([59]). Condition 1(h) required a design, including driveway levels and gate or other access-control measures, that avoided adverse impact on nearby properties or Bank Place. The judgment did not set out the final engineering solution, or record a later approval of those details.
Landscaping also remained subject to a subsequent plan and approval. The Tribunal considered the proposed rear planting strip and required plants selected in consultation with the Responsible Authority, with specified planting height and screening potential (Order, condition 1(g); [63]–[64]). It suggested that landscaping plans consider driveway gradients, retaining walls and possible terrace planting ([64]). The judgment does not say what species were ultimately selected or whether the intended screen was achieved.
The Tribunal noted potential easement questions at the site, referring to easements shown on a plan and stating that it was assumed they would need to be removed or consents obtained before building approval ([16]). It did not determine the legal status of those easements or their effect on the permit.
Finally, the judgment does not establish how later planning-scheme amendments, design guidance or decisions affect the proposal’s assessment today. Its findings are tied to the policy framework and evidence considered in 2001. The text also records no later compliance, construction or enforcement proceedings. Those subjects remain beyond what can be concluded from this decision.
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The applicant has prepared amended plans showing the revised setbacks, as required by Council's Notice of Decision, and also noted the opportunity for the planting strip at the rear of the property to be increased to 900mm. This is to be achieved by moving the building 300mm closer to the street. The plans also note that the curved roof line on Units 4 & 5 can be modified to a more gentle slope at the rear of the building".
15. Following the conclusion of the hearing, I have inspected the subject site, as well as the two properties to the south at 4 and 6 Charnwood Road, and the car parking area adjacent and to the west, which utilises Bank Place for access by vehicles. I have also generally inspected the streetscape of existing houses in Octavia Street, Charnwood Road, and Octavia Crescent, Robertson Avenue and Moodie Place which intersect with Octavia Street.
16. The review sites are located on the southern side of Octavia Street, approximately 65 metres to the east of St. Kilda Road with a combined frontage of 24.5 metres, an eastern boundary length of 20.7 metres, and a western boundary length of approximately 20 metres. The total area of the site is approximately 510 square metres as confirmed by a plan of survey which was tendered by Mr d'Oliveyra of the two titles involved being Certificate of Title Volume 6577 Folio 372 and Volume 10177 Folio 604. This survey document also provided some levels to AHD of the two existing single storey dwellings standing on the two sites, as well as of existing garden bed levels, courtyards and street details, which were apparently utilised by the Architects in the formulation of their design. A further survey document being a plan of consolidation of two earlier titles which was registered at the Land Titles Office on the 6 July 1994, (PC 352112N) had the notation that an easement labelled E-1 for drainage and way in favour of other land would merge upon registration of the plan. I did take note that other easements labelled E-2 and E-3 were also shown on the plan, and it is assumed that these will either need to be expunged or consents obtained from interested parties, to the placement of buildings and/or structures within those easements, prior to building approval being granted. The existing house on No. 9 Octavia is built boundary to boundary and has a zero setback off Octavia Street.
17. Small courtyard gardens presently exist at the rear of each dwelling, and there are currently two driveway crossovers from the review site onto Octavia Street with a driveway to the western side of the existing single storey house at No. 7.
18. The subject land slopes to the north west with a crossfall which was provided by Mr d'Oliveyra of 2.3 metres between the south eastern and north western corners. It is also obvious that the rear garden areas are excavated below the original ground level, and the common fence between the review site and Mr Carbone's property, is a corrugated iron with trellis top fence approximately 3 metres high, with the courtyard approximately a further 600mm below the ground level of the Carbone property.
19. It was common in the descriptions by both Ms Katz and Mr d'Oliveyra, that the surrounding area has a wide mix of residential development forms, including single and double storey buildings, attached and detached, some of which are Victorian and/or Edwardian, and some are modern two storey town houses. The one significant exception to this description is a conventional 1960's block of double storey walk up flats to the immediate east of the review site, which have been setback approximately 8.3 metres from Octavia Street with a large concrete paved residents car parking area occupying the whole of the frontage setback and the entire site has been generally covered by concrete for pedestrian or vehicular use.
20. All parties agreed, that the buildings in Charnwood Road, are larger and generally more substantial than the smaller houses which are found in Octavia Street. They have significantly greater vegetation in both front yards and rear yards than the properties in Octavia Street. As stated later in these reasons, Charnwood Road properties are covered by a heritage overlay with a northern limit along the southern boundary of the review site, and its western boundary along the eastern alignment of Bank Place, and then along St. Kilda Road further to the west. There are no overlays covering the Octavia Street properties.
21. There was general agreement relating to planning controls affecting the review site.
22. The subject site is located within a Residential 1 Zone, and is not covered by any overlay. Pursuant to Clause 32.01, a planning permit is required to construct more than one dwelling on an allotment, and Clause 32.01-4 stated as part of the decision guidelines that the Responsible Authority (and this Tribunal on review) must consider the Good Design Guide as the assessment tool. That Clause also nominates matters which must be considered as appropriate before deciding any application on land within a Residential 1 Zone including:
* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and Local Planning Policies.
* The Good Design Guide for Medium Density Housing Revision No. 2 April 1998 and any local variation incorporated in this scheme. This does not apply to the development of five or more storeys excluding a basement.
23. Mr Beard for the City of Port Phillip, advised me that the relevant planning scheme provisions include:
Clause 21.02 to 21.04: Municipal Strategic Statement (MSS) (LPPF).
Clause 22.01: Residential Neighbourhood Character Policy.
24. Mr Beard further set out in his written submissions specific sections of the MSS which established the Strategic Planning Policies and objectives which underpinned the land-use and development provisions of the scheme and he annexed to his written submission, photocopies of relevant pages of the forty three page MSS found in Clause 21.05. These Clauses were also extensively referred to by Ms Katz in her written submissions, and she also annexed as appendices to her written submissions, a comprehensive set of photocopies of pages including Clause 21.04-6, 21.05-1, 21.05-3, 22.01 and 22.05 (Urban Design Policy for new residential development). This latter Clause sets out the Council Policy which "applies to all residential development not covered by a Heritage Overlay that requires a permit under the Good Design Guide for Medium Density Housing. This policy is in addition to the requirements of the Good Design Guide".
25. The Urban Design Policy basis is found in Clause 22.05-1 and specifically refers to Clauses 14.02, 16.02, and 19.03 of the SPPF, as well as to the MSS section found in Clause 21.05 (Relating to Urban Design and Neighbourhood Character) and finally to the Port Phillip Urban Character Study 1998. The objectives set out in Clause 22.05-2 are then followed by a number of policies relating to dwelling density, scale mass and orientation, setbacks and other design features, which are in turn also referred to in the performance measures found in this sub-clause.
26. The review of Mr F. Carbone was based on three grounds, set out below, and reference was also made to a more lengthy explanation of the basis of his opposition, being the original objection he lodged at Council dated 10 February 2000.
* Access problems from Bank Place with adjoining owners.
28. The details of his objections were related to his perceptions of:
* Demolition of a "classic" Victorian property at No. 7 Octavia Street removing "our heritage".
* Presence of windows facing directly into the back of his property resulting in loss of privacy.
* Increased traffic along Bank Place being a roadway over which the objector enjoyed access rights, and related issues.
29. Grounds relied upon by the Permit Applicant, in resisting the issues raised by Mr Carbone:
1. The proposal has been carefully designed to complement the character of the neighbourhood.
2. The proposal does not represent an overdevelopment of the site.
3. The proposed development will not cause loss of amenity to the objectors property by virtue of privacy intrusion, overshadowing, daylight obstruction or otherwise.
4. The proposed use of Bank Place as a means of access to the site is lawful and entirely reasonable, and will not impinge on the rights and entitlements of the objector.
5. The proposal satisfies the relevant planning policies and design guidelines contained in the Port Phillip Planning Scheme.
6. The decision of the Responsible Authority to approve the proposal was soundly based, and should be upheld.
30. The grounds relied upon by Ms Officer in applying to be joined as a party include:
The proposed development is too dense for the site. It is too high, blocking our northern light and overlooking our outside living area. Not adequate parking on site and therefore will add to the Charnwood Road problem.
The key issues requiring consideration by the Tribunal in this review
31. For the Objectors/Applicant for Review, Ms Katz summarised their main issues of concern in the following way:
"This proposal raises a number of concerns, primarily resulting from the dominance and intensity of the development. These matters will be addressed in detail below, but the nature of development is one that will result in a significant loss of amenity to Mr Carbone and others who back onto the site, as well as having a detrimental affect on the streetscape character of Octavia Street.
A review of the Planning Scheme provisions, Good Design Guide requirements and State and Local Planning Policy Framework objectives strongly suggests that this development is inappropriate for this location. We consider that Council's consideration of this proposal is somewhat flawed and that insufficient regard was given to the impact of this development on adjoining property owners and occupiers".
32. Having regard to all of the considerable arguments which were advanced by Ms Katz in a comprehensive well structured submission, I believe that the key issues are:
(B) Is the design of the subject dwellings responsive to and compatible with the characteristics of existing buildings adjacent to and in the immediate vicinity of the site?
(C) Are the four performance measures in Clause 22.05 respected and is the proposal consistent with the objectives and policies relating to scale mass and orientation, roof forms, set backs, landscaping and open space?
(D) Is access via Bank Place acceptable, and are the proposed car parking provisions adequate?
33. I now propose to deal with each of these four issues.
34. Ms Katz emphasised in her submission that the bulk exhibited by the development plans was inappropriate as it placed double and three storey dwellings from boundary to boundary and within 1.8 metres and 5.1 metres from the front and rear boundaries respectively. As a result, she claimed the proposal would `tower' over the private open space areas of her clients' properties (especially 4 Charnwood Road) with a height of building which was not commonly found in the immediate vicinity. She argued that there were gaps generally between existing dwellings along Octavia Street, and that the subject proposal would not provide for any vegetation to be planted between dwellings and that this would have a negative impact on the streetscape. She claimed that the development sought to borrow the landscaping and open green spaces from adjoining properties to the rear and the west rather than providing `adequate screening opportunities' within the review site.
35. For the Permit Applicant, Mr d'Oliveyra argued that design changes made to the original drawings were intended to meet concerns raised by Mr Carbone in particular regarding the bulk and visual impact of the development on the properties to the south. The modifications included a reduction in the front setback of the development by approximately 300mm enabling an increase in the landscaping strip along the rear boundary to be increased to approximately 900mm. He also pointed to the reduction in height of the rear of the building so that it would have an effective height (when viewed from the properties to the south), similar to that of the two storey block of flats existing to the east, and that alterations had been made to the roof forms so that they would not be visible from the rear garden of the objectors property. Cross sections tendered to the Tribunal, demonstrated the points raised by Mr d'Oliveyra. (Drawing TP20C).
36. For the Council, Mr Beard addressed the Tribunal on each of the assessments made by Council Officers of the July 2000 revised plans, in terms of the Urban Design section of the MSS, and the Urban Design Policies in the Planning Scheme Ordinance. He pointed to the number of parts of condition 1 requiring setbacks for each of the groups of dwellings, as well as the changes to the roof forms which Council believed would result in an outcome acceptable in the context of the subject review site. He stated Council had concluded that the reflection of the prevailing scale was achieved through the proposal being no higher than the abutting flats to the east, and through the upper level being a recessive element in the street, setback up to 5.5 metres from the front boundary. "The recessiveness of the upper level would be further enhanced with the curved roof nature of portion of the proposal. The scale of the proposal will not be out of keeping with the streetscape of the area, noting these elements and the way the proposal reflects high quality design principles (minimising bulk) and grouping of the proposal to de-emphasise its width".
37. Mr Beard also pointed out that the setbacks were closely aligned to the abutting buildings to the west, although the proposal would be noticeably further forward than the flats to the east. The Tribunal notes the present house on 9 Octavia Street is built to the common boundary, as well as to the Octavia Street frontage. Nevertheless, the proposed dwelling closest to those flats has been setback further than the other proposed dwellings in order to create a staggered effect.
38. He also informed the Tribunal that Council had assessed that the sightlines would be such that the upper level would be difficult to view due to the fact that Octavia Street was relatively narrow, and that there was scope to further change roof forms with the "centre" and western buildings considered as more appropriate if they were designed with gabled ended pitched rather than curved roofs as this would further tie the building into its neighbourhood context.
39. Reflecting on the competing arguments, and having specific regard to the amended sections drawings provided to the Tribunal, which highlight the separation of the objectors buildings from the proposed dwellings, and the potential for future landscaping, I have formed the view that the perception of the Applicant for Review that there would be a significant loss of amenity by reason of visual bulk, overshadowing, and overlooking, has not been made out, having regard to the design changes already made, and also required by condition 1 (as amended), which have been adopted for my Order.
40. The property No. 6 Charnwood Road has a limited abuttal to the review sites of between 2 and 3 metres. In my view, the presence of the existing flats at 11 Octavia Street is far more likely to dominate in terms of visual bulk the rear private open space area, and windows in the rear rooms of 6 Charnwood Road, than the proposed redevelopment of 7-9 Octavia Street. It is in response to this situation, that a pergola has been built above the rear terrace of the property owned and occupied by Ms Officer, and the encouragement of climbing plants on that pergola, with high vegetation being grown along the northern fence, although windows remain fully visible in the southern façade of the two storey flats as there is no attempted screening of those windows in a similar fashion to that proposed in the subject proposal under review.
Issue B - Is the design of the subject dwellings responsive to and compatible with the characteristics of the existing buildings adjacent to and in the immediate vicinity of the site?
41. When addressing this issue, Ms Katz drew attention to the objectives of the Residential Neighbourhood Character Policy found in Clause 22.01-2, as follows:
* To protect and enhance the distinctive character of the established residential areas of Port Phillip's neighbourhoods, and particularly those elements that contribute to a sense of place, community, and identity.
* To conserve and enhance the rich architectural and cultural heritage of Port Phillip.
* To encourage development that is responsive to the site and its context, integrates with and enhances the prevailing neighbourhood character in established residential areas.
* To encourage new development to create a new character in the identified grown areas consistent with the design objectives of the DDO.
42. Ms Katz directed the Tribunal's attention to the third of the following policies set out in Clause 22.01-3 where it is stated:
* Require new development to respect and not detract from the scale, form and setbacks of nearby heritage places in the Heritage Overlay.
She claimed that since there was a heritage overlay covering the properties on the northern side of Charnwood Road, that Council was required under this policy to require the redevelopment of Nos. 7 and 9 Octavia Street, to respect and not detract from the scale, form and setbacks of the Carbone and Officer properties, and the proposal failed to do so. I must say that I am not sure whether either No. 4 or No. 6 Charnwood Road are `heritage places' as defined in Clause 22.04-2, and I am not convinced how the proposed re-development of Nos. 7 and 9 Octavia Street would detract from the scale form or setback of those properties in any event. Mr d'Oliveyra argued that the Heritage Overlay is not intended to provide increased amenity for adjacent private open space areas of residential properties which are in an area covered by a Heritage Overlay.
43. Ms Katz further directed my attention to a second policy found in Clause 22.01-3, which stated that it was policy to:
* Discourage new development including alterations to existing buildings that cannot be achieved without adversely affecting the character of the surrounding area or the amenity of adjoining properties.
44. Later in Clause 22.01-3, the "St Kilda neighbourhood" is stated to have a number of elements, with the most relevant being as follows:
* The diverse architectural styles and forms that include an excellent collection of single and multi-dwelling developments dating from the 19th and early to mid-twentieth centuries up to the present.
* The highest scale of development (predominantly 2-3 storey and sometimes 4 storey buildings) in streets such as Alma Road, Barkly Street, Beaconsfield Parade .................... (not applicable).
45. I previously referred to the variety of ages, styles and scale of buildings existing in the immediate area. I do not believe that the area is one which can claim to display consistent appearances (of dwellings) and while the intended style of the proposed redevelopment will not be the first preference of everyone, it will be a style which will add to the present variety, as well as incorporating some features of the more modern developments on nearby properties. In the context of the review site and its frontage to Octavia Street, I do not find it offensive, and since it is required to be further articulated and the concept creates three distinctive sections, it was deemed acceptable to the Council who assessed it in some detail against their own policies and urban design principles found within their MSS.
46. I find the present streetscape along the south side of Octavia Street is particularly diverse and rather dominated by the extensive frontage of the existing flats to the east at No. 11 Octavia Street. Even opposite the review site, are a series of two storey town houses with modern design elements, and with a general appearance presented to the street which has not attempted to replicate any era of the past, I have been persuaded to the view that the proposal will be compatible with the existing buildings in the immediate vicinity of the site, and in particular, with those buildings in the Octavia Street environs. This is not to say, that they would be compatible with the "other existing buildings" in the immediate vicinity of the site "namely those with frontages to Charnwood Road, however they are already quite different to those with frontages to Octavia Street, having a range of sizes and ages of buildings which are quite different, although they also include single houses as well as blocks of flats with different setbacks and greater areas of landscaping in front setback areas. Charnwood Road, has in my view, a significantly different atmosphere and character to Octavia Street.
Issue (C) - Are the four performance measures in Clause 22.05 respected, and is the proposal consistent with the objectives and policies relating to scale mass and orientation, roof forms, set backs, landscaping and open space?
47. In her written submissions, Ms Katz drew attention to the provisions of Clause 22.05 "Urban Design Policy for New Residential Development" and the objectives found in Clause 22.05-2, which state:
* Be responsive to the site and its neighbourhood context.
* Integrate with the prevailing neighbourhood character and contribute to the amenity and vitality of the area.
* Minimise detrimental impacts on neighbouring properties and open space.
48. Ms Katz disagreed with the Council's assessment report, and submissions to the Tribunal, claiming that "there is a strong heritage character in the immediate area (to the rear), which has been acknowledged by the inclusion of the adjoining properties in a Heritage Overlay area".
49. She argued that the proposal did not accord with the general rhythm or scale of the surrounding development, giving reasons that there were no three storey dwellings in the vicinity, no separations provided between the individual proposed dwellings, (where existing developments do provide physical gaps) and that providing first and second floor terraces close to the frontage of the street, does not reflect surrounding developments. Finally, she argued that justifying the proposal by reference to the existing 1960's flats to the east, on 11 Octavia Street, was a poor planning response as these flats should not be seen as setting the character of the area which she argued was a predominantly low rise area.
50. Ms Katz provided the Tribunal with her assessment (on behalf of the Applicant for Review and objectors), of the proposal against each of the four performance measures found in Clause 22.05-3.
51. Mr Beard for Council, also provided the Tribunal with the Council assessment of the level of satisfaction of Council policies set out above, and the performance measures to be taken into account. He submitted the following positions taken by Council (through pages 9-15):
* Council contends that the proposal is generally in keeping with the character of the area in terms of Victorian references (lower level façade design and detailing in particular) and the modified plan which "groups" the buildings suitably refers to the rhythm of the streetscape without attempting to create a large terrace development.
* The proposal is considered low rise especially noting that the upper level is set well back from the street and will be a recessive element and also noting that relatively large buildings existing nearby. In this context a three storey proposal is not considered medium or high rise.
* Council submits that the proposal with its modified roof form (lowered bulk and visual interest) would not cause substantial detriment.
* Council acknowledges that the proposed building would be a noticeable element compared to current outlook, but with the upper most element being over 6 metres from the rear boundary and the nearest dwelling behind being a further (generally) about 8 metres away, Council submits that overall visual bulk would be acceptable.
* The proposed rear wall complies with the Good Design Guide setback when measured to the ground level of the abutting sites behind. Even so, Council considers that the rear elevation required modification so that the upper level recedes further (at least 1 metre) and that the architectural treatment emphasises the second level rather than the third. The conditions on the Notice of Decision reflect this requirement and as noted above, impact would be reduced to a reasonable level.
* In terms of streetscape character, Council considers that the plan assessed would achieve a suitable balance between building variety currently in the street, integration into the street and minimising overall building height and bulk.
* It should also be pointed out that the existing east wall of the house at No. 9 Octavia Street is clearly visible from the street across the car park of the abutting flats and that the proposed new wall on that boundary would create a similar boundary.
* The proposal has been designed as a contemporary interpretation of a Victorian Terrace, but has been designed to be no higher than the abutting 1960's flats and has been "grouped" to lessen the (impression of) width of the proposal. Council submits that the proposal would read as a two storey building from the street.
52. In assessing the scale, massing, and siting of the proposal, the Council explained that for the most part, when assessing the dominant visual streetscape element as being the mass and scale of the building up to the balustrading immediately above the middle parapet level rather than the upper most level. A modified pitched roof and the front wall of the upper level (in particular) will be recessive elements in the street, but nonetheless important in terms of streetscape integration.
In that sense Council concludes that the overall mass of the proposal is satisfactory with an overall height to the top of the abovementioned balustrading of about 6.6 metres above ground level. Such height is not out of context in this streetscape locality especially noting the buildings next door and opposite.
53. The Tribunal is very conscious that a number of the assessments presented by Ms Katz, do have some merit, and some of the assessments made by Mr Beard, and briefly quoted above, are equally subjective. This situation is quite typical when policies are so worded, to provide for the exercise of discretion, and the need for interpretation rather than precise statements of prescription. These are not policies which can be tested by arithmetic calculation. Heights of front fences, dwelling densities and mixtures, are measures and statements of fact.
54. Having regard to the various submissions which were made by the parties, and noting that there were no statements of expert evidence provided at the hearing, I have formed the view that the proposal satisfactorily respects and responds to the circumstances of these review site, and achieves a satisfactory outcome. I do retain some sympathy with the view expressed by Ms Katz, however I do not consider there is any compelling reason justifying a refusal of the proposal on the basis that it fails to comply with policies of the Council relating to roof forms, setbacks, landscaping and open space, or scale mass and orientation. I am satisfied, that with minor amendments, the proposed conditions set out on the Notice of Decision further improved the outcome of the proposal.
Issue D - Is access via Bank Place acceptable, and are the proposed car parking provisions adequate?
55. On behalf of Mr Carbone, Ms Katz acknowledged that Bank Place was a fully constructed right-of-way, considered as a public road. Nevertheless, she argued that it was not suitable for two-way traffic with a high potential for dangerous vehicle manoeuvers, which would be accentuated by limited visibility of vehicles travelling in a southerly direction from the review site due to differences in level between the property and the roadway of approximately 1.5 metres.
56. In terms of numbers of car parking spaces proposed to be provided within the development, Ms Katz argued that each of the four, three storey buildings could accommodate three bedrooms and accordingly it was reasonable to expect that two car spaces should be provided to each of these dwellings and accordingly a requirement for ten on-site resident and one on-site visitor space should be provided.
57. The Council Officer report on the application assessed each of the dwellings as being two bedroom, thereby requiring eight car spaces plus one visitor space making a total requirement of nine spaces. On the basis that two spaces would be returned to the street accommodation of vehicles following re-instatement of crossovers, the assessment of the Officers Report was that the car parking provision was satisfactory.
58. I have previously referred to my reading of the plans as disclosing two bedrooms for Unit 1, two bedrooms and a studio in each of Units 2, 3 and 4, and one bedroom, a study, and an entry space (at ground level) for Unit 5 (ignoring living, meals, kitchen and bathroom areas). While acknowledging that "studios" could potentially be used as a bed/sitting room, they are nevertheless not nominated as bedrooms on the proposal plans and accordingly it appears to the Tribunal to be reasonable to assess GDG Element 8 in the fashion adopted by the Officer's Report. The term "studio" as distinct from "study" is not a term used in the Good Design Guide, and in any event, having regard to the location of the review site relative to public transport, and the availability of car spaces on-street for visitors, it is considered reasonable to accept eight car spaces as being a sufficient number for the proposed redevelopment.
59. With regard to the arguments advanced by Ms Katz regarding the safety of Bank Place as the sole means of providing access to and from the subject car spaces, there is very limited information provided on the plans regarding the levels of Bank Place and the car parking area and driveway on the site. Accordingly, it is open to mis-interpretation what the difference in level may be and how that is to be handled. I have accordingly included an additional part of Condition 1 requiring the design (including levels) of the driveway and gate to be submitted to and approved by the Responsible Authority, avoiding adverse impacts on nearby properties.
60. In framing this condition, the submissions of Mr d'Oliveyra, were taken into consideration. In particular, he stated that: "the parking area is to be laid out in a way that enables all vehicles to enter and leave the land in a forward direction (in accordance with the dimensional standards specified in the Good Design Guide). The rear entry to the land is to be secured by remote-controlled gates. Visitors will be encouraged to park in Octavia Street (aided by the fact that the proposal provides for a closure of two crossovers and will therefore result in kerbside parking accommodation to be provided in front of the development for up to four cars). The rear entry to the land from Bank Place will therefore be restricted to residents use".
61. Mr d'Oliveyra also submitted in support of the proposition to use Bank Place, that:
* Bank Place is a public road, which is constructed and used for two-way traffic movement. It is not a private driveway within the adjacent office car park.
* The subject land has a legal right of direct access to Bank Place.
* Access can be provided to the subject land from Bank Place without causing any interference to the safe and orderly movement of traffic or any obstruction to the rear gateway of the objectors property (which is not used anyway).
* Bank Place is of short length and does not have an interface with any residential properties other than the objectors property. The evidence suggests that this is not a sensitive interface.
* Bank Place has excellent connectivity to St Kilda Road, via Charnwood Road.
62. Following my inspection of the site and of Bank Place, and the car parking area to the west, and the access gateway into the rear yard of the property owned and operated by Mr Carbone, I am satisfied that subject to a satisfactory engineering design of the alterations to the northern extremity of Bank Place to provide appropriate vehicular access to and from the driveway and car parking area, and a satisfactory design integrating a remote controlled access or other means of preventing unauthorised access which does not impact on vehicular movements in either direction, that the provision for vehicle movement and parking is marginal but adequate in the circumstances.
63. While not considered to be a key issue, the question of the future landscaping of the proposed development, has not received a great deal of attention on the plans forming part of the proposal. Reference is made on drawing TP01 Revision B, to the retention of an existing tree, (species not identified) in the south western corner of the site, and the provision of a series of plants and trees along the south eastern and southern boundaries, adjacent to No. 11 Octavia Street and No. 4 Charnwood Road. The notation "boundary hedge, James Sterling Bhosporum" (sic) with ground covers not nominated as two species also being diagramatically shown. That plan also shows existing "GI fence nom 1.8m" however, it is believed that the existing fences along both the south eastern and southern boundaries are greater in height.
64. It is believed that a landscape plan should be prepared and provided to Council, for assessment by the relevant department or officers, so that the chosen species and height of those selected plants can be specified at the time of planting, with a potential for them to grow to 5.5m and create an effective visual screen in satisfaction of the expanded Condition 1(g) incorporated in my Order. Further, this plan should also incorporate the gradient of the driveway and the means of retention, including details of any retaining walls found necessary, of the garden areas within the car parking region. This will require consideration of the form of the remote controlled gates (hinged or sliding) and whether they should be solid or open materials. It would be also worthwhile consideration being given by an experienced landscape designer, in consultation with the project Architects and the Responsible Authority, whether planter boxes would be appropriate on the terraces of the first and second floors, and the form of vegetation to be introduced into the front yards behind both the timber and brick fences which have been nominated for each of the five proposed dwellings.
65. I am satisfied that the proposed treatment of south facing windows, with sills being either provided at least 1.6 metres above floor level, or with fixed translucent glass to that same level, will satisfactorily avoid overlooking from the second floor level of dwellings 2,3, 4 and 5.
66. It is for the above reasons, that I have determined that it is reasonable for a planning permit to be issued in respect of this development, and I will so order.
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Carbone
Port Phillip CC [2001] VCAT 1282
The application for review was disallowed and the Responsible Authority’s decision affirmed. A permit was directed to be issued generally in accordance with the Notice of Decision dated 2 November 2000, with condition 1 amended to require revised plans incorporating the listed design principles and other specified measures. Conditions 2–8 were to remain identical to those in the Notice of Decision.