Mr S D'Amico, town planner, Ratio Consultants Pty Ltd.

Mr D Bowden, town planner, Daniel Bowden Planning Consultants

It is proposed to amend planning permit PP07/01054 in the following manner:

Amend the permit preamble to "use and development of the land for residential apartments."

Delete condition three that requires a s173 agreement that restricts the occupation of the development to people aged 55 years and above.

Endorse plans that show limited modification to the internal layout of the building. It is proposed to modify the design of the building by the following changes:

Replace the basement lounge/waiting area with two car parking spaces.

Delete the central lift and reconfigure the stairs.

Section 87A Planning and Environment Act 1987

Clause 32.01-1 (use of the land for more than two dwellings in R1Z)

Clause 12.01 - Metropolitan development, a more compact city

Clause 21.05 - Heritage, landscapes and urban character

The review site is located on the south side of Belmore Road, generally between Glenluss Street and Bruce Street, Balwyn. The site has an irregular "L" shape, with a frontage of 17.3 metres, a depth of 54.3 metres and an area of 1,422 square metres.

The site is vacant. The land rises approximately two metres from the west to the east. It is not constrained by any special features or encumbrances.

The site is located in a residential precinct developed in the 1960's period. The adjoining land is developed for single and two storey single dwellings on each lot. Some medium density infill development has been developed on lots fronting Belmore Road and in the local streets, including Bruce Street.

Bus services operate on Belmore Road. Neighbourhood activity centres are located at the intersection of Belmore Road and Balwyn Road to the west, and Belmore Road and Union Road to the east. The site has convenient access to child care, local parks and schools. The Boroondara Sports Complex is located approximately 400 metres to the west.

BAMFA Properties v Manningham CC & Ors [2009] VCAT 663

Bestway Group Pty Ltd v Monash CC [2008] VCAT 860

I undertook an inspection of the site and its environs on 15 January 2010.

1. In June 2008, planning permit PP07/01054 was issued for the use and development of the review site for retirement apartments. The development comprised a two storey building over basement car parking. Pursuant to a s173 agreement, the apartments were to be occupied only by people aged 55 years and older. An application for a review of the planning permit was lodged with the Tribunal. However the matter was agreed between the parties and a permit was issued in July 2008. Council endorsed plans of the approved retirement apartments on 2 July 2009.
2. The proponents submit that economic circumstances have changed in recent times and that a development to accommodate only retirees is no longer economically viable. It is proposed to modify the preamble to the planning permit and to remove the requirement for a s173 agreement that limits the households that can reside in the development to people over 55 years of age. It is also proposed to slightly modify the internal design of the building to convert the residential apartments designed for retirees to nine apartments each with three bedrooms, that can accommodate all types of households. Two additional car parking spaces would be provided in the basement to meet the required provision of car parking. The exterior of the approved building remains unchanged.
3. The application was advertised to adjoining neighbours and eight objections were received. Council resolved to oppose the application on the basis that the use and development comprise a substantial change and that the built form should be entirely redesigned. Council also considers that the provision of private open space is inadequate and that the development would unreasonably overlook adjoining private open space and habitable rooms.

1. The request to amend the planning permit is made under section 87A of the Planning and Environment Act 1987. As set out in BAMFA Properties v Manningham CC & Ors[1]

This proceeding differs from one made under section 87 where there are a number of tests with respect to an application to cancel or amend a planning permit. Section 87A was introduced in September 2007 to give flexibility to amend permits at a permit holders request without the need to be tested against the same hurdles or tests in section 87. The potential latitude in such requests is broad as discussed by Deputy President Gibson in Bestway Group. The test for a request to cancel or amend a permit issued at the Tribunal's direction is, in the words of the Act, if the Tribunal considers it appropriate to do so [s87A (1)].

1. In considering whether it is appropriate to allow the amendments sought, it is relevant to acknowledge that it is common and usual to amend the design of a development after the issue of a planning permit. A design process is complex and may take several years. The assumptions and judgements that underpin a design are framed at a particular time. Financial, social and regulatory circumstances change. As Deputy President Gibson noted in Bestway Group Pty Ltd v Monash CC[2].

The planning system needs to be able to cope efficiently with such changes or other subsequent changes to the use or development of a site for whatever reason. It is important that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected they are notified and given an opportunity to be heard; and that applications are processed and decisions made about changes efficiently in a timely way. The reforms.....enables these objectives to be achieved by focussing on the proposed changes, rather than re-opening debate about the whole proposal.

1. Given the above direction, and the fact that the built form of the development has recently been approved, I shall limit my consideration of this application for review to the aspects of the permit and the plans that would be changed. This application for review is not be an opportunity to seek a reconsideration of the entirety of a proposed development. It must be recognised that a planning permit has been issued and plans have been endorsed. There would be little confidence in the planning process if these approvals are under review because the proponent seeks some modest changes to the development.
2. I acknowledge that the Council and resident submitters are concerned with particular aspects of the design of the development. These are the provision of private open space and the provision of screening to limit overlooking of adjoining private open space and habitable room windows. It is my view that it is appropriate to review these aspects of the development to ensure that the future residents of the proposed dwellings have satisfactory private open space, and that the possibly larger or more active occupants of the proposed apartments do not cause adverse amenity to their neighbours. I note that all parties made detailed submissions on these two matters, including the permit applicant who provided extensive details of the screening.

Are there any reasons to limit the types of households that may live in the development?

1. It is proposed to enable the development to be occupied by nine households that could comprise young and old single people, couples without children, parents and children, and groups of adults sharing a dwelling. In other words, households that are found living in the dwellings in the local streets and neighbourhoods in Balwyn. These households might vary from retiree households only by being younger and possibly larger households. Some of the households may include children.
2. I consider the key strategic directions that arise from the State planning policy framework contained in clauses 11, 12, 14 and 16 that are relevant to this matter to include:
   • On balance, proposals should provide a net community benefit and contribute to sustainable development;
   • Encourage urban consolidation in established urban areas to take advantage of existing investment in physical and social infrastructure whilst respecting neighbourhood character;
   • Encourage development that improves housing choice and accommodates future housing needs;
   • Promote good urban design to make the environment more liveable and attractive;
   • Protect cultural identity, character and sense of place;
   • Ensure that development achieves a reasonable standard of amenity for existing and new residents;
   • Encourage new buildings to be designed to be energy efficient;
   • Ensure that development respects the existing or preferred neighbourhood character.
3. The local planning policy framework generally supports the gradual development of a more diverse housing stock to meet the needs of smaller households. The local planning policy framework gives most weight to the intent to maintain the character of the neighbourhood and to protect the amenity of existing residents. Clause 21.05 recognises that new development should be sensitive to Boroondara's distinctive urban character. Clause 21.07 requires that discretionary uses in residential areas do not disrupt traffic, do not generate activities or noise that could adversely impact on its neighbours. It should also comprise a built form that is consistent with its neighbours. Clause 22.07 encourages design solutions that respond to the local neighbourhood character. In general, new developments should complement the existing built form in terms of materials, massing and detailing. In my view, this policy framework is not relevant to this review as the built form of the development has been approved and there are no proposals to modify the exterior form of the building.
4. I find that this development is consistent with state and local planning policies. It will provide additional housing choice to households presently living in the area, as well as households seeking to move into Balwyn. It will make a modest contribution to providing additional housing choice. The locality is capable of accommodating additional dwellings and households. The local area is well serviced, and the future residents in this development will enjoy convenient access to bus routes along Balwyn Road parks, schools, child care and local shops. The physical infrastructure of the area will readily accommodate the additional households.
5. It is my view that the occupation of the development by a more diverse range of households would be unlikely to cause any detriment to the neighbours. Younger households that comprise people in the workforce are likely to be absent from the dwellings during normal business hours. Households with children would be likely to have the parents in the workforce and children attending child care or school. These households are no more likely to generate unreasonable levels of noise than households comprising retirees. All households would be likely to entertain family and friends from time to time, and I have no reason to expect that they would do so in a manner that would disturb the privacy and amenity of their neighbours. The households that would be likely to live in this development would be no different to the households that currently live in Balwyn.
6. I note that the two storey built form was endorsed by Council on 2 July 2009, and no change is proposed to the built form and it is not a matter that I need to review. The primary physical change to the development that arises from the change of households is the provision of two additional car spaces. None of the submitters suggested that the additional vehicle movements to Belmore Road would cause any traffic difficulties. No changes were proposed to the access to Belmore Road, hence this was not contested.
7. I find that the proposed development is consistent with the planning policy framework. It is an appropriate development that would fit well within the evolving neighbourhood character of Balwyn. I find no reasons that suggest that widening the range of households that can reside in this development would cause any adverse impacts on the neighbours or locality.
8. I now turn to the two detailed design issues raised by the Council and submitters regarding possible off site amenity impacts on its neighbours and the amenity provided to its future residents.

Do the changes to the built form cause any adverse impacts on the neighbours?

1. Mr Bowden, Mr Sasse and Ms Robertson submitted that the proposed development would result in overlooking of the secluded private open space and habitable room windows of No 1 and 1A Bruce Street. These properties abut the southwest corner of the review site. I note that no changes are proposed to the built form of the development that abuts the properties of the submitters. The types of screens that would be applied to the windows and terrace are also unchanged. These matters were agreed between the parties when the current permit was under review by the Tribunal in 2008. The only element that may change is that some people who are younger than retirees might reside in units 7 and 8 that are closest to the submitters dwellings. These people may prefer to be on the terrace for longer/later hours, or may have better eyesight than retirees. I consider these changes to be marginal in terms of their impacts on the amenity of the submitters.
2. Given that overlooking is the primary concern of Ms Robertson and Mr Sasse, and that all parties came to the Hearing prepared to make submissions, I consider that it is appropriate to comment on the proposed screening. Mr D'Amico submitted that the screening to be provided to the first floor windows and terraces comprises planter boxes or fixed opaque screens. The planter boxes and screens are designed with a vertical lip extending out from the face of the building. Whilst the screens are only 1.3 metres in height, the effect of the width of the planter boxes and the protrusion is that downward overlooking of the adjoining properties is limited. At 9 metres from the windows, views from the windows of unit 7 would not intrude lower than 2.6 metres above natural ground level.
3. A similar arrangement is proposed for the terrace to unit 8. A planter box with a height of 1250mm and 825mm width would limit views into the adjoining properties to 2.28 metres at a distance of 9 metres.
4. I find that the proposed screening is suitable for this interface. It meets the objective of standard B22, which is to limit views into existing private open space and habitable room windows. I note that the primary open space of the adjoining dwellings (swimming pool, paved entertainment area and outdoor dining area are located at least 15 metres from the boundary fence. The upper floor habitable room windows of No 1A Bruce Street are at least 20 metres from the rear boundary fence. With the 3.3 metre setback of the terrace and upper level windows from the boundary, the provision for screening to the western outlook is satisfactory.
5. In respect of no 1 Bruce Street, the primary secluded open space (swimming pool and outdoor entertainment/dining are) are screened by that dwelling. Whilst an outdoor play area is within 9 metres of the dining room windows, they are screened to 1.3 metres, and views would not extend below 1.8 metres. I consider that this meets the objectives of standard B22 of clause 55.04-6.
6. The submitters were also concerned that with the massing and visibility of the proposed building. Given that the proposed modifications to the planning permit make no change to the approved external built form, I give no weight to this concern. It is important to provide certainty in planning and the built form has current planning approvals. I also note that visibility is not in itself a reason to reject new developments. Balwyn is an urban area, the land is zoned for residential development and in my view, it is almost inevitable that a two storey built form would be developed over most of this site.

Do the modifications provide satisfactory amenity for future residents?

1. Council and the resident submitters had no objection to proposed minor changes to the building. I am satisfied that the proposed changes would not have any adverse impacts on the amenity of the proposed dwellings for the future residents. Mr Bowden submitted that the proposed development is flawed as the provision of private open space (that may have been adequate for retirees) is inadequate for a wider range of households.
2. Each first floor dwelling would be provided with private open space in the form of a balcony or terrace. The ground floor apartments would be provided with secluded patios. All of the private open space areas are eleven square metres or greater and are located adjacent to dining/living areas. The screening provided to the first floor terraces prevents overlooking of the private open space areas of the ground floor apartments.
3. The first floor private open space areas for units 8 and 9 will have direct solar access in the mid to late afternoon. They meet the design requirement of standard B29 and are of a width that will provide usable and pleasant areas of open space. I note that they are not located on the north side of the walls of the building. However, also note that relocating the balconies of these units to the north side of the building is likely to require the relocation of an internal stair well, which could possibly make the layout of the car basement unworkable.
4. Mr Bowden submitted that an alternate design would be more suitable for nine medium density dwellings. It was put that households in a medium density dwelling prefer a different built form than is provided for retirees. I give no weight to this proposition. I must assess the modifications to the proposed development before me, and it is not the role of the Tribunal to speculate about alternate designs. Mr D'Amica, and the Council's planning officers report demonstrate that the proposed design meets the standards and hence the objectives of clause 55. I am satisfied that the design of the development would provide satisfactory accommodation for a wide range of households.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and the permit be amended.
2. The permit will include conditions that have regard to the submissions and evidence of the parties, and the matters that arise from my reasons.

[1] [2009] VCAT 663

[2] [2008] VCAT 860