Victorian Civil and Administrative Tribunal|2009-05-06|Before: Mr J

Central Estate Properties Pty Ltd v Manningham CC [2009] VCAT 867 (6 May 2009)

Application under section 77 of the Planning and Environment Act 1987; Manningham Planning Scheme; Residential 1 Zone; Retirement Village; Proposed building of between two and four storeys; Local Planning Policy guidance on extent of change, specifically incremental change; Impact on Neighbourhood Character; Visual bulk, overlooking and overshadowing, Amenity impacts on neighbours; Reduction in car parking; Alteration to access to a Road Zone Category 1.

Central Estate Properties Pty Ltd v Manningham CC [2009] VCAT 867

The decision of the Responsible Authority is affirmed.
In permit application PL08/019225 no permit is granted.

Mr A Biacsi, Town Planner of Contour Consultants;
Mr J Patrick, Landscape Architect of John Patrick Pty Ltd; and
Mr M Harridge, Traffic Engineer of O'Brien Traffic.

Ms S Moser, Planning Consultant, appeared for B & H Law, Z Vasigh and S Davey and C & M Tucci

This is an application to construct a two to four storey building containing 47 apartments for use as a retirement village. It will also contain a reception area, day spa, facilities for a doctor and hairdresser, pool, gymnasium, dining area, library sitting areas and a private function room. Fifty two car spaces are provided within the basement (including one tandem car space) with a circular driveway from King Street with a loading area and access to the basement available off the circular drive.

cl 32.01To construct a building or construct or carry out works and to use the land for the purpose of a Retirement Village on land zoned R1Z.

The review site is located on the north side of King Street, in a mid block location to the east of Ashcroft Avenue.

The land is vacant and has a total area of 4,048m2 with a cross fall of approximately 6.6 metres from the southeast to the northwest.

The site has a frontage of 40.24 metres to King Street and a depth of 100.6 metres. The rear boundary is setback 2.03 metres from the Greenridge Avenue frontage. This 2.03 metre wide area of land forms part of the adjoining property at 82 Greenridge Avenue.

The King Street frontage extends beyond the property line of the adjacent properties by approximately 2.5 to 3 metres.

The site has little to no vegetation and two existing vehicle access points to King Street, one constructed in and the other in gravel.

This is an application to review the decision by Manningham City Council ('the council') to refuse to grant a planning permit for the construction of a four storey building with basement car parking for use as a retirement village at 31-33 King Street, Templestowe.
The council refused this application on the following grounds:
1. The proposal is inconsistent with the strategic objectives of the Municipal Strategic Statement, particularly at cl 21.12, of the Manningham Planning Scheme owing to the poor side setbacks, lack of stepping in the built form and lack of height transition within the site to the lower scale residential development to the east and west of the site.
2. The proposal is inconsistent with Manningham's Residential Strategy at cl 21.12 of the Manningham Planning Scheme as the subject site is located in Precinct 4 which anticipates an incremental level of change only.
3. The proposal is inconsistent with the Design Guidelines for Higher Density Development as the design response for the proposed development does not respond to the urban context, the proposed setbacks to side boundaries will have a detrimental impact on the amenity of adjoining dwellings, and lack of stepping in the building mass to create a sensitive interface with adjoining buildings.

This hearing was not completed within the allocated two days on 29 and 30 January 2009, therefore a further hearing day was set aside. Orders were issued on 2 February 2009 facilitating this and:
- Substituting the amended plans that had been circulated in accordance with the tribunal's practice note requirements (refer order 1); and
- Joining Maggie Wong and Abbas Emani as parties to this proceeding (refer order 2).
We inspected the site and surrounds prior to the continuation of the hearing.
When the hearing continued on 5 March 2009, Ms S Hazel sought leave to participate in the remainder of the hearing, which we granted.
At the commencement of the hearing on 29 January 2009, Mr Cicero advised that he did not intend to call or rely upon the expert witness statement prepared by Mr Tong, therefore this evidence has not been considered as part of our determination of the merits of this case.
Ms Moser pointed out that there had been an administrative error in regard to one of her clients (C & M Tucci) as, during the Tribunal's processing of the application for review, C & M Tucci had been added as part of the applicant to this proceeding rather than as a respondent. As such, Ms Moser requested leave from the Tribunal for the applicant's name to be amended. This is not necessary, but we have instructed the Tribunal's registry staff to correct the error when this order and our reasons for the decision are published.

The site is an unusually large allotment in a conventional suburban residential area developed in the last quarter of the twentieth century.
The site is a rectangular shaped lot located on the north side of King Street, approximately 280 metres east of the intersection of King and Victoria Streets. The King Street frontage of this site projects forward of the frontages of adjacent and nearby allotments that also have frontage to King Street. The site extends through to be visible from Greenridge Avenue to the rear (north), but it has no access or direct frontage to this street as it is separated by an area of land that is 2.03 metres wide and forms part of the adjoining property at 82 Greenridge Avenue. The site is vacant but previously contained a dwelling, large shed and other outbuildings together with a row of large pine trees along the western boundary. Now, the site is vacant with little or no vegetation and scouring from the placement of cut and fill over various parts of the land. Overall, it has a cross fall of approximately 6.6 metres from the southeast to the northwest corners of the site, including two escarpments that fall 1 metre and 2.8 metres respectively.
The surrounding area is an established residential neighbourhood which Mr Montebello advised has been developed in the last 30 years. We agree with Mr Biacsi's neighbourhood character description of detached housing on conventional suburban lots and a combination of single and two storey building forms with a mix of native and exotic vegetation. We also agree with the description of the surrounding area contained in the council officer's report, which notes a mixture of architectural styles, recent medium density development usually comprising double storey dwellings, front setbacks of 7 to 8 metres, tiled pitched roofs, and materials usually comprising brick veneer with some render.
The size of this site means that it has an interface with six adjoining properties. These properties front King Street, Norwich Place and Greenridge Avenue and are all single detached houses except for 35 King Street. This property has been developed with two single storey dwellings and a common driveway that is adjacent to much of the review site. In total, five of the six adjacent houses have their secluded private open space areas next to the boundary with the review site. In addition, the slope of the land in this area means some of the dwellings and their private open space are at a lower level than the review site.
King Street is a primary arterial road that runs in an east-west orientation between Williamsons Road to the west and Blackburn Road to the east. It contains one lane of traffic in either direction as well as a bicycle lane in either direction. It has a speed limit of 60km per hour. It also has unmade footpaths and open drains in the vicinity of this site.

It is proposed to construct a two to four storey building for use as a retirement village containing 47 apartments and basement car parking. It will provide accommodation for persons over 55 years of age and includes a variety of services and facilities such as a library, dining room, pool and sauna and a gymnasium.
Vehicle access to the site will be via a curved driveway from King Street, with access to the basement car park via the driveway. Adjacent to part of the circular driveway will also be a loading bay area within which it is proposed to park a community bus.
The basement car park contains 52 car spaces, as well as some bicycle parking and garbage and service areas.
Due to the slope of the land, the building is mainly three storeys in height but has a section that is effectively two storeys above natural ground level and a section that is four storeys above natural ground level. Mr Biacsi advised it has a maximum building height along King Street of 10 metres and a maximum building height along Greenridge Avenue of 10.7 metres. Mr Montebello submitted the building has an overall maximum height of 11.15 metres. Building setbacks from the east and west side boundaries are a minimum of 3 metres at ground and first floor levels and increases to a minimum of 6 metres at the second floor level. Landscaping is proposed to be incorporated along all of the boundaries. The building comprises a combination of brickwork and rendered cladding with metal deck roofing and pitched tiled roofing.

The review site is contained within a Residential 1 Zone under the Manningham Planning Scheme ('the planning scheme') and there are no overlay controls that affect the site. A permit is required for the development and use of the land for the purpose of a retirement village[1].
The council and the applicant each provided us with summaries, submissions and evidence about the relevant State and local planning policies contained in the planning scheme. We do not intend to repeat these policies verbatim in this decision. Where relevant, we will refer to aspects of the policies as they pertain to the issues in dispute in this case.

The issues raised by the parties are whether the proposal is supported by planning policy; whether the proposal is appropriate having regard to the neighbourhood character and amenity of the adjacent residential properties; and whether the proposal provides adequate car parking and traffic arrangements.
In summary, we find the State and local planning policies support the extent of change contained in this proposal. However, the key challenge for this site is to create a building that is respectful of both the existing character and the amenity of the neighbourhood. We are not persuaded this building has adequately addressed this challenge. Whilst we do accept a different building form and scale can and should be developed on this site, the proposed building form, its setbacks and landscaping do not provide an appropriate interface to the adjoining residential properties and are not respectful of the neighbourhood character. The reasons why we have made this decision are explained below.

The first purpose of the Residential 1 Zone is to implement the relevant State and local planning policies contained in the planning scheme. Ms Moser submitted the Metropolitan Development State Planning Policy and Melbourne 2030 seek to concentrate major change to strategic redevelopment areas such as activity centres and underdeveloped land. In general terms, the State planning policies encourage urban consolidation across metropolitan Melbourne and then seek to provide guidance about which areas are suitable for higher densities of residential development. We agree with the submission of Mr Montebello:

Like many proposals, the permit application gains some support from the policy framework in the scheme. Further, council accepts that like nearly all other municipalities, Manningham has an aging population, the use of the subject land for housing would be beneficial for the municipality and the subject land has good access to public transport - as far as public transport in Manningham goes[2].

Mr Montebello explained the site is located in an area that is expected to experience only incremental change, which he submitted leads to the conclusion that the policy framework in the planning scheme does not demand a higher density of development such as is proposed in this case for this site. We disagree and the reason for this is we disagree with Mr Montebello's interpretation of the local planning policy framework and, instead, agree with the interpretations of Mr Cicero and Mr Biacsi.
The Municipal Strategic Statement (the MSS) changed after the council decided to refuse this application and, as such, there is a new Municipal Strategic Statement and new Local Planning Policies now included in this planning scheme. The MSS acknowledges 22.5% of residents are aged 60 years and over as of 2006, and it is projected by 2031 28% of the population will be aged 60 years or more. The MSS acknowledges the ageing population coupled with the trend for smaller family homes will lead to an imbalance between the housing needs of this population and its available housing stock. The MSS also acknowledges in the future there will be an increase in the number of medium and high density residential developments in the municipality and states that "higher density housing in close proximity to activity centres, major roads and transport routes that address changing demographic needs will be encouraged".
The MSS goes on to break up the municipality into four precincts (1, 2, 3 and 4). It explains the purpose of these precincts:

Precinct 1: Residential areas removed from activity centres and main roads.

Precinct 2: Residential areas surrounding activity centres and along main roads.

Precinct 3: Residential areas with predominant landscape features.

The precincts seek to channel increased housing densities around activity centres and main roads where facilities and services are available. In areas which are removed from these facilities a lower intensity of development is encouraged. A low residential density is also encouraged in areas that have identified environmental or landscape features.

There was no dispute amongst the parties that this site falls within precinct 4 even though it is located on a main road pursuant to the zoning of King Street as a Road Zone[3].
Mr Montebello submitted that when cl 21.05 of the MSS is considered in its entirety, the policy clearly directs higher density developments into precinct 2. As this site is located in precinct 4, the policy anticipates an incremental level of change, which Mr Montebello submitted is not the type of change in building form envisaged by this proposal. He stated the planning scheme is clearly seeking a more tempered design response for this site.
Mr Montebello explained that he had some knowledge and understanding of the background that led to the inclusion of this policy within the MSS and was emphatic in his submissions that this is the way the policy must be interpreted. However, we have obviously read and interpreted this policy afresh without having any involvement in its evolution. We agree with Mr Cicero and Mr Biacsi that the policy does not lead to the conclusion that Mr Montebello has stated. In order to understand how we have formed this view it is necessary to look at the application of each of the precincts and the content within each of the precincts in cl 21.05. We agree with Mr Cicero's explanation of, as he put it, "the hierarchy of development opportunities created by the precincts":
- The "go go area" is precinct 2 that encourages a substantial level of change;
- Precinct 4 comes next with an incremental level of change;
- Precinct 1 comes after that with, again, an incremental level of change; and
- Precinct 3 comes last with a minimal level of change.
The reasons why precinct 4 comes second in the hierarchy of development opportunities are:
- It was explained to us that precinct 1 generally applies to land that is zoned Residential 3, which means the precinct has a maximum building height limit of 9 metres (precinct 4 has no such limitation as it is zoned Residential 1 and there is no maximum building height limit);
- Precinct 1 contains a future development vision that provides guidance as to the preferred future neighbourhood character expected and encouraged (whereas precinct 4 has no future development vision and no preferred future neighbourhood character statement); and
- Precinct 4 merely states that an incremental level of change is "anticipated" in this precinct, as opposed to "encouraged".
Mr Montebello's response to this was to explain that the council did not anticipate much change in precinct 4 given it is a more recent area of development within the municipality. We acknowledge the council's hierarchy of development opportunities created by cl 21.05 may not have intended for precinct 4 to have the development potential that it does, but our finding remains that precinct 4 has a higher level of development opportunity than precincts 1 and 3 and, as such, provides opportunity for a higher density of development and building forms commensurate with such an outcome.
In addition, the precincts form part of the overview of cl 21.05 and we agree with Mr Cicero and Mr Biacsi that it is necessary to consider this clause as a whole. It includes objectives for housing at cl 21.05-2, such as:
- To accommodate Manningham's projected population growth.
- To ensure that housing choice, quality and diversity will be increased to better meet the needs of the local community and reflect demographic changes.
- To ensure that higher density housing is located close to activity centres and along main roads in accordance with relevant strategies.
- To ensure that areas removed from activity centres and main roads as well as areas with predominant landscape features are protected from higher density development.
- To promote affordable and accessible housing to enable residents with changing needs to stay within their local neighbourhood or municipality.
We agree with Mr Cicero's submission that:
- The definition of main roads only applies to precinct 2 and not to the other precincts;
- The housing objectives, strategies and implementation do not cross reference or make any further reference to the definition of main roads contained in precinct 2;
- The main road reference in objective 3 is broad and does not specifically reference precinct 2;
- Objective 3 talks about higher density housing in accordance with relevant strategies, and the strategies and implementation of those strategies are listed below the objectives in cl 21.05-2;
- The strategies encourage the provision of housing stock that responds to the populations needs;
- The strategies promote the consolidation of lots and makes no distinction at this point to any precinct;
- The strategies support incremental change in precinct 4 that respects existing neighbourhood character;
- The application of the Residential 1 Zone to implement the strategies is "to provide opportunity for new development that respects neighbourhood character" which is distinguished from the application of the Residential 3 Zone that does not use words that "provide opportunity for new development"; and
- In exercising discretion, the local planning policy "Dwellings in a Residential 3 Zone" at cl 22.15 is to be used to ensure new development in precinct 1 respects the neighbourhood character and provides for an incremental level of change. There is no similar policy that applies to precinct 4 and the Residential 1 Zone.
Mr Montebello tabled decisions by other divisions of this Tribunal about what incremental change means, but we agree with Mr Cicero these decisions are not particularly helpful because they are based on different local planning policies in different planning schemes. We agree with Mr Cicero's submission that:
1. It would be a sad outcome if simply because the site is located in a precinct where an incremental level of change is proposed that there should not be provided within such a precinct appropriately designed housing for the ageing population within and without that precinct.
2. It would be a misapplication of policy if the outcome were to force people living in areas where an incremental level of change is expected, not to have the opportunity of living in a different style of accommodation to the traditional townhouse that might be said to represent the level of incremental change expected within this precinct.
Having reached the conclusion that the MSS does create an opportunity for a diversity of housing style and choice in the form of new residential developments in precinct 4, it is necessary (pursuant to the policy framework) for that development to demonstrate that it is respectful of the neighbourhood character. In our opinion, this is where this proposal fails.

The State and Local Planning Policy Frameworks together with the purpose of the Residential 1 Zone require that development of this site be respectful of the existing neighbourhood character. The MSS describes precinct 4 as containing some housing built in the 1970's that is single storey, together with housing built in the 1980's and 1990's that is predominantly double storey and in some instances three storeys. It also states there is minimal unit development. As stated earlier in this decision[4], the character of the immediately surrounding neighbourhood to this site is mixed and does include recent medium density development usually comprising double storey dwellings. The topography of the area has a noticeable slope, which means the southern side of King Street is higher than the northern side and the dwellings on the southern side therefore have an elevated presentation to the streetscape. There is a similar characteristic found in Greenridge Avenue as the dwellings on the southern side of this street are also elevated, with many of them well elevated above the footpath and road level.
We agree with Mr Biacsi the review site is something of an anomaly when compared to the pattern of lots and dwelling types that predominate in this particular neighbourhood. The site was described during the hearing as being essentially the equivalent of four typical allotments given its area of over 4,000m2. The site is also an anomaly because it is vacant, largely devoid of any vegetation and has a differing land form to the adjoining properties (in terms of its slope) as previous fill on the site has created elevated sections of the property and two escarpments. We agree with Mr Biacsi that the challenge here is to achieve a design solution that recognises and responds to the particular sensitivities and policy objectives to arrive at an acceptable, and respectful design solution. It must be remembered that respecting the existing character of a neighbourhood does not mean preventing change. Generally, respecting neighbourhood character means that the development should try to fit in to its surrounds[5]. The Guidelines for Higher Density Residential Development state a comprehensive understanding and appreciation of context and the balancing of neighbourhood character and strategic planning objectives must be the starting point for any design.
The urban context objectives of the Guidelines include ensuring buildings respond creatively to their existing context and to agreed aspirations for the future development of the area; and providing a creative design response based on a clear understanding of the urban context and neighbourhood character.

The proposed building form should take into account the opportunities and constraints of the site and its surrounds. We recognise some of the opportunities a design can utilise are:
- It is a large vacant site substantially cleared of vegetation;
- It has a wide frontage of approximately 40 metres;
- It is located adjacent to a Road Zone Category 1;
- It has access to public transport along King Street; and
- It has a significant fall from King Street to Greenridge Avenue.
However, these opportunities must be tempered by the need to respect the existing neighbourhood character which includes large detached houses with large surrounding gardens; as well as the immediate neighbourhood interfaces with the rears of houses and secluded private open space areas that are adjacent to the side boundaries of this site.
The Guidelines for Higher Density Residential Development acknowledge that there may be opportunities for high-rise development adjacent to existing low scale residential development, but suggests that high-rise development needs to be setback from the fine grain residential area. The Guidelines acknowledge the proximity of buildings to each other affects the amenity of spaces inside buildings, the quality of space between buildings, visual and acoustic privacy, and solar access to private and shared open spaces. The challenge is to provide an appropriate separation and "in some areas, side setbacks are an important part of the local character and should be maintained"[6].
Overall, we find the proposed building is too large. It has a significant footprint that extends across approximately 84 metres of the 100 metre length of the site and across approximately 34 metres of the 40 metre width of the site. The building form varies between two and four storeys in height with an average of three storeys in height, which we are of the view is a very large building.
We agree with Mr Biacsi that any taller building element ought to be directed towards the King Street frontage of the site rather than the rear. However, the second (top) floor plan has a width of approximately 28 metres and is setback a minimum of 6 metres from each of the side boundaries. Ms Moser expressed concern about the visual bulk impact of this front section of the building to Nos 29, 1/35 and 2/35 King Street. We share this concern, particularly given at the ground level the setback from the side boundaries is 3 metres and incorporates some seating and pathway areas that (in combination) limit the opportunities for landscaping to assist in minimising the visual bulk.
From a streetscape perspective, we accept that a larger building form can be absorbed within the King Street streetscape due to the slope in the land, the presence of high building forms on the south side of King Street, and a predominance of double storey buildings in the surrounding neighbourhood. However, having said this, the scale and appearance of the building form needs to contribute in a positive manner to the existing garden character that is evident within this neighbourhood. The provision of a circular driveway, porte cochere, loading bay area, additional grasscrete necessary to access the loading area, and a basement accessway all limit the opportunities for landscaping. In addition, we note that the conditions sought by VicRoads seek the exit crossover to be widened to allow emergency vehicles ease of passage, and the ability to split left turn and right turn movements; as well as for the basement exit ramp grade to be altered. We note Mr Harridge's evidence that these requirements were unnecessary but we make no finding on these matters as we have decided to refuse this application primarily because of issues of neighbourhood character and the amenity of the neighbouring properties. However, the fact that these matters have been raised, creates doubt in our minds as to whether there is sufficient opportunities for the creation of an appropriate landscaped front garden that will contribute positively to the King Street streetscape and be respectful of the existing neighbourhood character.
Whilst the slope of the land can be considered an opportunity, we find that this design has not responded appropriately to that opportunity. It appears to us that this design is a response to the desire to get the majority of the apartments all on one level, which is described as the ground floor level on the architect's plans. The sides of the buildings are generally two to three storeys in height and predominantly setback between 3 and approximately 5 metres from the side boundaries. Because of the slope of the land, within the side setbacks there is a constant pathway that steps down and steps down and steps down from the front to the rear of the site. It is broken in spots by the creation of external seating and paving. Mr Patrick has proposed a mix of evergreen and deciduous exotic and native plants. Mr Cicero pointed out the changes made to the amended substituted plans before us have increased the setbacks from the boundaries thus providing greater opportunities for landscaping. However, we agree with Ms Moser that the scale, breadth and height of the building creates a visual bulk that will impose upon the neighbouring properties regardless of the articulation and landscaping proposed.
There is very little access provided from the building to the side landscaped areas other than through stairwells located approximately one third of the way along each of the side elevations from King Street. Mr Patrick pointed out the slope of the land will necessitate a series of retaining walls along the length of the side setback areas, which may be in the order of 2 to 3 metres in height in the middle areas of the site. We appreciate that Mr Patrick has designed a comprehensive landscape concept for the land available to him, but we do not consider that the proposed setbacks in combination with his landscape concept are sufficient to break up and minimise the visual bulk impact of the building as viewed from each of the adjoining properties, their habitable room windows and their secluded rear private open space areas. We find the design has not satisfied the Accommodation Premises Local Planning Policy as it does not avoid excessive visual bulk to adjoining residential properties; it does not avoid unreasonable overlooking from windows of various apartments (particularly in proximity to Greenridge Avenue); it has not minimised off-site impacts by way of deliveries due to the location of the loading area and the access to the kitchen adjacent to the dwelling at 29 King Street; it does not sufficiently graduate the changes in building height between existing buildings along King Street and the proposed building (this concern specifically relates to the second floor level that, in our opinion, would require the deletion of apartments S1, S2 and S5 at a minimum); and the overall width, length and height of the building needs to be reviewed having regard to the streetscape characteristics and the amenity of each of the six adjacent residential properties.

We have already provided a number of observations and findings in regard to the landscape concept of Mr Patrick, but there are a few additional comments that we would like to make. Firstly, we agree with Mr Patrick that a variety of deciduous and evergreen trees and shrubs of native and exotic species is an appropriate response to the existing neighbourhood character. Further, each of the neighbouring properties has the opportunity to undertake some landscaping within their own properties, particularly given there will be some form of development on the review site at some point in the future. For example, whilst the properties on the west side of the site have previously had the benefit of the old pine hedge, with this hedge now removed they have an opportunity to improve the landscaping and screening on their own property which, in the future, could provide some visual protection from a new building on the review site.
In other words, in making the findings that this building is too large and that the setbacks and landscaping are not sufficient to soften the visual bulk impact upon the neighbouring properties, we do not wish to leave the residents with the impression that it is necessary for a new building on this site to be invisible. It is reasonable for there to be a large new building, possibly containing apartments, on this site given our findings in regards to the planning policy framework. Given the size of the site and the size of the adjoining properties and their private open space areas, we also accept that there will inevitably be some visibility of the building on the review site from some of these neighbouring properties. However, the level of the visibility and the visual bulk impact in this case is unacceptable. Each design must be considered on its merits and it is important that the design responds to the opportunities and constraints of the site and its surrounds and provides an appropriate balance. In this case, we are not satisfied that the appropriate balance has been struck and we find this design does not respect the character or the amenity of the neighbourhood.

The residents all expressed concern about the adequacy of the car parking provided in the basement given the difficulty associated with visitors being able to park on the shoulder of King Street. This difficulty arises because of the open drains across which Mr Harridge agreed car parking is difficult. The residents also expressed concern about the adequacy of the access for residents and visitors given the footpaths of King Street are generally gravel but walkable and visitors may need to park some distance from the site such as in Ashcroft Avenue.
The council raised no parking or traffic concerns in its grounds of refusal and Mr Montebello advised the council's project management traffic officer expressed no concerns about the provision of car parking. We note the Accommodation Premises Local Planning Policy seeks the provision of one car space per unit and one visitor car space per five units for a retirement village, which equates to a total provision of 56 spaces (47 resident spaces and 9 visitor spaces). This proposal provides a total of 52 on site car spaces, therefore there is a shortfall of four car spaces based on the local policy. Mr Harridge gave evidence the resident peak parking demand for retirement villages is likely to be lower than a typical apartment building and provided empirical assessments of other retirement villages in Vermont, Nunawading, Canterbury and Grovedale. These examples demonstrate a peak parking demand of 0.78 spaces per apartment, which means the proposed 47 apartments are expected to generate a peak resident parking demand of 37 spaces. Mr Harridge also gave evidence nine visitor spaces should be provided at the rate of one space per five apartments and four parking spaces should be allocated to the staff expected to be on site at any one time. This culminates in a peak parking demand of 50 spaces, hence Mr Harridge stated the provision of 52 spaces will readily accommodate the peak parking demand of the proposal.
Whilst Mr Harridge acknowledged that there may be occasions when there are higher parking demands, we are satisfied that the empirical analysis of a peak resident parking demand of 0.78 car spaces should be adopted. We also agree that it is important an appropriate level of visitor parking and staff parking be provided. We agree with Mr Harridge's evidence about the number of car spaces to be allocated to visitors and staff, which is in accordance with the Accommodation Premises Local Planning Policy. Whilst there may be occasions where there is a higher parking demand, particularly by visitors, we do not consider it necessary or appropriate to require a development to provide the maximum number of car spaces that may ever be anticipated. Rather, a reasonable level of parking that can accommodate the typical peak parking demand is appropriate. To use the example of a large shopping centre, it provides a reasonable level of parking to accommodate its typical peak parking demand rather than providing excessive car parking in order to cater for higher parking demands such as at Christmas. We agree with Mr Harridge's analysis of the parking provision, and this is not a reason why we have determined to refuse this application.
The residents also expressed concern about traffic and safety in entering and exiting the site. We are confident that an appropriate driveway arrangement with adequate sight lines can be incorporated into the King Street frontage and, therefore, do not share the residents concern.
We have already expressed some concern about the conditions sought by VicRoads and the changes that may be required to the frontage of the property. We are also concerned about the use of the circular driveway for loading and unloading, particularly if it will necessitate any further increase in height of the porte cochere element. We acknowledge that there are bus services available within reasonable walking distance of this site, but also acknowledge the submissions by the council and the residents about the adequacy of the public transport. Mr Harridge's advice that a small bus (approximately 5.4 metres long) will provide a shuttle service for residents to shops and events is a good outcome. We were advised it will be stored in the loading bay area, which creates a management issue in regard to the storage of the bus and the use of the loading bay for deliveries. In addition, we have already expressed concern about the amenity impact of the loading bay adjacent to 29 King Street. In our view, these are details that have not been well resolved as part of this proposal and should be further considered as part of any future planning application for a retirement village on this site.

We disagree with the submissions made by the council about the interpretation of the Local Planning Policy Framework regarding the development opportunities available to this precinct (precinct 4). Whilst it may not have been the intention of the council for precinct 4 to have the level of opportunity which we have articulated, we find the hierarchy of the precincts does provide opportunities for new development in precinct 4 and it is the second highest precinct in the hierarcy. As such, this unusual site (because of its large size and existing vacant form) creates a significant opportunity to provide a different form of residential housing to that which exists in the surrounding neighbourhood (generally detached houses). However, a different form of residential development must still be respectful of the existing neighbourhood character. This means the building needs to fit into the neighbourhood. Given the size of this site, and the slope of the land, we are of the view a large building can be contemplated for this site. This proposal fails because the building is too large with inadequate setbacks and landscaping opportunities to soften the visual bulk impact upon the streetscapes and the six adjoining residential properties. In addition, the potential for overlooking needs to be considered in greater detail to limit views into existing secluded private open space and habitable room windows on the adjoining residential properties. We hope that our findings on the various issues raised by the council and the residents will assist all parties in designing, and in considering the planning merits of any new building for this site.

[1] The land use was a matter that was discussed and clarified during the course of the hearing. Mr Montebello had described the proposal as being for accommodation which is correct having regard for the Table of Uses in the Residential 1 Zone however nested under the land use term accommodation is the land use term retirement village, which Mr Cicero and Mr Biacsi advised is what is sought in this case. Accordingly, we have described and considered this proposal as a retirement village pursuant to the definition in the planning scheme - Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

[2] Extract from paragraph 60 of Mr Montebello's written submission.

[3] The meaning of the term "main road" is different in the policy to the zoning of the land. If the King Street was designated a main road in the policy the site would have been within precinct 2.

[5] For a further explanation on respecting neighbourhood character, refer to the "Understanding Neighbourhood Character" General Practice Note, Department of Planning and Community Development.

[6] Refer to page 23 of the Guidelines for Higher Density Residential Development.

Central Estate Properties Pty Ltd v Manningham CC [2009] VCAT 867

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Central Estate Properties Pty Ltd v Manningham CC [2009] VCAT 867 (6 May 2009)

Parties