appellant. The responsible authority’s refusal was set aside. A planning permit was granted for the seven-storey mixed-use building, subject to the endorsed plans and conditions in Appendix A. The conditions...
Key principles
In reviewing the refusal, the Tribunal assessed the proposal against the Glen Eira Planning Scheme as a whole, including the Commercial 1 Zone, the activity-centre and...
For this site in the Caulfield Park Neighbourhood Centre, a seven-storey mixed-use building was consistent with the planning policy framework encouraging increased housing and...
The proposal’s eastern façade required modification to address visual bulk and amenity: the Tribunal required a minimum three-metre setback at the southeast part of Levels 4 to...
The Tribunal found the development would not detract from the heritage significance of St Aloysius Church, and that the anticipated traffic and parking effects were acceptable...
Issues before the court
Whether the seven-storey building’s height and massing were consistent with the planning policy and site context.
Whether the proposal would adversely affect the heritage significance of St Aloysius Church.
Plain English Summary
VCAT allowed the review and granted a permit for a seven-storey building with shops at ground level and 43 apartments above. It accepted that this activity centre was an appropriate place for substantial housing growth and that the church’s heritage significance would not be harmed. The permit was conditional: the design had to include a setback at the southern end, enclosed and ventilated corridors, measures protecting bedroom privacy, and four visitor car spaces. The Tribunal’s decision was based on the particular site, policy framework and evidence before it.
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Deep Dive
2,358 words · generated 28/09/2026
What happened
Chocolate Tower Pty Ltd applied to Glen Eira City Council for permission to develop 67-77 Hawthorn Road, Caulfield North. The site was within the Caulfield Park neighbourhood activity centre and the Commercial 1 Zone. It had a 23-metre frontage, was about 50 metres deep, and covered 1,054 square metres. Existing uses included four attached single-storey shops and a squash court at the rear. Vehicle access was available from a three-metre-wide right-of-way.
Whether traffic and parking effects were acceptable.
Whether the proposal provided acceptable amenity for neighbours and future residents.
Cited legislation
2 cited instruments linked from this judgment.
The original application proposed an eight-storey mixed-use building with retail tenancies and 51 dwellings. Council refused the application in November 2016. The refusal grounds raised a wide range of concerns, including height and massing, neighbourhood character, equitable development opportunities, traffic and parking, internal amenity, and effects on nearby St Aloysius Church, which is within a Heritage Overlay.
The applicant later circulated amended plans. The design was reduced to seven storeys and 43 dwellings, with 367 square metres of retail floor area and 53 car spaces. The proposed building height was 22.9 metres, with rooftop plant adding 1.1 metres. The review was heard on 8 and 9 May 2017. The Tribunal inspected the site and surrounding area on 11 May 2017.
The Tribunal found the amended proposal largely acceptable but identified design changes it considered necessary. Its final order set aside Council’s refusal and granted a permit subject to conditions. The decision plans were Metaxas Architects’ Revision C plans, dated 29 March 2017. The conditions included a three-metre setback for Levels 4 to 7 at the eastern end of the southern boundary; enclosed south-side corridors with suitable glazing and ventilation; measures to address bedroom privacy; six cubic metres of storage for each dwelling; and four residential visitor parking spaces.
The order also corrected an earlier description of land ownership under section 119 of the Victorian Civil and Administrative Tribunal Act 1998. The Tribunal was satisfied that a clerical mistake had occurred in its 29 May 2017 order.
Why the court decided this way
The Tribunal’s central planning judgment was that the policy setting supported substantial housing and mixed-use development in this location. It identified the Commercial 1 Zone purposes as encouraging vibrant commercial centres and residential densities complementary to the centre’s role and scale. It also relied on state and local policy directions supporting increased housing in and near activity centres, higher-density housing, and the concentration of major uses in accessible locations. Its account of the local hierarchy of centres drew on Rosenwald v Glen Eira CC [2015] VCAT 204, a prior VCAT decision that it discussed as a source for describing the municipality’s housing-diversity hierarchy.
The Tribunal accepted that seven storeys would be notably taller than the prevailing one- and two-storey development. It did not treat existing low-rise form as determinative, however. It observed that taller buildings were already present or approved in the centre, including five- and six-storey development, and that no specific height control in a zone schedule, Design and Development Overlay or policy governed the site. The Tribunal also considered that policy directed significant change to higher-order centres and that the site’s size and configuration could accommodate taller development. In its assessment, the height and articulation were generally consistent with the planning policy framework.
That acceptance did not extend to every part of the design. The Tribunal was concerned about the eastern façade’s visual bulk, particularly because buildings on the adjoining sites to the north and south might be built close to it. It accepted that the northeast corner should be built to the boundary, taking account of the configuration of the adjoining northern site. But it questioned building to the southeast corner boundary. It reasoned that a gap could improve solar access for possible north-facing apartments on the southern site, provide visual separation, and distinguish buildings on separate sites. The permit therefore required Levels 4 to 7 to be set back at least three metres from the eastern end of the southern boundary.
Heritage was a separate question from general built form. The church was to the east, across the right-of-way and separated from the review site by a presbytery. The Tribunal accepted that the building would be visible in some views, including from parts of Balaclava Road and across the playground behind the church. It found, however, that the church’s principal views would not be obstructed and that the new building would appear as a separated and recessive background. The Tribunal also considered the eastern elevation’s muted design, local heritage significance, and vegetation that would screen some of the building. It concluded that the development would not detract from the church’s heritage significance.
The Tribunal clarified the reach of local heritage controls. It agreed with the heritage witness that clause 22.01 could only apply to development within a Heritage Overlay, and that an overlay could not control land beyond its boundary. That did not remove the need to consider context: the Tribunal said clause 15.01 still required the proposal to respond to its context, including the church.
Traffic and parking produced a qualified acceptance. The traffic evidence forecast 22 vehicle movements in the right-of-way during the morning peak hour, with a similar total in the evening. The Tribunal accepted that the low volumes, low speeds and passing areas would allow vehicles to use the three-metre-wide right-of-way with minimal inconvenience. It also noted that Council’s traffic engineers did not oppose the proposal on traffic grounds.
The parking assessment was more specific. The Tribunal recorded a requirement of 66 spaces and a proposal for 53. It accepted that customer parking for the shops could be addressed through existing on-street parking, but disagreed with leaving residential visitors wholly to find parking in local streets. It considered that providing excess spaces for residents while visitors relied on already congested streets would not be consistent with clause 52.06. Four visitor spaces were therefore required in the basement.
Internal amenity was acceptable overall but needed targeted changes. The Tribunal generally accepted the dwelling sizes, outlook, access to daylight and ventilation, and the relationship to services and transport. It agreed that bedrooms facing the access corridors needed greater privacy. It also considered the open Breezeway exposed residents and visitors to hot and cold weather and required the south-side corridors to be enclosed, with glazing for daylight and operable windows or louvres for ventilation. The Tribunal considered the proposed bedroom daylight against the then available measurable standard in clause 58.07-3, while expressly noting that the clause did not apply to this application.
Before and after state of the law
This decision applied the planning scheme and statutory provisions as they stood for this permit review. It did not announce a new general rule about permissible building heights, nor did it establish that seven-storey development is acceptable in every neighbourhood activity centre. Its height finding depended on the site’s position in the local hierarchy, the planning policies encouraging change in this centre, the emerging built form, the lack of a specific height control identified by the Tribunal, and the design of this particular proposal.
The reasons also illustrate that a Heritage Overlay’s direct planning control was treated as bounded by the overlay’s mapped area. The Tribunal said clause 22.01 and the overlay did not apply to the proposal because the review site lay outside the overlay. It nevertheless assessed the nearby church under the broader requirement to respond to context and the heritage policies it identified. This is a distinction in the Tribunal’s reasoning, not a conclusion that nearby heritage places are irrelevant to development assessment.
The decision’s treatment of parking shows a case-specific balance between the parking requirements and the proposed reduction. The Tribunal accepted a reduction but required four residential visitor spaces. It did not state a general numerical rule for visitor parking in mixed-use developments. Likewise, its conclusions on traffic relied on the expert evidence about this particular right-of-way, forecast vehicle movements and passing areas.
The judgment does not set out the subsequent history of the planning scheme, later statutory amendments, or later decisions applying its reasoning. A comparison of the law before and after the decision, beyond the provisions and policy framework described in the reasons, cannot be determined from this judgment alone.
Key passages with plain-English translation
In the height and massing assessment, the Tribunal said: “We are satisfied that a seven storey mixed use building complies with the entirety of the planning policy framework” (height and massing section, [1]). In plain English, the Tribunal considered the proposal’s scale consistent with the policies applying to this activity centre, even though it exceeded the surrounding prevailing height.
The Tribunal’s acceptance was qualified. It said: “We are concerned with the visual bulk of the eastern facade” (height and massing section, [16]). This identifies a design concern rather than a rejection of the proposal as a whole. The Tribunal addressed it through the setback condition for the southeast part of the building.
On heritage, the Tribunal concluded: “We are satisfied that the development would not detract from the heritage significance of the church” (heritage section, [13]). The reasoning was that the building would be visible in some views but would remain separated and recessive, would not obscure important views, and would be partly screened by vegetation.
On parking, the Tribunal explained: “We do not regard it as consistent with clause 52.06 to provide excess spaces for residents and at the same time require visitors to find spaces in already congested local streets” (traffic and parking section, [14]). In plain English, it considered the way spaces were allocated as well as the total number. It required four visitor spaces rather than permitting the visitor demand to fall entirely on local streets.
On internal amenity, the Tribunal said: “We think the privacy of the bedroom windows need to be improved” (amenity section, [10]). The permit condition required details of windows and screening for bedrooms facing the access corridors. The decision did not require one single design method; it identified options including high-level windows or screening.
These paragraph references follow the numbering shown within the relevant sections of the supplied reasons. The numbers restart under different headings, so the section label is included to identify each passage.
What fact patterns trigger this precedent
The decision is most relevant as a factual comparison where a permit proposal involves substantial housing in a commercial activity centre and the planning scheme encourages higher-density development there. A lawyer or planner comparing another proposal would need to examine the centre’s place in the relevant local hierarchy, the applicable zone and policies, any specific height controls, and the site’s existing and emerging built form. The Tribunal’s reasoning does not make the site’s seven-storey height a universal benchmark.
It may also be relevant where a proposed building is near, but outside, a Heritage Overlay. The reasons distinguish the direct application of the overlay and local heritage policy from the broader planning obligation to respond to context. The particular assessment turned on the church’s distance and separation, the views that would remain, the proposal’s muted eastern elevation, and vegetation. Different sightlines, heritage significance or physical relationships could materially alter the assessment.
The decision may assist in comparing proposals next to narrow rights-of-way. Here, the Tribunal accepted traffic evidence about low peak volumes, passing areas and the expected use of the access. The result should not be detached from that evidence: a different right-of-way width, traffic generation, access arrangement or absence of passing areas would present a different factual question.
Finally, the decision is relevant to proposals where a design is broadly acceptable but particular amenity effects can be addressed through permit conditions. The identified matters were specific: the southern boundary interface, exposure of corridors to weather, bedroom privacy and visitor parking. The Tribunal’s reasoning demonstrates how it resolved those issues on these plans and evidence, not that the same conditions are invariably appropriate.
How later courts have treated it
The supplied judgment records one earlier VCAT decision, Rosenwald v Glen Eira CC [2015] VCAT 204. The Tribunal discussed Rosenwald as a description of Glen Eira’s hierarchy of areas for increased housing density. It did not identify or discuss any later court or tribunal decision treating Chocolate Tower as applied, followed, distinguished, or otherwise considered.
Accordingly, later treatment cannot be established from the supplied source. The reasons also do not state that the decision was appealed or reviewed. Any account of subsequent treatment would require sources beyond this judgment, which are not provided here.
Still-open questions
The decision leaves open how its policy analysis would apply where a neighbourhood activity centre has a different role, a more sensitive existing context, or specific height controls. It does not set a preferred height for the Caulfield Park centre; it says there was no specific guidance on preferred height in the provisions identified and evaluates this proposal on its circumstances.
The Tribunal relied on the anticipated redevelopment of neighbouring land when considering interfaces and equitable development opportunities. It acknowledged that the southern owner could still develop to its northeast boundary, while explaining why that choice might limit solar access to north-facing apartments. How such anticipated development should be treated where redevelopment is less likely, or where adjoining land has different constraints, is not answered by these reasons.
The Tribunal accepted the expert assessment that traffic conflicts in the right-of-way would be limited and that future setbacks might eventually widen it. The judgment does not establish how much weight should be given to a possible future widening in another case, or what evidence would be needed where the timing or feasibility of adjoining redevelopment is uncertain.
The parking reasons do not prescribe a standard number of visitor spaces for other projects. The four-space requirement was linked to this proposal, the estimated visitor parking use during business hours, the proposed resident allocation, and the local parking conditions described in the evidence. The decision also does not resolve how visitor parking should be assessed where public transport access, on-street supply, dwelling mix or local parking controls differ.
This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on it, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (47 paragraphs)
[1]
The applicant has circulated amended plans to address the concerns of the responsible authority, Caulfield Park Apartments Pty Ltd and Eskay Constructions Pty Ltd. The amended plans have been circulated in accordance with Practice Note PNP9.
The responsible authority and the respondents had no objection to the substitution of the amended plans and we ordered at the Hearing the plans prepared by Metaxas Architects, described as Revision C and dated 29 March 2017 be the decision plans for this review.
We grant Mr Chester of Caulfield Park Apartments Pty Ltd leave to withdraw as a party to the review.
By order dated 29 May 2017, the Tribunal provided the opportunity for the parties to comment on its intention to require part of the proposed development to be setback from the southeast boundary.
By letter dated 2 June 2017, the permit applicant drew the Tribunal's attention to what they suggested was an error within the Tribunal's order, and submitted that the order should be corrected. It suggested the Tribunal had incorrectly described the properties owned by the parties and by Hela Slamowicz, who had submitted a statement of grounds but was not a party.
a clerical mistake;
2. an error arising from an accidental slip or omission;
[3]
a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
[4]
a defect of form.
We are satisfied that a mistake or error has occurred here, comprising a clerical mistake, and find it appropriate to authorise a correction of the order.
[5]
Does the development respond to the site features and built form context?
[6]
We agree with the parties that the review site has no features that constrain its redevelopment. It is a commercial site that abuts a main road. Its features that enable redevelopment include its generous width and depth that are unusual in a commercial centre that largely comprises shops with narrow widths.
It has vehicle access at its rear that connects to a local street, and so further development does not require approval from VicRoads. The existing buildings have no heritage value and there is no vegetation of heritage or landscape value. The slope of the land is a modest rise of up to 2.21 metres from Hawthorn Road to the right-of-way at the rear of the site that does not constrain design.
The review site is within an established commercial centre with prevailing building heights of one to two storeys. To the south are three single storey shops. One and two storey shops and commercial buildings are located on the land to north of Balaclava Road. The commercial buildings on the west side of Hawthorn Road are also predominantly one and two storeys. The existing buildings on the site are single storey, while the squash courts to the rear are equal to two storey buildings.
Taller buildings are evident in the centre. There is a three storey apartment building adjoining to the north of the review site and two buildings of three and four storey heights are near the intersection of Hawthorn Road and Balaclava Road.
The centre is undergoing change. A six storey mixed use building has been constructed at no.144 Hawthorn Road comprising a three storey street wall and three storeys of dwellings above. A five storey mixed use building has been approved at no.97-103 Hawthorn Road, four properties to the south of the review site.
The interfaces to the north and south are relatively insensitive. Eskay Constructions Pty Ltd the owners of the land to the north (no.219 Balaclava Road) and Hela Slamowicz, owner of the land to the south, have advised they intend to redevelop their land. Hence the primary matter to be assessed is the relationship with prospective development rather than the existing conditions of these sites.
The east interface also has relatively low sensitivity. A church and a primary school are to the east of the right-of-way. The church building is within a Heritage Overlay, but is separated from the review site by a presbytery that is not affected by the overlay. The nearest dwellings to the site (apart from the abutting apartment building) are on the east side of Catherine Street, some 70 metres away.
[7]
Does the building's height and massing respond to the planning policy context?
[8]
The responsible authority says the building's height, bulk and massing would be excessive for a lower level centre characterised by low rise, fine grain built form. It says the building would be dominant, fails to positively contribute to the scale and character of the activity centre, and would not be in keeping with the preferred character of the centre.
The responsible authority says that while the amended plans show the building's articulation and presentation to Hawthorn Road and to the side boundaries has been much improved from the application plans, its seven storey height is still too tall and out of place in the context of this low rise centre. It would interrupt the rhythm and pattern of building heights and be significantly taller than development that is possible on other more constrained sites.
The applicant says the centre is a preferred location for taller mixed use buildings and the Caulfield North activity centre is one of the higher level activity centres where intensive development is encouraged. He says a seven storey building makes good use of a scarce development site and it fits the emerging character.
We generally agree with the permit applicant. We think that a development of this height and massing is generally consistent with the planning policy framework we set out below.
The purposes of the Commercial 1 Zone encourage the development of vibrant commercial centres for a range of uses and to provide for residential densities complementary to the role and scale of the commercial centre.
We think that Plan Melbourne 2017-2050 referenced in clause 9 identifies activity centres as preferred locations for intensive development compatible with the role and character of the centre. This is supported by clauses 11.03, 11.06, and 16.01 that include the following policy directives that we think are relevant to this review:
Include the aspirational target of accommodating 75 percent of future dwellings (more than one million new dwellings in Melbourne and 220,000 in the inner southeast suburbs) in established suburbs, particularly in and near activity centres.
Build up activity centres as a focus for high quality development and living.
Encourage a concentration of major uses including housing into activity centres that are highly accessible.
[9]
Respond to their context, including ensuring the density and massing of a development responds to the location, role and neighbourhood character of the centre
[10]
Ensure that the siting and design of new residential development takes account of its interfaces with existing residential development on adjoining sites
[11]
Ensure the design of new residential development is sensitive to and respectful of the scale of existing residential development on adjoining sites.
[12]
Further policies guide the design of new development in the commercial parts of a neighbourhood activity centre.
We observe that the housing diversity area where further development is encouraged includes Hawthorn Road, Balaclava Road and the adjacent St Aloysius Church and primary school and Catherine Street to the east.
[13]
We are satisfied that a seven storey mixed use building complies with the entirety of the planning policy framework for the following reasons.
A tall mixed use building is consistent with policy that clearly encourages significant change in a centre at the top of the hierarchy of centres in Glen Eira. It is one of the places tasked by planning policy to do the "heavy lifting" to meet the broad planning aspirations of Plan Melbourne.
While a seven storey building would be notably taller than the prevailing character, its height fits comfortably with the scale of development in other higher order centres in Glen Eira - that being up to 20 storeys in Caulfield, 12-15 storeys in Glenhuntly and Elsternwick, and five to seven storeys in Bentleigh and Carnegie.
We give little weight to the recently approved planning scheme amendments that limit the heights of development in parts of Bentleigh and Carnegie urban villages. They are not applicable to this site or activity centre. We understand these amendments impose height controls for a limited time until an urban design framework is completed that provides a coherent and reasoned basis for height and other development controls.
We think that while Amendment VC110 has removed the limit on the number of dwellings in the Neighbourhood Residential Zone, and land in that zone may contribute some additional dwelling stock, much of residential zoned land in Glen Eira remains in areas designated by policy for minimal change, and such areas may be subject to planning controls or policy that may continue to limit the number of new dwellings that can be developed. Hence we give weight to the need to efficiently use the limited number of areas and sites in Glen Eira where change is directly encouraged by policy.
We are not persuaded that the building would be unduly tall in this centre because:
There is no specific guidance in the scheme in a schedule to the zone, a DDO or a policy regarding the preferred height.
There are buildings of six, five and four storeys in the centre, hence this building with its recessed top storey will not appear to be out of scale with the emerging built form.
There is good prospect that the adjoining sites to the north and south will also be developed for buildings of similar height, hence in time it would be one of a cluster of tall buildings rather than an anomaly.
[14]
Would the development adversely impact the heritage value of St Aloysius Church?
[15]
St Aloysius Church and primary school is located on the east side of the right-of-way at the rear of the review site. The church building that is near the corner of Balaclava Road and Catherine Street is included in Heritage Overlay HO77. The presbytery that is between the church and the review site, a grotto for quiet meditation at the rear of the church, three prominent trees adjacent to Balaclava Road and the school buildings and grounds are not included in the Heritage Overlay.
The cruciform plan of the church is constructed of red brick and has a hipped roof. It has a prominent bell tower at its northern end. The building was constructed in 1924. The Statement of Significance for the church is:
[16]
St Aloysius is architecturally important as an exceptionally imposing red brick church in the early English Gothic style from the inter-war period. Its significance, however, is compromised by the recent removal of its Pyrmont stone spire. It is locally important as a focus of Catholic worship in Caulfield.
[17]
The responsible authority says its heritage adviser is concerned the building would be three (now two) storeys higher than the church and would be unduly dominant in views of and around the church. Mr O'Leary says the building would overwhelm the church.
It was Mr Raworth's expert opinion that the proposed building would not adversely affect the heritage value of the church. He says that while the building would be somewhat taller than the church, it would not obscure any important views of the church. He says the church would continue to be the dominant building in eastward and westward views along Balaclava Road and from Catherine Street.
He accepts the building will be seen in views from the northeast (north side of Balaclava Road) and northwest corner of Balaclava Road and Hawthorn Road, but says it would be sufficiently separated to be recessive. It would appear as a backdrop to the church. He says in time this building is likely to be one of several taller buildings fronting Hawthorn Road. Together these buildings would comprise a muted background to the church. He says this is acceptable in an area where change is encouraged by policy, and the church is not so significant to require a background without built form.
Clause 15.01 requires a development to respond to the feature and context of the site including its cultural context. Clause 15.03 and the purposes of clause 43.01 encourage places of heritage significance to be conserved and enhanced and aim to ensure that development does not adversely affect the significance of the heritage place.
Clause 22.01 includes a policy that heritage places listed in the Glen Eira Management Plan and the Addendum to that Plan be taken into consideration in the assessment of planning applications that may impact their heritage value. A further policy in clause 22.01 is that development that is in close proximity to a heritage place should complement the character and heritage value of the heritage place.
We agree with Mr Raworth that clause 22.01 policy can only apply to a development that is within a heritage overlay. An overlay cannot purport to control the development of land beyond its boundaries. Hence the overlay and the local policy is not applicable to this proposal. Nevertheless the development is required by clause 15.01 to demonstrate that it is responsive to its context including St Aloysius Church.
[18]
Would the development generate unacceptable traffic and parking outcomes?
[19]
The development would comprise retail tenancies (floor area of 367 square metres) and 43 dwellings. Access would be via the three metre wide right-of-way that connects to Cromwell Street.
The dwellings would generate 174 vehicle trips per day (17 in each peak hour) and the retail tenancies would generate 29 trips per peak hour, mainly passing traffic on Hawthorn Road. Most of the residential traffic would leave in the morning and return in the evening, with the retail traffic making the opposite movements.
Mr Fairlie estimates the development would generate in the right-of-way 10 arriving and 12 departing trips in the morning peak hour (22 trips in total) and the reverse in the evening.
It was his expert opinion that while the three metre wide right-of-way can only carry one way traffic, it can accommodate the additional 22 trips, even including the approved development at no.97-103 Hawthorn Road to the site's south.
He accepts that there is a high likelihood that vehicles arriving and leaving in the peak periods may seek to travel along the right-of-way in opposite directions at the same time. He thought this would occur every two or three days. He thought the level of risk and inconvenience would be low because the traffic levels are low (a car every two minutes), there are two passing areas along the right-of-way, and residents would leave before the retail staff would arrive in the morning.
In time he thinks that it is likely that the ground floors of all future development will be set back at least three metres to eventually create a six metre wide right-of-way that would readily accommodate the greater traffic volumes.
We agree with his assessment. We note that Council's traffic engineers did not oppose the development on traffic grounds. We are persuaded that the low number and speed of vehicle movements, and the opportunities for a vehicle to pull over and allow another vehicle to pass would enable traffic to move along the right-of-way with minimal inconvenience.
We agree with him that the problem would be short term and will be remedied as new developments provide a ground level setback, as is occurring in other rights-of-way in activity centres in Glen Eira.
The development is required to provide 66 car parking spaces, comprising 42 spaces for the residents of the dwelling, eight spaces for visitors to the dwelling and 14 spaces for staff and customers of the retail tenancies.
[20]
Would the development provide acceptable amenity for its neighbours and future residents?
[21]
The grounds of refusal include concerns with the amenity that would be provided for future residents. The responsible authority advised that the amended plans address most of its concerns including provision of private open space, waste chutes, corridor widths and the location of the lift core.
It says it is generally satisfied with the amenity that would be provided to future residents. It raised two concerns with the amenity of the dwellings. Firstly, the daylight to the bedrooms in the northeast corner of the building (Apartments 208, 308, 406, 506). These bedrooms rely on saddleback windows facing a lightcourt. It says the rooms would have poor daylight because the windows would be small and they would be several metres from the usable part of the bedroom. The daylight could be further compromised if no.219 Balaclava Road is developed with a building of similar height and built to the boundaries shared with the review site. The responsible authority accepts daylight could be improved by reducing the length of a two metre long wingwall on the boundary.
Secondly, the bedroom windows of the central north-south dwellings would face the walkway, and would be subject to overlooking from future dwellings on the land to the south and from people passing by on the walkway.
The applicant and the experts say future residents of the dwellings would enjoy acceptable amenity, which would be further augmented by their very convenient proximity to cafes, shops, health facilities, trams and Caulfield Park.
We are satisfied that the development would not adversely affect the amenity of adjoining properties. The shadows cast over the playground to the east do not appear to have that much impact as they cover only a small part of that space and at times in the afternoon when it is unlikely to be intensively used.
We have no difficulty with dwellings overlooking the school grounds. We think casual surveillance of the play areas enhances public safety and a sense of community between the school and residents. We think that unwanted overlooking that appears to be threatening or intrusive would be likely to be rare and is best addressed by Victoria Police rather than assuming that all residents would behave inappropriately .
The setbacks to the side boundaries are generous and if replicated in developments on the sites to the north and south, would result in acceptable interfaces in terms of privacy and separation of built form. We conclude there are no external amenity issues that are fatal to this proposal.
[22]
For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.
[23]
Use of land with a width greater than two metres at ground level for accommodation in a Commercial 1 Zone, construction of a seven storey building in a Commercial 1 Zone, a reduction in the associated car parking requirements (clause 52.06-5) and a waiver of the loading bay requirements (clause 52.07) in accordance with the endorsed plans
[24]
Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must generally accord with the plans considered by VCAT identified as TP2.01-TP4.03 Rev C prepared by Metaxas and dated 29/03/2017 but modified to show:
[25]
Levels 4, 5, 6 and 7 set back a minimum of three metres from the east end of the southern boundary, and such consequential changes to the internal layout of the floor plans as required.
Each dwelling provided with six cubic metres of storage space.
[26]
A schedule of construction materials, external finishes and colours (incorporating paint samples).
[27]
All corridors on the south side of the building that provide access to the dwellings enclosed, including adequate glazing for daylight and openable windows or louvres for ventilation.
Details of windows and screening to limit overlooking of all the bedrooms facing the access corridors.
[28]
Car parking provided at the following rates:
1 and 2 bedroom dwellings - 1 car space per dwelling.
3 or more bedroom dwellings - 2 car spaces per dwelling.
Visitors (residential) - 4 spaces.
Office/Retail - 5 car spaces
[29]
When approved, the plans will be endorsed and will then form part of this Permit.
[30]
The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority. Note: This does not obviate the need for a permit where one is required.
[31]
The proposed works must not cause any damage to the existing street tree. Root pruning of this tree must be carried out to the satisfaction of the Responsible Authority prior to the construction of the crossover/works.
[32]
Prior to the commencement of the buildings and works (including demolition), a tree protection fence must be erected around the street tree at a radius of 1.5 metres from the base of the trunk to define a 'tree protection zone'. Temporary fencing is to be used as per AS 4870-2009 section 4.3. This fence must be constructed of star pickets and chain mesh (or similar) to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until the construction within the tree protection zone is required. The tree protection zone for that component of the development not required for construction must remain fenced until construction is complete. No vehicular or pedestrian access, trenching or soil excavation is to occur within the tree protection zone. No storage or dumping of tools, equipment or waste is to occur within the tree protection zone.
[33]
The ground surface of the tree protection zone must be covered by a protective 100mm deep layer of mulch prior to the development commencing and be watered regularly to the satisfaction of the Responsible Authority.
[34]
Above ground canopy TPZ (Tree Protection Zone) to be adopted. No works, structures or machinery will come within 1m of the trees crown/canopy as per AS 4870-2009 section 3.3.6. Tree Protection Zone (TPZ) fencing must be adopted to protect the street tree's trunk. Set at edge of TPZ on all sides (Finishing at paved surfaces). Temporary fencing to be used as per AS 4870-2009 section 4.3. Hand excavate any area within 1.5m of the Tree Protection Zone (TPZ). If roots over 40mm are found, Park Services are to be notified and further inspections will be carried out. Ground protection is to be used if temporary access for machinery is required within the Tree Protection Zone (TPZ). Strapped rumble boards are to be used within TPZ to limit ground compaction as per AS 4870-2009 section 4.5.3.
[35]
1 and 2 bedroom dwellings - 1 car space per dwelling.
2. 3 or more bedroom dwellings - 2 car spaces per dwelling.
[36]
Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a) constructed;
(b) properly formed to such levels that they can be used in accordance with the plans;
(c) surfaced with an all-weather sealcoat;
(d) drained;
(e) line-marked to indicate each car space and all access lanes;
(f) clearly marked to show the direction of traffic along the access lanes and driveways;
[37]
to the satisfaction of the Responsible Authority. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
[38]
Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority.
[39]
Prior to the commencement of any site works including demolition and excavation, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works including demolition and excavation are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:
(a) Delivery and unloading points and expected frequency;
(b) A liaison officer for contact by owners / residents and the Responsible Authority in the event of relevant queries or problems experienced;
(c) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
(d) Any requirements outlined within this permit as required by the relevant referral authorities;
(e) Hours for construction activity in accordance with any other condition of this permit;
(f) Measures to control noise, dust, water and sediment laden runoff;
(g) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
(h) Any construction lighting to be baffled to minimise intrusion on adjoining lots.
[40]
Prior to the occupation of the approved development, the owner/permit holder must prepare and have approved in writing by the Responsible Authority a Waste Management Plan (WMP) for the site with respect to the collection and disposal of waste and recyclables associated with the proposed uses on the site to the satisfaction of the Responsible Authority. The WMP must provide be generally in accordance with the Waste Tech Plan dated 29 June 2016 and provide details for the following:
(a) The collection of waste associated with the uses on the land, including the provision of bulk waste collection bins or approved alternative, recycling bins, the storage of other refuse and solid wastes in bins or receptacles within suitable screened and accessible areas to the satisfaction of the Responsible Authority. Commercial waste bins being placed or allowed to remain not in view of the public, and receptacles not emitting any adverse odours.
(b) Designation of methods of collection including the need to provide for private services or utilisation of council services. If private collection is used, this method must incorporate recycling services and must comply with the relevant EPA noise guideline relating to the time of collection.
(c) Appropriate areas of bin storage on site and areas of waste bin storage on collection days.
(d) Details for best practice waste management once operating.
[41]
Once approved the WMP will be endorsed to form part of this permit and must be complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.
[42]
No plant, equipment, services and substations other than those shown on the endorsed plans are permitted without the prior written consent of the Responsible Authority.
[43]
Privacy screens must be in accordance with the endorsed plans and must be installed prior to the occupation of the development. The privacy screens must be maintained to the satisfaction of the Responsible Authority.
[44]
This Permit will expire if:
The development does not start within three (3) years from the date of this Permit; or
The development is not completed within five (5) years of the date of this Permit.
[45]
The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within six (6) months after the expiry date if the use/development has not commenced. If the development has commenced, the Responsible Authority may extend the time referred to if a request is made in writing within twelve (12) months of the expiry date.
[46]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
Chocolate Tower Pty Ltd v Glen Eira CC [2017] VCAT 891 (20 June 2017)
AI Analysis
Outcomeappellant
Disposition:
The responsible authority’s refusal was set aside. A planning permit was granted for the seven-storey mixed-use building, subject to the endorsed plans and conditions in Appendix A. The conditions included a three-metre setback from the eastern end of the southern boundary for Levels 4 to 7, enclosure and ventilation of the south-side corridors, bedroom privacy measures, six cubic metres of storage per dwelling, and four residential visitor parking spaces. The Tribunal also corrected its earlier order under section 119 of the Victorian Civil and Administrative Tribunal Act 1998.
The review site is well located to services and infrastructure. It is within an activity centre that includes cafes, health services and a reasonable range of shops and professional businesses. Trams operate along both Balaclava Road and Hawthorn Road. Malvern train station is approximately one kilometre to the north. Glen Eira's premier park is 100 metres to the north.
We agree with the parties that the site's primary constraints are its mid-block location, generous depth and the prospect of the redevelopment of the neighbouring sites.
We are satisfied the building generally responds well to the site's features and context as it would:
retain retail frontages to Hawthorn Road consistent with the prevailing built form
provide a three storey street wall that is consistent with the prevailing and emerging street wall in Hawthorn Road
provide a tower form to Hawthorn Road that includes setbacks to the side boundaries consistent with no.144 Hawthorn Road
provide vehicle access to the rear right-of-way and hence does not interrupt the retail frontages to Hawthorn Road
provide a canopy over Hawthorn Road that integrates with the prevailing weather protection for pedestrians
provide casual surveillance from the upper floors over Hawthorn Road
orientate the middle dwellings in the residential tower to the northern boundary thereby enabling them to enjoy good solar access
provide setbacks to the north and south side boundaries to most of the residential tower in response to a reasonable sharing of development opportunities.
We find that the building responds to its context and features. We turn in the sections below to the contested matters: these being its seven storey height; its interface to a heritage place; traffic and parking matters; and amenity and equitable development opportunities.
Encourage a diversity of housing types at higher densities in and around activity centres.
Facilitate increased housing in established areas to create 20 minute neighbourhoods, and support housing growth in defined change areas.
Locate new housing in and close to activity centres that offer good access to services and transport.
Clause 21.04 provides further guidance as to the role and character of this centre. This framework has been ably described by the Tribunal in Rosenwald v Glen Eira CC.[2] We think the pertinent parts of that summary are:
There is a targeted approach in Glen Eira to accommodating additional dwellings.
There is a hierarchy of areas identified for increased housing densities that together are described as Housing Diversity Areas.
The hierarchy is (from the top) Urban Villages of Bentleigh, Carnegie and Elsternwick, and the Phoenix Precinct at Caulfield, followed by Neighbourhood Centres - Commercial that includes this particular centre.
Lower in the hierarchy are the local centre/tram routes and Neighbourhood Centres - Residential.
The remainder of the municipality, nearly 80 percent of the land area is included in the Neighbourhood Residential Zone where minimal change is encouraged.
In general terms increased residential densities are encouraged and are to be expected in the Caulfield Park Neighbourhood Centre - Commercial.
Further guidance is provided at clause 22.07 -Housing Diversity Areas. The clause encourages housing diversity by promoting a range of housing types and dwelling layouts and sizes. Developments are to:
Lot sizes in the centre, behind the shops that front Hawthorn Road are generally large and capable of accommodating taller buildings.
In addition to the above reasons, its design and articulation would enable it to be interesting rather than visually dominant to the Hawthorn Road frontage. Its separation into a three storey base, a middle recessed waist and a small tower that would be set back from the side boundaries would be visible, but not overwhelming in the centre. The west (front) façade would have a reasonable appearance.
We think that in addition to compliance with the broad policy objectives in the SPPF and the MSS, this development demonstrates a high level of compliance with the particular design outcomes sought by clause 22.07.
The ground floor is used for retail, keeping the fine grain commercial frontages. Residential development is located above the ground floor. The development provides readily identifiable pedestrian access to Hawthorn Road, and places vehicle access to the rear of the site.
The dwellings are oriented to the east, west and north and so would have good outlooks and amenity. The south interface to the tower element that has the lesser amenity would be used for the entries to dwellings. The building would have setbacks of 5.5 to 6.3 metres to the side boundaries, enabling the reasonable separation of habitable rooms and balconies from future dwellings on the adjoining land to the north and south.
The parties disputed the responsiveness to context and policy of the eastern façade facing the right-of-way and school. As proposed, it would comprise a sheer wall with a height of six storeys, built to its northeast and southeast corner boundaries. The east facing balconies at the levels above the ground floor would articulate this facade.
The arguments in favour of the tall and robust east façade are:
the sheer walls allow buildings on the adjoining properties to be built contiguous to their shared boundaries
the eastern interface is not as sensitive as the other facades, as no dwellings are nearby
the right-of-way is mostly used for vehicle traffic with negligible pedestrian traffic
it provides a three metre separation from the church property
land to the east is within the housing diversity area and is subject to further intensive development
the eastern wall is visually interesting and activated by the balconies and habitable room windows that would face east. We discuss the weight to be given to the Heritage Overlay in a later section.
The contrary view put by the responsible authority is that six storey sheer walls built to the northeast and southeast corners would be overwhelming and abrupt. It would also facilitate a similar design response on the adjoining properties. This could result in a continuous wall along the right-of-way that would be imposing, and not comply with policy that encourages the rear of buildings to step down to sensitive uses, including to the nearby heritage place.
Mr Negri thought the east facing wall is acceptable because it would facilitate the redevelopment of no.219 Balaclava Road to the north and no.81-85 Hawthorn Road to the south. He says the church and school are not sensitive uses that require tempered or recessive setbacks, such as the stepped profile that is visible at the rear of the six storey building at no.144 Hawthorn Road.
Mr Biles also thought the eastern façade is acceptable. He conceded that a more tempered response would be required if residential properties were on the east side of the right-of-way. He thought the design solution is acceptable to the adjoining school and church. He thought a perception of excessive visual bulk to this façade is mitigated by the balconies at each level.
We are concerned with the visual bulk of the eastern facade. We think that for amenity reasons we discuss below, and for good urban design reasons, its visual massing needs to be tempered, particularly given the likelihood that buildings on the land to the north and south will abut this building.
We are not so much concerned with the height and sheer wall, and agree that the church and school are relatively insensitive interfaces. We also give little weight to the views from the dwellings on the east side of Catherine Street. They are a considerable distance from the right-of-way and will see little of the building.
We accept the arguments that the proposal for the review site should be built to the boundary in the northeast corner. The site configuration of no.219 Balaclava Rd means that if that site were to be redeveloped, for all practical purposes the area designated as "carpark" should be utilised.
However, with regards to the southeast corner boundary to the review site, and the northeast corner boundary to the site to the south, we question the design rationale.
We assume that the consolidated site of nos.79-85 Hawthorn Road to the south would be redeveloped in a similar manner to the review site proposal; that is, with some residential apartments orienting north. Building to the corner boundaries for both sites would limit solar penetration to any future north facing dwellings at nos.79-85 Hawthorn Road. Separating this building from a new building to the south would provide for both visual separation and adequate solar penetration to any new dwellings to the south.
From an urban design standpoint, a separation would allow for a distinct change in form and materiality between new buildings on different sites.
We think there is merit in the southeast façade of Levels 4 to 7 being set back a minimum of three metres from the south boundary. This would require the reconfiguration of apartments 406 and 407 on Level 04; 506 and 507 on Level 05; 606 and 607 on Level 06; and a slight adjustment to apartment 704 on Level 07. We would then expect the site to the south to be redeveloped with a setoff to its northern boundary above its "podium"' a similar distance.
It is still the prerogative for this consolidated site to the south to develop to its northeast corner boundary, and it will have the opportunity to do so. However, if it did this it would only limit the solar penetration to its north facing apartments, and in our opinion limit its potential.
We agree with Mr Raworth that the development would not obstruct any views of the church, particularly the primary views from Balaclava Road. We agree with him that the height of the church would entirely screen views of the building from Catherine Street. We also agree that the church is not visible from Hawthorn Road except at Balaclava Road, and hence the building would not detract from views from within the centre.
We accept that it would be visible in views of the church from Balaclava Road, both east of the church and from the intersection of Balaclava Road and Hawthorn Road. We also accept that the building would be visible from Catherine Street, across the playground at the rear of the church.
We are not troubled by its presence in the background because we think that it would be both separated from the church and recessive in these views. It would not be immediately adjacent to the church or appear to crowd into or intrude into the church.
We also think the eastern elevation of the building is a muted design that contains no architectural expression, materials or colours that would be too prominent and eye catching. It would not visually demand attention in a manner that would draw attention from the church. We also note that the church has local heritage significance which is at the lower level of sensitivity.
We also think the vegetation on the western boundary of the right-of-way and in the front of the church would screen views of much of the building.
We are satisfied that the sight of a seven storey building in the backdrop to the church should be expected given the policy framework that directs such development to higher order activity centres.
We are satisfied that the development would not detract from the heritage significance of the church.
The development would provide 53 car parking spaces, five at ground level allocated to the retail tenancies, and 48 spaces in the two basements, all allocated to the residents of the dwellings. Up to four dwellings may have one additional parking space. No spaces would be allocated to visitors to the dwellings or customers of the shops.
The responsible authority says the development should provide parking for the residents and visitors of the dwellings and for retail staff. It agrees that no parking needs to be provided for the customers of the shops.
Mr Fairlie's expert opinion was the parking provision is acceptable. He says customers of the shops would presently be using the on-street parking and consequently there would be no change to the demand for spaces as a result of the shops.
He did not support providing visitor spaces within the basements. It was his advice that while on-street parking is well used in business hours, sufficient spaces would be available outside these hours to accommodate visitors to the dwellings. He also thought it would be difficult for visitors to find their way into the basements, and providing spaces for visitors in the basement would be difficult as some spaces are in a tandem arrangement. It was his view that customer and visitor spaces should be provided on a centre wide basis.
We agree with the responsible authority and consider that this development should meet some of the parking demand generated by the visitors. We do not regard it as consistent with clause 52.06 to provide excess spaces for residents and at the same time require visitors to find spaces in already congested local streets.
We think the right balance is to provide some spaces for visitors who are likely to arrive during business hours. We understand from Mr Fairlie's report that in the order of half the visitor parking rate, or four spaces would be used during business hours.
We intend requiring four visitor spaces to be provided in the basement. This should be able to be provided without requiring changes to the basement layout.
We generally agree with the parties that the future residents of the dwellings would enjoy acceptable amenity because:
the dwellings and the habitable rooms are a reasonable size
the living rooms and private open space would have east, west or north orientation, and attractive outlooks from the dwellings on the higher levels
the building has an easily identifiable entry to Hawthorn Road
the dwellings would have easily identifiable entries, storage and mail boxes
all habitable rooms would have access to natural daylight and ventilation
the setbacks to the side boundaries would provide adequate separation if adjoining properties are redeveloped and any new development provides similar setbacks
vehicle and bicycle parking and storage is provided in the basement.
With regard to the particular concerns of the Council, we agree with it that the privacy of bedrooms adjoining the walkways on the south side of the building are inadequate. They would be protected to some degree by the voids of 1.5 metres width that would prevent a person standing immediately outside the window. However, the voids would not prevent views into the bedrooms from the walkway.
We think the privacy of the bedroom windows need to be improved. This could include providing highlight windows with sill heights more than 1.7 metres, or some form of screening such as perforated metal screening fixed to a minimum height of 1700mm above the concrete balustrades to the void spaces as shown, to provide adequate privacy to these internal spaces.
With regard to the daylight to the bedrooms on the northeast corner of the building, the proposed windows would have a width of 1.2 metres and the secondary corridor would be 1.8 metres long, thereby complying with the new standard. We accept the permit applicant's submissions and notated plans that show the dimensions of the window and the corridor to the room comply with the new standard D26 of clause 58.07-3. While this clause is not applicable to this application, it is the only quantifiable measure available to us to assess daylight.
We also agree with the parties that the two metre wingwall could be reduced to one metre, and the access to daylight would be retained in perpetuity by the right-of-way.
We also have several other concerns with the amenity that would be provided to future residents.
The "Breezeway' that provides the pedestrian access to the dwellings on Levels 01 to 07 is open to the weather. Above Level 07, it would be covered by a polycarbonate roofing. It reminds us of the much criticised public housing buildings. It will be very visible in views from Hawthorn Road. It would provide little comfort and minimal protection from the cold and hot days.
While it would provide ventilation, we think there are better ways to provide pedestrian access in a contemporary building. We are satisfied that it should be enclosed to protect residents and visitors against inclement weather conditions. We consider the enclosed corridors should also have some form of adjustable/operable glazing above glass balustrades for ventilation.
Our second concern relates to the perception of enclosure as viewed from the "Breezeway" and future dwellings to the south. The building would be built boundary to boundary at its east elevation, for Levels 04, 05 and 06. It is set back from the side boundary only at its uppermost Level 07, where there would be a 0.923 metre setback to its north boundary, and a two metre setback to its south boundary.
We think that given the high likelihood that the adjoining land to the south will be redeveloped to the boundary adjacent to the right-of-way, people using the "Breezeway" would experience a sense of enclosure because there would be no oblique views to the east, unlike to the west. We think this would make the eastern end of the "Breezeway" area an unattractive place.
We think that for internal amenity reasons and to prevent an unbroken six storey and higher continuous wall of buildings, there is merit in requiring a break between this building and any new building to the south.
A break could be consistent with the three metre setback at the Hawthorn Road end of the building above the podium as it would enhance the internal amenity of residents and reduce the visual massing of the built form along the right-of-way.