Victorian Civil and Administrative Tribunal|2009-08-24|Before: Ms J, Mr P

Common Equity Housing Ltd v Yarra CC & Ors [2009] VCAT 1722 (24 August 2009)

Section 79 of the Planning and Environment Act 1987; Yarra Planning Scheme; Residential 1 Zone; Heritage Overlay (HO313); Building Scale and Mass; Demolition; Heritage Values; Character; Off-Site Impacts; Traffic; Parking.

Common Equity Housing Ltd v Yarra CC & Ors [2009] VCAT 1722

Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1987, persons listed in the document tendered by Ms Halls "People who have written to request to be a party to the appeal" are joined as parties to the proceeding.
Leave is given to the permit applicant to substitute for the permit application plans, the amended plans circulated in accordance with the Tribunal's directions, being plans TP008 - TP012 inclusive all revision A dated 10.06.2009 and TP014 - TP016 inclusive all revision B dated 02.07.2009.
In permit application no. PL08/0909 the decision of the Responsible Authority is set aside. A permit is granted and is to be issued. The permit relates to the land at No. 203-205 Gipps Street, Abbotsford. The permit will allow:
- (a) Partial demolition of the existing factory and demolition of the existing dwelling;
- (b) Construction of two, three and five storey buildings for the purpose of no more than 59 dwellings plus basement parking;
- (c) A reduction in parking requirements;

The permit is subject to the conditions contained in Appendix 1 to these reasons.

Ms A Lane, solicitor of Maddocks lawyers. Ms M Marcus, solicitor, appeared for part of Day 3.

Mr S Morris QC and Ms S Porritt (Days 1, 3 and 4) of counsel instructed by Macpherson & Kelley lawyers. Mr S Toia, project architect, assisted with respect to aspects of the design. Evidence was called from:

Mr B Raworth, heritage architect.
Mr C Butler, traffic engineer, of Cardno Grogan Richards.
Mr V Connor, town planner of Contour Consultants Australia.

A statement of evidence by Mr T Vernon, landscape architect of CDA Design Group, was tendered. He was not called and no party sought to cross-examine him.

Ms M Halls for a large number of parties as set out in her submission and for parties joined to the proceeding.

Mr M Dahl in person who tendered a written submission.

Approval is sought to demolish the dwelling on the land and all but the external walls of existing factory as they abut Gipps and Nicholson Streets. It is proposed to construct a basement car park with 60 spaces, bicycle and other storage. That would extend to 900mm above footpath level. Above would be a five storey building fronting Gipps and Nicholson Streets (18.2 metres high), a three storey building fronting Gipps and Little Charles Streets (12.2 metres high) and five, two storey townhouses fronting Little Charles Street (8 metres high). That would total 59 dwellings. Common Equity Housing Ltd [CEHL] would retain 25 units for social housing. The balance of 34 units would be sold. Profits from the sale would be used for other housing projects by CEHL, a not-for-profit body.

Residential 1 Zone. Heritage Overlay (HO313 Charles Street).

Clauses 11, 12, 14, 15.11, 15.12, 16.02, 16.05, 18.02, 19.03, 21, 22.02, 22.03, 22.05, 52.34, 52.36 & 65. Council has adopted Amendments C84 & C85. Amendment C84 was subsequently gazetted on 13 August 2009.

The site is on the south-west corner of Gipps and Nicholson Streets. It is 2,385 square metres in area with frontages to Gipps, Nicholson and Little Charles Streets. It contains a single storey building (the former Harold Shoe Company) with a high parapet. There is also a single storey timber dwelling.

The land abuts single storey dwellings west of Little Charles Street fronting Gipps Street and to the south at No. 113 Nicholson Street. Both have habitable room windows facing the review site. Former industrial land is also to the south. Two double storey dwellings front Little Charles Street. A three storey dwelling, fronting Little Charles Street, is approved to the rear of No. 108 Charles Street. The opposite side of Nicholson Street comprises commercial/industrial premises of one and two storeys. The north side of Gipps Street includes a shop on the western corner with Nicholson Street and a converted two storey industrial building to its rear. A single storey heritage dwelling is on the opposite corner of Gipps/ Nicholson Streets. North along Nicholson Street are single storey dwellings.

6 August 2009 including buildings on-site. Several further visits occurred to view traffic and parking conditions.

Common Equity Housing Ltd proposes the redevelopment of the former Harold Shoe Factory to provide 59 units, in three building modules, for a mix of social and private housing. A five storey building would front Nicholson Street wrapping around the corner into Gipps Street, a three storey building would front Gipps Street wrapping around the corner into Little Charles Street, and two storey townhouses would front Little Charles Street. One basement would service all units, with the highest building separated from the lower two buildings assisted by a central communal open space. The design provides for the Gipps/Nicholson Streets façades of the factory to be retained mainly as the base to the larger building.
The permit application lodged with the Yarra City Council to undertake this project was refused by the Council. It was, however, the subject of a favourable recommendation from officers. The Council's grounds of refusal focus on the building's scale and bulk in terms of the existing neighbourhood character, heritage considerations and site responsive design. The Council's grounds also express concern that the proposal is an over-development with respect to traffic and parking. These grounds are supported by Respondent Objectors who have raised other concerns with the proposal. Additional issues include the extent of demolition, density of the development, failure to integrate with the street, increased loads on infrastructure, overshadowing, overlooking, lack of environmentally sustainable design, and aspects of the internal layout of the buildings.
As CEHL has applied for the Council's decision to be reviewed, the Tribunal must decide whether to grant a permit and, if so, what conditions should apply. Having considered all submissions based on the provisions and policies within the Yarra Planning Scheme[1], assisted by our inspections, we will allow the Application for Review. In setting out the reasons for our decision, we do not recite all of the documentation tendered by the parties as all material is retained on the Tribunal's file.

No planning permit is required for the use of the land for residential purposes.
It is, however, noteworthy that the proposal involves the former industrial land being used for entirely residential purposes, consistent with the primary purpose for which the site is zoned. We also acknowledge the aim of the project to provide social and affordable housing, an outcome that is consistent with the strategic directions of the Yarra Planning Scheme.[2]
State and local policies place weight on the achievement of a dwelling mix while accommodating forecast increases in population and retaining a diverse population and household structure. In this context, we do not accept criticisms of the proposal made in several statements of grounds with respect to the lack of family-friendly dwellings. It is not necessary to provide larger dwellings or units directed to a different or specific population profile. We also do not accept "in principle" arguments that the proposed density is too high and should be rejected outright. Rather, having regard to the provisions and policies of the Scheme to which we are required to give effect, it is essential for any proposal to achieve an acceptable outcome with respect to heritage and neighbourhood character objectives, ensure that occupants have an appropriate level of internal amenity, address the potential for adverse off-site amenity impacts, and have a suitable supply of car parking. We turn to these considerations next.

The proposal involves demolition of the existing dwelling to the north-west of the site and most of the factory building except walls along Gipps and Nicholson Streets. Several parties expressed concern about demolition of the dwelling and the extent of demolition of the factory. The parties placed weight on the buildings on the site being identified as contributory in the 2007 City of Yarra Heritage Review. We also note that the Council's 1998 City of Yarra Heritage Review, that is the reference document in the Planning Scheme at Clause 22, does not identify the site as having significant or contributory elements.
The evidence and information presented by several parties indicates the factory was erected in two stages and completed in the early 1920s.
A building at the north-west corner of the site in 1858 is shown on a map tendered by Dr Dods but the form and position of the existing dwelling closely corresponds with a 1901 MMBW plan, rather than the 1858 map, as Mr Raworth described. Our inspection confirms Victorian detailing in the dwelling without obvious evidence of an earlier structure. We understand from submissions and videos[3] Dr Dods tabled for viewing that the dwelling was used in association with the factory. We do not consider the dwelling dates from the mid 1800s. Rather, it has the hallmarks of a Victorian house that has been substantially altered internally and externally. It is essentially obscured from Gipps Street today and we have not detected remnant vegetation or original elements associated with the garden. There are no submissions that the house has important associations with any individual.
We consider the extent of proposed demolition in the context of why HO313 is significant, as required by Clause 43.01 of the Scheme.
The statement of significance for the Charles Street heritage precinct differs between the 1998 and 2007 heritage studies. Both citations refer to:
- the precinct's outstanding significance with a core of early civic buildings of individual significance including the landmark Collingwood Town Hall; and
- substantially intact late 19th and early 20th century houses.
The most and less intact streetscapes are identified in the 1998 study, including Nicholson south of Gipps being one of the less intact.
Both the 1998 and 2007 studies describe the heritage precinct including a boot factory in Yarra Street that is said to be typical of industrial buildings in the area.
Industrial buildings are not part of the statement of significance in the 1998 study. Conversely, the 2007 citation identifies contributory elements including "well preserved, typically one-storey residential and industrial buildings" with the Charles Street precinct significant for reasons including:

some well preserved industrial and commercial buildings (i.e. in Gipps ... Streets), dating predominantly from the late 19th and early 20th centuries, but with a secondary contribution from the inter-war era.

Consistent with this, the 2007 study refers to the primary development era as Victorian and Edwardian with a secondary contribution from some well preserved inter-war buildings.
On these bases, we accept submissions that the area enjoys an historic context of a mixed industrial and residential area.
We also accept submissions the inter-war factory building on the review site makes a limited contribution to the heritage significance of HO313. That is on a secondary basis to the primary significance. It is also relevant that the site is in one of the less intact streetscapes. The factory building retains its integrity despite the Nicholson Street façade being painted with a wave design. Some original detailing is extant. The wave painting was called a local landmark in one submission but it is not cited as such in any way in the documentary material (descriptions or citations) to which we were referred by the parties.
The dwelling at the north-west of the site is from the primary development era but it is obscured and altered. It does not sit within a cohesive row or intact context.
Clause 43.01 requires consideration of whether the demolition, removal or external alteration will adversely affect the significance of the heritage place. Local policy at Clause 22.02 discourages demolition of contributory fabric such as the dwelling and factory particularly where the fabric has not been changed beyond recognition and does not make a streetscape contribution. Amendment C85 would also not support demolition of contributory elements. The site's location is not among buildings with a similar appearance but it is related to heritage buildings of a similar height and scale.
In the design before us, the front factory walls to Gipps and Nicholson Streets would be retained and the inappropriate wave paintwork removed. There would be incursions into the façades, such as the vents to service the basement and modified windows to allow the entry between the five and three storey buildings. The balance of the factory and all of the dwelling would be removed.
We are satisfied that the proposed demolition is acceptable in the circumstances. The buildings in issue make a limited contribution and sit within a modified context. There are better examples of boot factories of a similar period in the area. If the factory and/or the dwelling made a more significant contribution individually or to the precinct and/or were in a different setting then we might reach a view that more should be retained.
Thus, although there is an argument that demolition does not accord with the local policy, subject to an acceptable replacement/addition, we find the proposed demolition of most of the factory and all of the dwelling on the review site would not adversely affect the significance of HO313.

Is the proposed built form acceptable in heritage terms?

The Council and Respondent Objectors submitted the proposal fails to conserve and enhance the values of HO313 that comprises predominantly single storey dwellings. They submitted the proponent has placed too great a reliance on larger buildings outside HO313 for design cues. The design was criticised as representing "façadism" and the upper level setbacks insufficient to respect the retained building. Many parties submitted the proposal would overwhelm the heritage place because of the substantial departure from the existing building scale and nearby contributory structures. Some also submitted the ground level setbacks should be increased to match adjacent building lines. Further, the development was said to alter and obscure viewlines to heritage buildings.
Those opposing the proposal referred to the heritage advice obtained by the Council whereas the Applicant relied on the evidence of Mr Raworth to refute the heritage grounds upon which the proposal was challenged.
In addition to implementing State and local policies, the purposes of Clause 43.01 include:
- To conserve and enhance heritage places of natural or cultural significance.
- To ensure that development does not adversely affect the significance of heritage places.
Decision guidelines of Clause 43.01 that we must consider include whether the proposed development would adversely affect the significance, character and appearance of the heritage place (the whole of HO313) and whether the proposed works would be in keeping with the character and appearance of adjacent buildings and the heritage place.
Something significant was sought to be made of the different bases upon which Mr Butler and Mr Raworth assessed the proposal with respect to the local policy (that is whether the proposal is regarded as additions or infill). We have considered both parts of the local policy as well as the adopted revisions to Clauses 22.02 in Amendment C85. While there are differences between the various parts of the existing policy as well as with the proposed policy, the messages are clear with respect to the objectives.
HO313 is quite large and there are diverse elements within it, as set out in the description included in both the 1998 and 2007 heritage reviews. There is no doubt that the single storey Victorian and Edwardian dwellings are one of the primary bases for the precinct's significance in addition to (inter alia) the early civic buildings.
The review site is located at one corner of the intersection of Gipps and Nicholson Streets where two other corners are also in HO313. West of Little Charles Street, on the south side, are single storey period dwellings, with those closest to the review site being more altered and less intact than others further west. The north side of Gipps Street also comprises single storey dwellings (some with additions) and the double storey converted building opposite. The art deco factory on the south-east corner of Gipps and Nicholson Streets is not in HO313 nor is the row of two storey commercial premises with front setbacks used for parking further south. To the south of the review site, on the west side of Nicholson Street, are several single storey cottages with front setbacks, then some more modern two storey dwellings with single storey between, before larger school buildings that terminate this part of the HO313 area at Mollison Street.
The proposed two storey townhouses fronting Little Charles Street were not really challenged by any party on heritage grounds. In our view this format and laneway frontage are typical of newer development addressing lanes that is emerging in the wider area. Representative of that trend, there are two double storey dwellings opposite the site in Little Charles Street and a three storey development is approved to the rear of No. 108 Charles Street, also with a Little Charles Street address. We find the townhouses to be an acceptable heritage response with respect to HO313 and Clause 22.02.
The proposed three storey building would provide a transition from the single storey dwellings to the west of Little Charles Street and the higher corner form with the retained factory walls as its base. The spacing between the three and five storey elements is equivalent in breadth to the spacing provided by Little Charles Street. This serves to avoid a singular building mass and to retain views between built elements. That is, the fine grain of the area is respected in this aspect of the design.
Similarly, the position of the driveway allows a break between the stepped southern elevation of the larger building and the lower form of No. 113 Nicholson Street. A suitable transition on the southern elevation is achieved based on the substituted plans.
Retention of the front factory walls means a zero lot line; that is not the same for the adjacent dwellings. However, retention of the front walls is acceptable in our view even though that means the development would be relatively prominent in the immediate environs of the site. A hard edge to a corner is not, however, unusual in HO313.
Arguably the most contentious aspect of the proposal is the five storey form and its relationship to the retained façades of the factory. Opposition to this form focused on the height of this building and the lack of similarly-scaled buildings in HO313. Some argue a two storey outcome is required.
The five level form would not be recessive when compared with single storey dwellings and other low scale significant and contributory elements in HO313. It would be reasonably prominent in the immediate setting but less so when the mature street trees are in leaf dependent on the view line.
We are, however, persuaded that the outcome is acceptable.
HO313 is not homogenous in terms of a single storey domestic scale and there is a mix of building stock with disparate heights. Older industrial and other buildings (such as the school to the south) are an element of this.
The base of the five storey building is formed by the retained walls with a raised internal floor to allow vents for natural ventilation to the basement and the parapet to form the balcony balustrade for the first floor dwellings. This is a clever approach. The fairly minor incursions into the retained fabric are acceptable given the building's low level of significance when also balanced with improvements that will be made, such as by the removal of the wave paintwork.
The upper levels of the five storey building would be setback from the retained walls. Although the setbacks are not deep (except for the top floor) the break is sufficient given the low heritage contribution of the retained fabric. The building will not be as top-heavy as the elevations may suggest. The approach to retained front walls is not dissimilar to other examples one can see in Abbotsford where walls have been reused in some contemporary development (eg. Charles Street near Victoria Street) albeit on a larger scale.
We find the proposal has been very carefully prepared to respond to the retained fabric and setting. The façade treatments are broken to respond to the grain of development found in HO313. The use of brickwork to levels 3 and 4 is proportionally responsive to the retained walls with the recessed glazed first floor (2nd level) providing a visual separation. The fifth level is recessed and thus the development will be read as four levels even though the top floor will be seen within increasing distance.
The saw tooth roof format of the uppermost level of the largest building and to the three level building was criticised but we think it works well with the balance of the design and assists to bring daylight into the dwellings. The lift over-run will not exceed this height.
As alluded to above, the design and materials adopted by the architect are crafted in a way that is not fairly appreciated from the elevations or colours found in the photomontages. An example is the "bug eye" windows to which the Council referred that are actually shrouded windows with recessed glazing. On the elevations and in some images, they look like windows that protrude whereas it is only the window frame that would do so to any depth. Similarly, the "hit and miss" brickwork and colours in the montages give an impression that will be quite different to what will occur based on the descriptions provided to us, the brick samples, and the sample board of material and finishes that were tabled.
We do not consider the proposal would impact on significant vistas or view lines to heritage fabric or to the Collingwood Town Hall from any identifiable critical viewing point. Nor do we consider the heritage skyline will be adversely affected in the site's context.
A lack of integration with the street was suggested by some parties. While there are few doors directly off the street, we do not find that to be a critical failing having regard to the retained building fabric and the acceptable approach taken to the corner of Gipps Street and Little Charles Street.
In summary, despite the scale of the proposed development, we find it would achieve the objectives of Clause 43.01 in the site's context. That is primarily because of the use of three, essentially separate, built elements, with a large central courtyard. In addition, there is good spacing between buildings on site and adjacent properties. The pattern and rhythm in the façade treatment respond to heritage elements. A more deferential response to the retained building fabric is not required.
This finding does not necessarily provide a precedent for other sites in HO313. The same scale of development may be unsuitable in other parts of the heritage precinct where the context and pattern of development are different, such as narrower streets and more intact streetscapes. A contextual approach is needed in every case.

Is the proposed built form acceptable in character and urban design terms?

Arguments against the proposal focused on similar criticisms as referred to above. However, character and urban design considerations raise broader matters with respect to the site's relationship to its whole context (including land outside HO313). In this respect, a number of parties again submitted the proposal has relied on larger developments that are remote from the site or that the proposal will produce a development that is too large outside an activity centre. They seek a lower scale response.
The Applicant challenged these arguments primarily through the evidence of Mr Connor while also relying on the assessment by the Council officer and independent urban design advice obtained by the Council during the processing of the application.
We agree with submissions that the purpose of the Zone, and local policies, emphasise respect for neighbourhood character. There are also the Guidelines for Higher Density Housing which we have considered.
Clause 21.05 refers to the aim to retain the low rise urban form of Yarra with pockets of higher density development. The low rise form is described as "mostly in the one to two storey range, with some three and four storey buildings". The pockets of taller buildings are identified as high-rise housing estates, some industrial or ex-industrial complexes and landmark towers, spires and signs.
Clause 21.05, Strategy 16.1, is to ensure that development outside activity centres and not on strategic redevelopment sites reflect the prevailing low-rise urban form. Policies for Abbotsford at Clause 21.08 show the site as within the heritage overlay - to ensure that development does not adversely affect the significance of the heritage place (a matter discussed above).
Submissions varied as to whether the review site is a strategic redevelopment site. The review site is not shown on the map or in the list of six strategic redevelopment sites in Abbotsford at Clause 21.08. Clause 21 does not define the term.
The phrase "strategic redevelopment sites" is, however, used in State policy. It is policy at Clause 12.01 to locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport by identifying strategic redevelopment sites for large residential development that are:
- In and around the Central Activities District.
- In or within easy walking distance of Principal or Major Activity Centres.
- In or beside Neighbourhood Activity Centres that are served by public transport.
- On or abut tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to Principal or Major Activity Centres.
- In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
- Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.
The review site could be argued to fit the second and last criteria given Victoria Street is a major activity centre.
Should the list of strategic redevelopment sites in each neighbourhood in Clause 21.08 be regarded as an exclusive list? This question is relevant because Clause 21.05 Strategy 16.2 states (inter alia) that development on strategic redevelopment sites and within activity centres should generally be no more than 5-6 storeys unless it can be demonstrated that the proposal can achieve specific benefits such as:
- Significant upper level setbacks;
- Architectural design excellence;
- Best practice environmental sustainability objectives in design and construction;
- High quality restoration and adaptive re-use of heritage buildings;
- Positive contribution to the enhancement of the public domain;
- Provision of affordable housing.
We do not think the mapped and listed sites should be regarded as being exclusive. It will not always be possible to identify such sites into the future and opportunities that present themselves that fit the location criteria should be able to be considered for higher scale development. Any redevelopment will involve an assessment of a site's physical and planning contexts resulting in different responses in different settings. That does not mean any site that can fit more than 10 dwellings in Yarra should be contemplated for 5-6+ storeys.
On the basis of the local policy, a development of two and three storeys on the review site cannot be said to be fundamentally at odds with the direction adopted by the Council and only recently included in the Planning Scheme with respect to the municipality's low rise form. The five level building has one more storey than the policy description, but, on a site of 2,385 square metres and with a well recessed fifth level, we consider there is the potential to achieve the Scheme's built form objectives. Moreover, if the review site is regarded as a strategic redevelopment site, the proposal would accord with the identified height range of 5-6 storeys and achieve benefits cited such as affordable housing and adaptive re-sue of heritage fabric.
Either way, we are satisfied that the proposal is an acceptable response to the character outcomes sought by the Scheme.
Our reasons are substantially the same as set out above with respect to heritage considerations and do not need to be repeated.
Our views with respect to character and urban design objectives are further reinforced by the acceptable relationship to the commercial precinct to the east of the site. The proposal would be significantly higher than the lower scale art deco corner building. However it is reasonable to expect that site would be redeveloped in time as it is not affected by any Heritage Overlay and is within an industrial zone with higher elements to its east and south.
Minimal front and side setbacks are not unusual in the area. The retained factory building assists to tie the development with the commercial and industrial fabric to the east. We find the hard edge design response to be acceptable for this reason even though we acknowledge there are frontage setbacks associated with the newer commercial premises south along the east side of Nicholson Street that mainly provide for car parking.
The proposed five storey building would be largely read as four storeys from Nicholson and Gipps Streets and the design responds to the industrial fabric in the near and wider area without copying it or being too complex.
We accept the fifth level would be seen in longer views, the extent of which will be influenced by existing and proposed street trees, however that is not unacceptable in this mixed urban setting and context. The southern elevation of the five storey building has been modified several times with the form in the substituted plans more graduated with respect to the interface to the south and in northwards views along Nicholson Street. We will, however, accept Mr Connor's suggestion with respect to a small modification to the southern elevation as shown in Attachment 3 to his statement of evidence.
Ms Lane said that Mr Hutson had suggested a variation to the western elevation of the three level building so as to soften the corner treatment. We have not been persuaded that change is required (although we would not oppose it should it be taken up by the proponent). We consider the three storey form is sufficiently articulated and setback given the separation provided by Little Charles Street.
The proposal would improve the sense of passive surveillance and enhancement of the public realm. We have not been persuaded to direct changes to respond to some matters raised at the hearing such as the provision of additional doorways or a revised façade to Little Charles Street.
Clause 22.07 addresses development abutting laneways and seeks to enhance the amenity of the laneways including a sense of safety. We are satisfied that the proposed townhouses adopt suitable scale and setbacks along Little Charles Street. Entries are clear and it would be desirable to include external lighting associated with the units.
Plant and equipment are not shown. Having asked Mr Toia to explain how these items would be addressed, we are satisfied the lift over-runs will sit no higher than the saw tooth roof and spaces are available for plant, equipment and air conditioning units without these elements appearing as add-ons. The solid balustrades are an example; condensers could sit behind the balustrade without being seen from the public realm. Underground water tank(s) will be used with associated pumps being within the basement. It is unclear at this stage whether any mechanical ventilation will be required for the basement but that can be dealt with by a condition.
For these reasons, we find the proposal to represent an acceptable outcome in terms of character and urban design considerations and objectives. The layout has been planned to provide a lower scale response to the south and west, where there is a closer relationship to more modest building forms, with the higher element along Nicholson Street, opposite commercial buildings, and to the Gipps Street corner. The southern elevation is sufficiently graduated with respect to the low scale buildings to the south.

A number of criticisms of the proposal focused on the internal layout and amenity associated with the design. We address these concerns next.

Most units rely on balconies and the central communal courtyard. Four ground floor units have no open space while larger dwellings tend to have more private space. Only one unit has south-facing private open space.
We find the amount and orientation of individual open spaces to be acceptable. We reach this conclusion having regard to the large communal area on-site and being mindful of ready access to the Yarra River corridor a short distance to the east. Thus, we will not direct any changes to the design in this respect, other than to take up Mr Connor's recommendation to modify the south-west corner of the five storey building that is for built form reasons. We will not require a juliette balcony to unit G.02.

Given the need to add screening to protect against overlooking to the west and south, Ms Halls submitted some units would have poor amenity because of the excessive use of screening devices.
We are not persuaded to agree. Additional screening is required to some west-facing windows along the western elevation of the development however sufficient daylight and sunlight access would remain. The upper level bedrooms in the townhouses will have access to skylights through the saw tooth roof form. The living rooms in 1.12 and 2.12 have cabinets adjacent to the windows meaning raised window sills are unnecessary. Moreover, those living areas have an alternative northern window and deck.

The design provides for visitor bicycle parking off Gipps Street and a communal area for residents' bicycles within the courtyard. We accept Mr Butler's evidence that additional bicycle parking be provided and that can occur at a convenient and secure location in the car park. The courtyard bicycle spaces could either be removed or retained.

Lack of space for external clothes drying and storage

There are spaces for external drying associated with the townhouses but they would be seen from the central courtyard. Clothes on balconies may also be seen. The inclusion of a common drying area would be possible in association with the courtyard. There is also scope to add storage in the basement, as discussed at the hearing.

The design was criticised by some parties as having insufficient attention to environmentally sustainable design. Among the comments were poor ventilation in each dwelling and a contention that centralised waste chutes would discourage recycling.
The proposal includes some ESD measures and has been modified through the substituted plans to provide for improved ventilation for the units. The window treatments, with varied depth in the window shrouds, are an example of the detailed consideration of the amenity of the dwellings and weather conditions. Other elements include rainwater tanks and solar hot water heating that can be detailed through permit conditions. The central waste chute is an efficient way to deal with rubbish disposal and does not mean recycling will not occur. A permit condition proposed by the Council will require ESD elements to be further developed. We find that to be acceptable.

Would unreasonable amenity impacts result for nearby dwellings?

The main issues arising with respect to potential off-site amenity impacts focus on overlooking, overshadowing, visual bulk, a loss in outlook and noise. We are satisfied that none of these matters warrant rejection of the proposal for the following reasons.

Most proposed windows and terraces would be more than 9 metres from any habitable room windows or open space in surrounding properties. This is the standard referred to in the Guidelines for Higher Density Residential Development relying on Clause 55 of the Scheme.[4] Overlooking potential is confined to west and south-facing windows. We agree with submissions that screening is required to protect against overlooking to habitable room windows and private open spaces west of Little Charles Street. We will require first and second floor west facing bedroom windows to apartments 1:12 and 2:12 to be screened. We will also require first floor west facing windows of the first three townhouses to be screened with a modified façade treatment as required to maintain variation in the west elevation of the row of five townhouses. We find no reason for screening to the slot windows that face south, or to any north or east facing windows.

Given the design, the potential for unreasonable overshadowing is limited to properties to the south, notably No. 113 Nicholson Street, and Gipps Street properties to the west of the site. Winter shadows were among the concerns identified.
The Guidelines for Higher Density Residential Development state that an assessment of the impact of shadowing of private open spaces is typically based on the equinox as the design standard.[5] Thus, even though shadows will be longer in winter, this is not the test usually applied. Design suggestions include "Maintain sunlight and daylight access to adjoining private open spaces of dwellings in accordance with Clause 55 of planning schemes".[6] The proposal would comply with Clause 55 in terms of shadowing to the south and west. We therefore find the impact arising from the proposal to be within acceptable limits of change. One statement of grounds referred to impacts on solar panels that might be installed. We do not find against the proposal for this reason.

The proposal will change the outlook from dwellings notably No. 113 Nicholson Street and others near to the review site. Even though Clause 55 does not apply, the proposal would comply with the numerical standards with respect to north-facing windows should they be applied. Given the separation from the closest existing dwellings, and the design's transitional elements, we are not persuaded to accept submissions that the proposal would represent unreasonable visual bulk or that a change in outlook from dwellings warrants a lower scale of development on the review site.

Ms Halls and other parties referred to the potential for noise from the roller door servicing the basement, pumps, plant and equipment. We are satisfied these matters can be addressed by conditions. The roller door is set into site while other plant and equipment will be within the basement. Locations for air conditioning can also be identified on the plans.

A reduction in parking is required for this development. Pursuant to Clause 52.06, two car spaces per dwelling are required. The proposal has one space for each unit and two spaces for the three bedroom dwellings. One dwelling would have no car space. No visitor parking is proposed on-site.
We accept Mr Butler's evidence that the amount of car parking proposed on-site to support the residential use is acceptable. It is likely that the social housing component will have a lower rate of car parking demand than typically occurs in medium density development. Even if we do not allow for that possibility, we find a reduction in parking is appropriate given the modest size of the dwellings, the close achievement of parking based on Clause 55 rates, the availability of alternative transport such as public transport, and excellent access to on-road and off-road bicycle networks.
The lack of visitor parking on-site was a very strong concern in many submissions and statements of grounds. We appreciate that many existing dwellings do not have the option of on-site parking and at times on-street parking is pressured. New development in the area may add to that demand in addition to the proposal before us.
We viewed the locality at various times of the day and evening, on weekdays and weekends, to appreciate submissions on this question. There is, however, a sizeable area of parking available along the site's frontages (away from the intersection and taking into account existing and proposed street tree planting). The demands arising from the development would not place an unreasonable burden on the public realm nor utilise a disproportionate share of the public resource. The design has the benefit of allowing some trucks into the basement to access lifts.
The expert evidence would suggest that there could be surplus spaces in the car park given the social housing units. We will include a permit condition that requires a parking allocation plan and also allows for the potential provision of on-site visitor parking should social housing tenant spaces not be fully utilised. That might mean internal signage and an intercom are required.
We will also accept minor internal design changes referred to by Mr Butler.

Many parties expressed concern about increased traffic on Nicholson and Gipps Streets. They highlighted existing congested conditions and submitted cars turning right into the site would block traffic movement and cause queuing into the intersection.
We have considered this question mindful of the degree of concern and having regard to new development that is occurring in the area. We are aware of the extent of through traffic in this area and using Gipps and Nicholson Streets. We have also reviewed Mr Butler's findings and those in the traffic report prepared in support of the permit application. Mr Butler's evidence differs from the earlier report that is based on a more theoretical assessment of the intersection's capacity. We have also considered the views of the Council's engineers on this matter.
The information before us does not take into account traffic generated by the former use of the land. It does include Eastlink traffic. We are aware of the busy nature of the intersection and the potential for cars entering the site, southbound on Nicholson Street, to cause a delay. We are, however, persuaded to accept Mr Butler's evidence that the outcome is acceptable given the fairly low levels of traffic movements to and from the site that would coincide with commuter peak hours. The proposed driveway would enable two cars to move side by side. If any specific issues arise then the Council, as road manager, would be able to introduce any required measures.
Some submissions also referred to impacts on Little Charles Street that is used by pedestrians as well as some vehicles. The townhouses would not rely on Little Charles Street for vehicle parking or access as the allocated spaces are proposed in the basement. Little Charles Street is a public road and the Council could ensure no standing signs are provided if there is a concern that residents might prop their vehicles in this lane/little street.

Do any other matters warrant rejection of the proposal?

Other matters were raised in submissions or statements of grounds upon which we summarise our conclusions:
- Visitor bicycle storage is uncovered. We have no concern with respect to the design of this area but it could be covered if required.
- Lack of detail about balcony planting. This can be resolved through the endorsement of a landscape plan by the Council.
- Impact on infrastructure such as footpaths, water mains, medical services, public transport and roads. There is no evidence to suggest that the local infrastructure cannot absorb the additional dwellings proposed as part of this development. Urban consolidation will place demands on services but this does not provide a basis to reject the proposal.
- Pollution from increased traffic, fumes from vents and more pet droppings. To the extent that these impacts might occur or be perceptible, they are not matters that cause the proposal to be rejected.
- Noise pollution from occupants and private waste collection. The intent is for waste to be collected from inside the basement by a private contractor (requiring a 3.6 metre high ramp clearance). We consider this to be acceptable. It will minimise noise mindful that the former use of the land may have been noisy and its parking area abuts No. 113 Nicholson Street. The noise from occupants would not be expected to be any different to what can potentially occur in any other apartment development and does not provide a reason to lower or reject the proposal.
- Car parking venting. We will include a condition addressing this matter with the aim of avoiding a negative impact on the public realm from any mechanical vents.
- Inconvenient access to the townhouses. Car parking for the townhouses is provided in the basement with several options to access the dwellings from the basement within the site and via the street network.
- Construction impacts including noise. There will be an increase in activity around the site during construction and that can be managed through a construction management plan to the Council's satisfaction.

We have considered all submissions regarding possible permit conditions. We have adopted conditions to accord with our findings and otherwise have generally accepted the conditions as agreed between the Council and Applicant as well as some suggestions made on behalf of Respondent Objectors with respect to details that need to be added to the plans. It is appropriate to draw attention to the following:
- Environmental audit. We have adopted the wording proposed by the Applicant with respect to this matter. It is based on a similar condition for another development in Yarra (Permit PL07/0556).
- Section 173 agreement. The Council sought an agreement seeking to restrict the use of the land to social/affordable housing. That was opposed by the Applicant; Mr Morris instead suggested a condition that the development must only be carried out by a non-profit entity for social housing purposes. We have adopted the Applicant's suggestion, with an added reference to affordable housing. We have made the condition variable with the written consent of the Responsible Authority. We think that flexibility is reasonable to reflect the basis upon which the permit application has been advanced and argued but would enable an alternative implementation model to be considered by the Council if necessary.

For the above reasons, we will allow the Application for Review. We find the proposal is a carefully considered contemporary design and represents an acceptable outcome having regard to all of the applicable provisions within the Yarra Planning Scheme that we are required to consider and the policies to which we must give effect.

Before the development starts, amended plans to the satisfaction of the

Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by Kann Finch Group, as modified by the plans TP008 - TP012 inclusive all revision A dated 10.06.2009 and plans TP014 - TP016 inclusive all revision B dated 02.07.2009, and further modified to show: * (a) first and second floor west facing bedroom windows to apartments 1:12 and 2:12 to be screened to prevent views into adjoining habitable room windows and private open space of dwellings to the west; * (b) first floor west facing windows of the first three townhouses to be screened to prevent views into adjoining habitable room windows and private open space of dwellings to the west with modified façade treatment as required to maintain variation in the west elevation of the row of five townhouses; * (c) the third and fourth floor plans modified to show the following changes: * (i) modifications in accordance with the recommendations of Mr V Connor, as set out in Attachment 3 of the statement of evidence to the Victorian Civil and Administrative Tribunal in Application for Review P740/2009; * (ii) terraces of apartments 3:06 and 3:09 screened to prevent overlooking into adjacent habitable room windows and private open space over a distance of 9 metres with details submitted demonstrating compliance; * (iii) details of screening between terraces of apartment 3:06 and 3:09 demonstrating no overlooking between terraces; * (d) details of screening between first floor units along the north and east elevations of the five storey building, to minimise the visibility of these elements as seen from the public realm; * (e) the new vehicle crossing must meet the requirements of Condition 4; * (f) changes to the basement ramp and development to allow a 3.6m headroom clearance including changes to the floor level of Unit G.09 but without any change in the height of the building or minimum setbacks of the building from the southern and western boundaries; * (g) a mechanism to provide visibility to the top of the ramp from the basement for exiting drivers prior to approaching the ramp; * (h) the provision of a separate delineated pedestrian pathway provided in the basement carpark, for pedestrians crossing the ramp to the south-east lobby; * (i) the provision of 14 additional bicycle parking spaces within the basement. Spaces may be relocated from the courtyard but visitor bicycle parking must be retained, as shown, off Gipps Street; * (j) the provision of a one metre setback to the store opposite car space no. 31 to facilitate vehicle movement; * (k) the retaining wall of the landscaped setback at the south-east corner of the building reduced to 600m and be splayed at a 45 degrees angle; * (l) a 'keep clear' sign must be provided on the footpath and be within proximity to the vehicle entrance; * (m) strategically located mirror must be provided to in the basement car park to aid with vehicle sightlines, particular for bays 34 and adjoining space to the south; * (n) provision and details of storage facilities for each dwelling including the use of part of the "no parking" area to the south-west corner of the basement, to a depth of approximately 3.6 metres, to retain sufficient aisle and turning area to facilitate vehicle movement; * (o) a car parking allocation schedule detailing how car spaces are to be allocated including the potential provision of visitor parking should tenant spaces not be fully utilised; * (p) provision and details of all attenuation measures to protect the internal amenity of the dwellings from external noise sources from the adjacent commercial premises; * (q) an area set aside within the property boundaries for pits, meters and essential services; * (r) all proposed external plant and equipment (including roof top plant and equipment, lift over-runs and air-conditioning) which must be concealed from view from street level and be acoustically baffled; * (s) any mechanical venting for the basement car park; * (t) plans to show the location of rainwater tanks (including capacity details) and solar boosted hot water units including pumps; * (u) an updated landscape plan, including details of protection measures for all existing street trees and vegetation abutting No. 113 Nicholson Street, Abbotsford; * (v) a plan notation confirming that all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority; * (w) an updated schedule of all external materials and finishes (including colour samples and coloured elevations), showing the use of dark Hawthorn (or similar) bricks for external brick walls. The schedule must show the materials, colour and finish of all (other) external walls, roof, fascias, window frames, glazing types, doors and fences. It must be generally in accordance with the sample board tendered to the Victorian Civil and Administrative Tribunal in Application for Review P740/2009. No highly reflective glass or reflective materials is to be used.

The development shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

The installation of the new vehicle crossing must comply with the following:
- (a) the splay/tangent point of the crossing must commence no less than 2.0 metres north of the property's south boundary line;
- (b) the ramp grade of the first 6.0 metres inside the property must be 1 in 16;
- (c) the proposed vehicle crossing shall be constructed in accordance with City of Yarra Standard Drawings and Specifications;
- (d) the development's finished floor levels relative to the existing footpath and road levels must be such that pedestrian and vehicular access accord with Australian Standards;
- (e) existing footpath, kerb and channel, and road pavement surface levels must not be altered; and
- (f) the design and construction of the proposed vehicle crossing must also satisfy the requirements of Council's Community Amenity unit's Vehicular Access into Properties (Info Sheet and Application Form) before a vehicle crossing permit can be issued.
Any damaged road(s) and footpath(s) and other infrastructure adjacent to the development site as a result of the construction works must be reinstated to the satisfaction of the Responsible Authority.
The existing street tree/s along the Nicholson Street frontage must not be removed or damaged.

No fewer than 60 car parking spaces must be provided on the land at all times.
The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:
- (a) be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the development hereby permitted;
- (b) thereafter be maintained to the satisfaction of the Responsible Authority;
- (c) be made available for such use at all times and not used for any other purpose;
- (d) be properly formed to such levels that it can be used in accordance with the endorsed plan and
- (e) be drained and sealed with an all weather seal coat.

all to the satisfaction on the Responsible Authority.

Prior to the occupation of any dwelling, car parking must be allocated to each apartment in accordance with the endorsed car parking allocation schedule.

The development must be provided with external lighting capable of illuminating access to each car parking space, motorcycle parking space, bicycle parking space, store, rubbish bin, recycling bin, pedestrian walkways, stairwells, lift, dwelling entrances and entry foyer. Lighting must be located, directed, shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within and beyond the site, to the satisfaction of the Responsible Authority.

Except with the consent of the Responsible Authority, before the plans are endorsed, a report prepared by a suitably qualified and experienced Environmental Sustainable Design expert must be submitted and endorsed to the satisfaction of the Responsible Authority.

Prior to occupation of the development, all landscaping works must be [5566917: 6406461_1)

carried out in accordance with the endorsed landscaping plan and be maintained to the satisfaction of the Responsible Authority.

Prior to the occupation of the development a Green Travel Plan must be prepared by a suitably qualified person to the satisfaction of the director of Public. The GTP must:
- (a) Describe the location of the development site in context of alternative modes of transport and objectives for the GTP;
- (b) Outline GTP measures for the development, including, but not limited to:
  - (i) household welcome packs;
  - (ii) possible incentives (eg. provision of Met Cards through rental/ownership of a dwelling);
  - (iii) cycle parking and facilities included; and
  - (iv) GTP management responsibilities, including ongoing monitoring and review.
Once approved the GTP must form part of the Planning Permit or any ongoing Management Plan for the site to ensure the plan continues to be implemented by residents/owners to the satisfaction of the Responsible Authority.

Provision must be made for the drainage of the site to the satisfaction of the Responsible Authority.
All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
Any storm water drainage within the property must be provided and be connected to the nearest Council pit of adequate depth and capacity (legal point of discharge), to the satisfaction of the Responsible Authority.

Prior to the occupation of the dwellings the applicant must submit in consultation with Council approval by the Responsible Authority a waste management plan. Once approved the waste management plan must be complied with. Collection may be undertaken by private contractors or by Council Service.
Rubbish, including bottles and packaging material, shall at all times be stored within the building and screened from external view. All waste collection and recycling collection to be undertaken by private contractors or Council Service between the hours specified in Council's Local Law No. 3.

Before the commencement of any structural works above level one of the buildings hereby approved either:
- (a) a certificate of environmental audit indicating the land upon which the apartment building is situated is suitable for residential use must be issued for that land in accordance with Section 53Y of the Environment Protection Act 1970; or
- (b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land upon which the apartment building is situated are suitable for residential use. This must include:
  - (i) How contaminants identified present on the site are to be removed so that the site is suitable for residential use; and
  - (ii) Management and/remedial measures for their removal, including disposal.

Unless with the written consent of the Responsible Authority, the land subject of investigation for this report is all of No. 203 - 205 Gipps Street, Abbotsford from which former buildings and structures have been demolished or removed.

Before the commencement of the development hereby approved, a certificate of Environmental Audit or Statement pursuant to Condition 20(a) or a written confirmation pursuant to Condition 20(b) must be issued indicating that the land is suitable for residential use.
A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.
The development/buildings and works allowed by this permit must comply with the directions and conditions of any statement of environmental audit issued for the land.
Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirements of the Environment Protection Authority and the Environment Protection Act 1970.
The landowner and all its successors in title or transferees must, upon release for private sale of the parent lot or each of the lots, created by the subdivision, include in the vendor's statement pursuant to section 32 of the Sale of Land Act 1962 annexed to the contract of sale for the sale of the land, a copy of the endorsed development plans, planning permit and statement of environmental audit (together with any later issued certificate of environmental audit) for the land.

The development must only be carried out by a not-for-profit entity for social and/or affordable housing purposes unless otherwise with the prior written consent of the Responsible Authority.

Before any development starts, a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and . approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must provide for or include the following:
- (a) a pre-conditions survey of all adjacent Council roads and footpaths;
- (b) protection works necessary to road and other infrastructure (limited to an area reasonably proximate to the site);
- (c) remediation of any damage to road and other infrastructure (limited to an area reasonably proximate to the site);
- (d) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside the site;
- (e) on site facilities for vehicle washing;
- (f) methods for management of noise and general nuisance;
- (g) site security;
- (h) waste and stormwater treatment;
- (i) construction program;
- (j) preferred routes for trucks delivering to the site;
- (k) parking facilities for construction workers;
- (l) delivery and unloading points and expected frequency;
- (m) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (n) an emergency contact that is available for 24 hours per day for residents and the Responsible Authority in the event of relevant queries or problems experienced; and
- (o) traffic management measures to comply with provisions of AS 1742.3-2002 Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads.

During the construction, the following must occur:

any stormwater discharged into the stormwater drainage system to comply with EPA guidelines;

stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

vehicle borne material must not accumulate on the roads abutting the site;

the cleaning of machinery and equipment must take place on site and not on adjacent footpaths or roads;

all litter (including items such as cement bags, food packaging and plastic strapping) must be disposed of responsibly; and

all site operations must comply with the EPA Publication TG302/92.

The development, once commenced, must be completed to the satisfaction of the Responsible Authority.

Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All - site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.

This permit will expire if:
- (a) The development is not commenced within two (2) years from the date of this permit; and
- (b) The development is not completed within four (4) years from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] References to Clauses within the Yarra Planning Scheme are based on the current Scheme (as amended on 13 August 2009). The parties agreed that C84 was a seriously entertained proposal and addressed us on its provisions.

[3] Working in Collingwood (1987) and End of An Area (2009).

Environment Act 1987

Common Equity Housing Ltd v Yarra CC & Ors [2009] VCAT 1722

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Common Equity Housing Ltd v Yarra CC & Ors [2009] VCAT 1722 (24 August 2009)

Parties

Legislation Cited (3)