Eight dwellings (conversion of first floor of existing two storey building) and for waiver of standard car parking requirements

[2003] VCAT 1765

The order of the Tribunal is that the decision of the Responsible Authority is set aside. The Tribunal directs the Responsible Authority to issue a planning permit in Application 629/2002 for the development and use of the first floor of the existing building for eight dwellings, generally in accordance with the plans substituted at the hearing P1040/2003 on 4 September 2003, and to waive car parking requirements, at 159-163 Carlisle Street, Balaclava, subject to the following conditions:

1 Buildings and works shall not commence until the substituted plans (Revision C Sheets 1 and 4) are further amended to the satisfaction of the Responsible Authority to show:

(i) RLs of existing and proposed floors, ceilings, balconies, parapets and new wall openings;

(ii) practical access arrangements to the service area for storage of bins on the ground floor, having regard to existing grease trap;

(iii) the new balconies to units 2-5 to be provided with pergolas over, instead of `colorbond finished skillion roof over', designed to maximise entry of light into the living areas of those units;

(iv) the form and style of letterboxes to be provided to the north of the Woodstock Street entry door, which is to be annotated as being provided with controlled entry for occupants.

When approved, the amended plans are to be endorsed and will then form part of the permit.

2 The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 All external materials, finishes and paint colours are to be to the satisfaction of the Responsible Authority.

4 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

5 No equipment, services and architectural features other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

6 This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within four years of the date of commencement of works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Ms Andrea Carr, Town Planning Officer, represented the City of Port Phillip.

Mr Martin Verhoeven, Engineer and Town Planning Consultant, represented Mr Guido Conti. He called Mr Russell Fairley, Traffic Engineering Consultant, to provide expert evidence.

The parties made both written and verbal submissions and tendered a number of plans, photographs, and other documents to the Tribunal. All of that material presented is retained on the Tribunal file and has been taken into consideration.

1 This is an application pursuant to s.77 of the Planning and Environment Act 1987 brought by the Permit Applicant to review the decision of the City of Port Phillip on 5 March 2003 to refuse a permit for the development and use of the first floor of the existing building at 159-163 Carlisle Street, Balaclava for eight (8) dwellings, and the waiver of standard car parking requirements, as submitted in Application No. 629/2002.

2 These written reasons are intended to reflect those reasons given by me at the conclusion of the hearing on 4 September 2003, when I delivered my oral decision that a permit was to be issued subject to conditions.

1. The proposal fails to provide adequate car parking.

2. The proposal will adversely impact on the amenity of the surrounding area.

3. The proposal fails to suitably respond to relevant requirements of the Local Planning Policy Framework (LPPF) of the Port Phillip Planning Scheme, including the Municipal Strategic Statement (MSS).

4 The grounds for review were set out by letter to the Registrar dated 23 April 2003 as follows:

1. The location of the site with public transport by trams and trains in close proximity justifies the development of the site from the intensive factory use that originally occupied these premises as discussed in our Traffic Officer's (sic Consultant's) report.

2. The proposal we believe will conversely improve the amenity of the surrounding area and provide an excellent standard of accommodation in this well located position.

3. The location of the site for the development proposed we believe will fall within the Port Phillip and (sic) Local Planning Policies when examined on a positive basis.

These grounds will be expanded at the forthcoming Application for Review.

5 The review site is located on the south side of Carlisle Street on the east corner of Woodstock Street. The plans show it has a frontage of 17.85 metres to Carlisle Street and an abuttal (depth) of 34.49 metres to Woodstock Street, and a site area of 612 square metres.

6 It is situated in the middle of the Balaclava retail strip which extends from Chapel Street to well east of the railway line.

7 The property is adjacent to and opposite a wide range of retail and associated activities in Carlisle Street, while the area immediately behind the retail frontages generally comprises commercial buildings and public car parks, along with some residences.

8 The site is currently developed with a two storey brick building which occupies the entire site. The ground floor is occupied by two retail premises (a butcher shop and a fruit shop) which both have store and cool rooms behind. They rely on loading access from the side street and the rear lane.

9 The first floor is presently partly used by the ground level tenants for storage and staff amenities, with access gained by a spiral staircase and standard stairs, which will be removed as a consequence of this proposal proceeding.

10 The site is very well served by public transport including tram services in both Carlisle and Chapel Streets, and the Balaclava railway station a short distance to the east. There are a number of off-street car parking areas, in addition to a range of on-street car spaces with different periods nominated.

11 At the commencement of the hearing Mr Verhoeven formally applied for the substitution of amended plans (drawings by Plan Printing and Drafting Pty Ltd, Sheets 1, 3 and 4 of 7, Revision C dated 3 July 2003). The Tribunal had received these plans with a covering letter dated 30 July 2003 which summarised the changes, and copies had been provided to the other parties, and relevant notices sent to the other persons on whom the original application had been advertised.

12 There was no objection to the substitution of these plans by the other parties, and I granted the request for substitution of the amended plans pursuant to Clause 64 of Schedule 1 of the VCAT Act, noting that the variations made were purported to be in response to suggested modifications by Council officers.

13 The proposal does not appear to me to greatly affect the ground floor users.

14 The single point of entry off Woodstock Street leads to all eight dwellings and utilises one of the three existing staircases between ground and first floor.

15 The amended scheme involves four single-bedroom dwellings, three two-bedroom dwellings and one `bedsitter' dwelling, each with a balcony. The apartments are built around a central lobby area which is open to the sky. Four apartments face north towards Carlisle Street, and in addition to their balconies behind the existing building façade, it is proposed to extend them 1.5 metres outwards over the existing verandah which shelters the footpath area past the shops. The three units which face west towards Woodstock Street have their 1.6 metre wide balconies behind that façade, while the eighth apartment has its balcony facing south with new openings in the existing perimeter wall created by the proposal.

16 The apartments vary in floor area from 32 square metres (Unit 7 - bedsitter) and 44 square metres (Unit 8 - 1 bedroom) to 79 square metres (Unit 2 - corner unit with two bedrooms). The five remaining units are all between 61 square metres and 67 square metres. Each balcony has a minimum area of 8 square metres, and the plan incorporates notations about double glazing, skylights and sealing of openings in specified units and general insulation intended to achieve desired energy ratings.

17 In terms of the three streetscapes, the frames of existing first floor windows facing Carlisle Street are to be removed and new balconies formed which extend 1.5 metres northwards from the building façade, with solid balustrades with a pergola over, to maintain and maximise the opportunity for daylight and sunlight to reach inside the balconies and living rooms beyond.

18 Along Woodstock Street, new powder coat finished aluminium framed windows are to replace six of the existing windows, and the two southernmost windows are to be made into balcony openings with solid balustrades. The existing parapet above the existing roller door (used as the loading dock for the corner butcher shop) is to be slightly lowered to a height of one metre above the future new floor level, which I understand to be 540mm higher than the existing first floor level of the southern building and 720mm higher than the existing first floor of the larger northern building.

19 I have not undertaken a site inspection of the upper first floor existing areas and cannot find on the plans any existing or proposed RLs of existing ground floor, or both first floor levels on which tenancies 2 and 3 have been shown as connected by a ramp rising 400mm. The absence of such existing and proposed levels of floors and ceilings to a nominated level datum makes it most difficult to get a clear understanding of the works planned to both floors and ceilings. I note Sheet 4 indicates `new raised floor level' several times by reference to dimensions of 540mm and 720mm above `existing floor level' as well as to `new ceiling level' being 380mm below the existing. None of the plans supply existing RLs although Sheet 6 shows on `first floor level existing conditions' diagram, a `ramp up 400(mm)' between two tenancies. I also note on Sheet 1, `Proposed Conditions' (for the first floor) the notation `provide three new risers to existing stairs', in addition to the two treads shown in the passageway between Units 1 and 6 to reach the `open lobby (no roof)' level which seems to me to be at the same RL as Units 2-5.

20 I have directed in my order, reduced levels (RLs) to a datum to be nominated be added to plans which are then to be endorsed pursuant to the permit, of proposed floors, ceilings, balconies, parapets and new wall openings being created. This would avoid ambiguity and assist all parties in reading the plans to understand them.

21 Finally, a new canopy above a newly finished entry doorway off Woodstock Street is shown on the plans, together with provision for letterboxes nearby, with the choice of materials to be finally settled with the Responsible Authority.

22 Garbage bins are proposed to be kept within a small `service area' which is to be created behind one of the existing roller doors which is to be retained for exterior access and collections. Sheet 1 of Plans Revision D tabled at the hearing, bears the notation `provide access to existing grease trap' whereas this note does not appear on the substituted Revision C drawings which also show different alignments for several walls in this location. The implications are not clear to me, and need to be addressed by the Responsible Authority with the Applicant before endorsement.

23 The site is located in a Business 1 Zone, and no planning permit is required for the purpose of a dwelling (so long as the proposed frontage is less than two metres at ground level), however a planning permit is required for buildings and works pursuant to the provisions of Clause 34.01-4.

24 Clause 65, the State and Local Planning Policy Frameworks, the Municipal Strategic Statement, Local Planning Policies, and the objectives, standards and decision guidelines of Clause 55 are all relevant considerations along with a nominated series of factors needing consideration as appropriate, set out in Clause 34.01-4 as follows:

* The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.

* The interface with adjoining zones, especially the relationship with residential areas.

* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road.

* The storage of rubbish and materials for recycling.

* Defining the responsibility for the maintenance of buildings, landscaping and paved areas.

* The design of buildings to provide for solar access.

25 There are clearly many local planning policies and these were comprehensively quoted in the written submissions presented by Ms Carr, with the key issues of Clauses which Council deemed to be relevant to this decision, being highlighted in bold type in her written submissions. These clauses included the following:

26 I will not attempt to repeat much of what was quoted by Ms Carr, as her written submissions with highlighted passages remain on the record on the Tribunal file. However I will refer below in these reasons, to various key aspects of these clauses, and to several of the policies, strategies, and objectives sought to be achieved.

27 Ms Carr properly pointed out that Clause 34.01-4 of the scheme provides decision guidelines which the Responsible Authority is required to consider when deciding on an application for buildings and works within the Business 1 Zone and these include the objectives, standards and decision guidelines of Clause 55 notwithstanding that the provisions of Clause 55 are applicable only to medium density residential development within the Residential 1, Residential 2 and Mixed Use Zones. She also provided me with her assessment of the compliance level of the proposal with each of the objectives and standards within Clause 55, highlighting where she considered that the proposal failed to meet the objective or standard.

28 Mr Verhoeven acknowledged that while the clauses identified by Ms Carr were relevant, he also argued that Clause 21.05-11 - Traffic and Transport, was particularly relevant, in fact promoting the use of public transport and cycling, and specifically relevant for any application that seek a dispensation in car parking, stipulating that a detailed parking analysis needed to be provided. One had been supplied in the subject application.

29 It was noted that the site is located within the East St Kilda Neighbourhood as identified within the MSS, and that the Balaclava Centre is designated as a Neighbourhood Retail Centre on the Strategic Land Use Map with Clause 21.05-8 seeking to `encourage mixed commercial and residential developments in appropriate locations' in the East St Kilda Neighbourhood.

30 Mr Verhoeven highlighted to me, that Clause 21.05-10 - Retail Land Use, includes the stated objective of Port Phillip Council `to support residential land use and development above and behind shop premises and in proximity to retail centres to support economic activity_, environmentally sustainable living_ and maximum use of public transport infrastructure'.

31 He also argued with some effect, that this particular objective is reinforced by reference to Clause 22.02 - Retail Centres Policy, where specifically for the Carlisle Street Centre the following relevant policies are set out:

* Encourage new residential development above and behind retail frontages to Carlisle Street to take advantage of the area's proximity to public transport and other services.

* Encourage strong convenience retailing including continental and kosher goods.

* Preserve the extensive off street parking facilities at the rear of the shops.

* To respect the predominant 2 storey scale of buildings in the retail area.

32 Having regard to the competing arguments advanced by both Ms Carr and Mr Verhoeven, I expressed the view at the hearing that it appeared to me that there was sufficient strategic and policy justification for a planning permit to be granted for the style of redevelopment of the subject premises in the manner proposed on the substituted plans.

33 I noted and accepted that the Council's Heritage Adviser had made comments regarding certain external aspects of the proposed building, and that the modified plans incorporated the Adviser's recommended changes to the entry, external balconies and streetscape appearance.

34 It was obvious to me both during the hearing and by inspection of the photographs and plans tendered by the parties, that access to the eight dwellings was significantly constrained to one access point with one staircase providing access and egress, with proposed passages providing pedestrian circulation to each apartment within the upper floor of the existing building. After rereading the officer's report, and giving consideration to the arguments advanced by Ms Carr relating to her opinion on the extent of compliance of the proposal with the objectives and standards in Clause 55, I nevertheless formed the opinion (which I then stated at the hearing), that subject to finalising conditions which needed to be framed following the hearing, and further inspection of the plans in greater depth, it was appropriate that a planning permit be issued for the proposal.

35 The first of the three grounds given for the refusal was that the proposal failed to provide `adequate car parking'. It is clear that no car parking spaces have ever been provided in the past for the existing or former uses on the site, as the existing building totally occupies the entire site. It is equally obvious that it is impractical to demolish part of the building to provide any car parking facilities without significant impact on the ground level floor uses.

36 I gave consideration to the empirical assessment made by Mr Fairlie, and personally made several inspections of the area both during the daytime and at night following the hearing. I am satisfied on reading the report by Mr Fairlie that he has taken into consideration the necessary aspects set down for the Responsible Authority and this Tribunal upon review, when giving consideration to an application seeking a waiver of car parking spaces. His opinion was that the proposed residential units would be expected to generate a peak parking demand of only approximately four spaces (both residents and visitors) having regard to the excellent almost exceptional access to a range of public transport services and nearby commercial and community facilities such that the site is well located and likely to minimise the need for residents to own private vehicles. He also had regard to a likely parking credit which he conservatively stated would be eight spaces generated by the former use of the upstairs area. Whereas reference was made to another application under consideration to the immediate south of the subject land over the parcel currently used for community parking, I was not persuaded that my decision should necessarily be made to reflect a possible outcome of that application whereby some of the existing car spaces off street may be lost.

37 I accept his opinion and concur with his conclusion, that the maximum number of vehicles which might reasonably be expected to be generated by the proposed eight apartments at those times when parking spaces on and off-street in this neighbourhood are in greatest demand, should be able to be accommodated in locations within walking distance from the review site.

38 I record that the Responsible Authority did not introduce any contrary expert evidence, or even call one of the Council officers with responsibility for assessing such proposals in terms of traffic generation, and movement within the neighbourhood, in support of their contention that the proposal should be refused on the basis of inadequate parking being available in the area.

39 The second ground for refusal related to the perceived potential adverse impact which would be the result of this development proceeding on the amenity of the surrounding area and its residents. I understand this ground related to the prospect of increased traffic volumes and carparking problems being exacerbated. I was not convinced by the arguments advanced on behalf of the Responsible Authority, or the neighbouring objector Mr Fitzgerald, that there would be any loss of amenity by reason of overlooking, or through the generation of additional cars seeking car spaces in the area.

40 The Responsible Authority failed to provide to the Tribunal or the Applicant prior to the hearing, a set of draft conditions as required by the Tribunal Practice Note. I directed Ms Carr to arrange for such draft conditions during the luncheon break in the hearing, and she tabled a set for discussion after the adjournment.

41 These draft conditions did not propose any alterations to the design or the substituted plans. For reasons which I have set out above, I have added a condition requiring modifications to be made to the plans to add additional level information, and following the suggestion made by Mr Verhoeven which was also discussed with Ms Carr, to alter the roofs of the balconies to Units 2-5 so that they are provided with pergolas instead of skillion roofs, and that such pergolas are to be designed to maximise entry of light into the living areas of those units.

42 I have also required the plans to be amended to identify the form, location and style of letterboxes to be provided to the north of the proposed future entry door and to provide controlled entry for residents of the proposed dwellings, and for the garbage bin receptacle area to be designed to respect the existing grease trap which apparently has some significance for the ground floor uses.