Victorian Civil and Administrative Tribunal|2003-06-30|Before: Cotham Road P, Enviro P

Cotham Road Pty Ltd v Boroondara CC [2003] VCAT 795 (30 June 2003)

Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time. Permit Application No. PP02/00438. Residential 1 Zone. Environmental Audit Overlay. Clause 52.29 Land Adjacent To A Road Zone. Retirement Village (100 dwellings in 4 Storey buildings). Irregular Site (Frontage 88.89 metres, Area 9234 square metres). State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape. Back yard amenity. Amenity of public open space. Amenity for future residents. Landscape. Loss of established trees. Density. Building envelope. Private open space. Energy efficiency. Overshadowing. Daylighting. Privacy. Car parking, Traffic.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a retirement village at 376-378 Cotham Road, Kew generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit subject to any anemndments approved under Condition 2. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans prepared by Catt Architects numbered TP01A, TP02A dated 28 August 2002 and TP03B, TP04B, TP05B, TP06B, TP07B, TP08B, TP09B, TP10B, TP11B, TP12B, TP13B, TP14B, TP15B, TP16B and TP17B dated 14 March 2003, but modified to show:

s Building D being reduced in height by one storey by the deletion of the second floor;

s The various setbacks of Building E, from the south boundary of the site, being increased by 2 metres;

s The south wall of Dwelling B3.02 in Building B being relocated 4 metres northwards;

s Any amendments to the internal layout of the proposed buildings intended to reduce the loss of dwellings consequent on the amendments set out above;

s Amendments to main entry layout shown on Drawing TPD20;

s Amendments to building to shown on Drawings TPD09-TPD13, to accommodate the concerns of the operator of the adjoining telecommunications mast;

s Landscaping generally in accordance with the plan by Landarche (Drawing LA01 REVD) modified as appropriate having regard to the recommendations of Mr. Alan Wyatt in his report to Victorian Civil and Administrative Tribunal in Application For Review P2889/2002 and including additional planting along the south boundary of the site in the increase setback required above and the specification of all paving materials;

s The privacy measures recommended by Mr. Phillip Borelli in his report to Victorian Civil and Administrative Tribunal in Application For Review P2889/2002;

s Any acoustic measures required to reasonably protect future residents from plant noise associated with the adjoining reservoir;

s All security gates affecting vehicular driveways being setback at least five (5) metres from the frontage of the site;

s Any measures consequent upon the energy rating of the dwellings or of the waste management plan;

2. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3. The use of environmentally sustainable measures in the development and operation of the proposed use generally in accordance with the recommendations of Enviro P/L to the satisfaction of the Responsible Authority.

4. Before the development commences, the applicant must satisfy the responsible authority that each of the dwellings can achieve at least a 4 star energy rating using the Sustainable Energy Authority's "First Rate" system or equivalent.

5. Security gates affecting the vehicular driveways shall be open between 7.00am and 7.00pm unless different access measures are implemented with the further consent of the Responsible Authority.

6. An in-ground sprinkler system must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.

7. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

8. Temporary barricades to protect trees to be retained must be erected around such trees, to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

9. The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained prior to the commencement of the related construction tasks.

10. Without the prior written consent of the Responsible Authority:

(a) No goods, materials or stockpiling of fill is to be stored or vehicles parked within the drip line of any tree to be retained;

(b) No excavation, trenching or soil removal is permitted within five metres of any tree to be retained.

11. The permitted use and development must not commence until the owner of the land enters into an agreement with the Responsible Authority pursuant to the provisions of Section 173 of the Planning and Environment Act 1987 (registered pursuant to the provisions of Section 181 of the Planning and Environment Act 1987) in which it shall be covenanted as follows:

(a) Except with the consent of the Responsible Authority all residential units must be used for retired living units, must be used as part of the retirement village and must be occupied only by persons who have attained the age of 55 years or retired from full employment, or who is the spouse or domestic partner of such a person or who is the surviving spouse or domestic partner of such person who has died on the basis that "domestic partner" for this purpose means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the mutual benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support or personal care to the person for fee or reward or on behalf of another person or organisation including a government agency, body corporate or charitable or benevolent organisation or a person holding a full time management position in the retirement village, or a person engaged for the care of a resident in need of care.

(b) That the requirements contained in this agreement shall form part of any lease of the premises which the owner of the land under this permit may enter into with another party.

(c) The owner of the land under this permit shall pay the legal costs and be responsible for the preparation and registration of the said agreement.

12. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

13. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

14. Prior to the commencement of the use, details of any car park control equipment (controlling access to and egress from the internal/basement car parks) must be submitted to, and approved in writing by the Responsible Authority. These details must include a car park control device which can be accessed by visitors to the development including clear instructions on how to operate any security system, to the satisfaction of the Responsible Authority.

15. Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;

(e) Clearly marked to show the direction of traffic along the access lanes and driveways;

16. Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

17. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

18. Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channeling and the affected nature strip, to the satisfaction of the Responsible Authority.

19. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and must be connected to a registered security service.

20. All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

21. Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to each of the uses on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority. The plan may be amended from time to time to the satisfaction of the Responsible Authority.

22. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

23. Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works 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) hours for construction activity in accordance with any other condition of this permit;

(b) measures to control noise, dust, water and sediment laden runoff,

(d) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;

(e) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(f) contact details of key construction site staff,

(g) the location of any site sheds and the like; and

24. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

25. No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

26. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

27. Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant authority.

28. The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.

29. Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

30. Prior to the occupation of the permitted buildings, access for disabled persons must be provided to the site and buildings. All work carried out to provide such access must be constructed in accordance with the relevant Australian Standard for such access and mobility.

(a) The development and use does not start within two (2) years of the issue date of this Permit; or

(b) The development is not completed within four (4) years of the issue date of this Permit, or six (6) if the development is staged.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Chris Townshend, Barrister appeared on behalf of the Responsible Authority. Mr. Townshend called Mr Craig Czarny, Urban Designer as a witness in support of his submissions.

The following Respondent Objectors appeared on their own behalf and in some cases on behalf of their families and other Respondent Objectors:

Mr Ian Pitt SC appeared on behalf of the Applicant for Review. Mr Pitt called Mr Gary Catt, architect, Mr Greg Tucker, traffic engineer, Mr Dean Simonsen, arborist, Mr Alan Wyatt, landscape architect, Mr Paul Williams, business manager for Thornley Properties Pty Ltd, and Mr Phillip Borelli, town planner, as witnesses in support of his submissions.

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in relation to a permit application for a retirement village comprising 100 dwellings on a large site in Cotham Road, Kew, located a short distance west of the intersection of Cotham Road and Burke Road. The Responsible Authority ultimately decided that had it not been for the application for review it would have issued a notice of refusal to grant a permit for the following reasons:

* The proposal fails to adequately respond to the context of the area in terms of scale and bulk.

* The proposal will appear bulky, dominant and inconsistent with the scale of the existing landscape, particularly when viewed from Daracombe Avenue, across public parkland and residential areas surrounding the site.

* The scale, bulk and setbacks of the proposal fail to appropriately address the interface with adjoining residential properties to the east and south of the site.

* The proposal's narrow setbacks to the side and rear boundaries and the extent of proposed basement car parking does not provide sufficient opportunity for planting with canopy trees and trees with spreading crowns.

* The proposed landscaping plan does not provide sufficient canopy trees and trees with spreading crowns to support integration of the proposed development with the treed character of the neighbourhood.

* Internal amenity in terms of overshadowing and overlooking within the proposed development is compromised by a lack of separation between buildings.

* The proposal fails to promote energy efficiency as a result of poor solar orientation that ignores opportunities for north facing widows and living areas.

* The proposed communal open space is poorly located within the proposed development and not of a size and configuration that is likely to meet the needs of the residents.

* Pedestrian and vehicle access arrangements are poor having regard to the likely mobility needs of residents and their visitors.

2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality, and in particular viewed the site from all of the adjoining and opposite residential properties.

3. The following extract from Mr Townshend's submission provides a suitably brief description of the site, the locality and the proposal:

"1. The Subject Land is located on the south side of Cotham Road, commencing approximately 49.09 metres to the west of Burke Road intersection. The subject land has a frontage to Cotham Road of 88.89 metres. Cotham Road is a declared main road in a Road Zone Category 1.

2. The Subject land has an overall area of 9234 square metres. The block is irregular in shape.

3. The Subject Land is encumbered with a two metre wide easement along part of the western boundary.

4. The Subject Land has a maximum depth of 103.32 metres on the eastern boundary and 61.27 metres on the western boundary.

5. The Subject Land contains the former administrative offices of Parks Victoria comprising a large three storey office building, various other small single storey buildings and a gravel hardstand car park abutting the west boundary.

6. The Subject Land is located at the crest of a local hill. Cotham Road slopes markedly downward in front of the land from west to east.

7. The planning officer's report to Council dated 26 November 2002 describes the surrounding land as follows:

Predominantly residential properties comprising of larger one and two storey interwar houses. Non-residential uses include the Christian Blind Mission International which is located behind a high cypress hedge on the north-west corner of Cotham Road and Burke Road and Genazzano College to the north-west of the site.

Reservoir Reserve is public open space to the rear of the subject site that includes a playground, barbecue facilities and landscaping. Garden beds planted with semi-mature native vegetation are located close to the boundaries of the proposed development site. It is noted that six single storey brick dwellings (Cavendish Court") are located at No. 1219 Burke Road, to the immediate south of No. 1221 Burke Road that accommodates the Edwardian dwelling currently on the development site mentioned above.

Two storey 1970s brick building with mansard-style roofing accommodating the Pathfinder Motel at 380 Cotham Road. The site is elevated above both Cotham Road and Burke Road on which corner it is located. The building is setback approx. 4m from Cotham Road and is planted with ground covers and low shrubbery on a battered slope. A row of parking spaces and vehicle entry access abut this boundary Other abutting properties to the east comprise of the rear yards of one and two storey single dwellings addressing Burke Road.

Water storage facility operated by Melbourne Water bounded on all sides by mature cypress trees. Beyond this is the Kew Traffic School which is located on the corner of Grange Road.

Telecommunications tower and a substation. Whilst this site is on a separate Title, it is not currently fenced off from the proposed development site and is located at the rear of the car park abutting the water storage facility and the park land.

8. The permit application seeks approval for a multi-storey retirement village on the subject land.

The following overview of the proposal is taken from the Officer's Report:

s Group of five 4 storey buildings and two 2-3 storey buildings.

s 100 dwellings comprising of 28 ground floor units, 30 first floor units, 26 second floor units and 16 third floor units.

s Dwellings range in size from 95-128 sqm with some upper level dwellings of 177 sqm.

s 2-3 bedroom units with the larger dwellings having an optional fourth bedroom-cum-study.

s East basement car park includes 109 spaces and 25 storage spaces.

s West basement car park includes 54 spaces including 14 spaces in tandem.

s Two visitor spaces are provided at the rear of Building A.

s Two vehicle access points including the existing access to Cotham Road (relocated) as well a new crossover to Cotham Road located towards the northern boundary.

s Orientation of some dwellings to the abutting parkland.

s Site coverage purported to be 54.8% (Source: Planning Assessment Report).

s Site permeability will be 23% compared with the existing 59.2%

s Perimeter landscaping with planting in the ground and within boxes incorporated throughout the site.

s Staging of the development has not been determined as yet however, the Applicant, has indicated that communal facilities would be included as a component of the first stage.

s Subdivision of the site is anticipated in the future.

s Resident facilities and services are based in the main building (Building A) to Cotham Road. This building is the existing office building on the site which is to be refurbished and a fourth level (containing an observation lounge) added. Facilities noted on the plans include a gymnasium, lap pool, lecture theatre, kitchen, dining room, lounge areas, craft/games room, library/computer room and a hair salon. There appears to be no provision for on-site or visiting health/medical services and no information was provided with respect to proposed staffing levels."

4. For the purposes of this decision we believe that the issues raised during the course of the hearing can be usefully discussed under the following broad headings:

* The impact of the proposal on the streetscape of Cotham Road;

* The impact of the proposal on abutting residential properties and the Reservoir Reserve;

5. The subject land is an atypical site in the broader context of residential Kew, relevant characteristics of the site are:

* The historic use of the site for an office purpose;

* The frontage of the site onto a main road and its proximity to two tram routes, and several bus routes which provide a high level of accessibility to community and commercial facilities;

* The character of the Cotham Road streetscape which on the south side between Burke Road and Grange Road incorporates a motel, the Yarra Valley Water Reservoir, and the Kew Traffic School, in addition to the subject land;

* The relatively limited abuttal to the site to sensitive residential properties.

6. Some appreciation of the implications of these characteristics on the relationship of the site to the surrounding area is evident when one considers the illustration entitled "Urban Character" prepared by Mr Czarny as part of his evidence (the illustration is to be found between pages 5 and 6 of Mr Czarny's statement of evidence). The site can be seen to sit apart from the relatively homogenous residential areas of Kew to the north and south.

7. Mr Garde in his submissions analysed Melbourne 2030, and argued that the subject land could not properly be regarded as a strategic development site (ie. A site in or near an activity centre or a major redevelopment site) and that therefore the site has not any higher status than any other infill site in a Residential 1 Zone. We agree that this is in a sense correct, but it is also true that this is not a conventional suburban residential lot within a residential street in Kew and it must be recognised that Key Direction 1 of Melbourne 2030 provides that in the eastern region some 45% of new households are to be "dispersed urban and non urban development", that is essentially infill development. In this regard we are of the view that the characteristics of this site are an important consideration vis a vis the characteristics of more conventional infill sites within the residential environs of areas such as Kew, when considering the capacity of the site to contribute to the achieving the housing goals of Melbourne 2030.

8. Planning policies which encourage the provision of new housing, and diverse housing types, within established urban areas, are commonly grouped together under the descriptor of urban consolidation. These are important policies based on a variety of demographic social environmental and economic trends within our community. Another important aspect of planning policy is the need to respect neighbourhood character in the redevelopment of established urban environments. There is inevitably a tension between these policies which must be resolved on a case by case basis. In our view it is also inevitable that the way in which the balance is struck between these competing policies on a large atypical site such as the subject land must be different to that which is struck in relation to an infill development on a conventional suburban lot in a conventional suburban street.

9. Ms Baird in the Bombardieri v Darebin City Council and Anor [2002] VCAT 187 was dealing with a proposed residential redevelopment of a large industrial site within a residential area. In many respects the land in the Bombardieri case was more sensitively located than the subject land vis a vis the surrounding residential neighbourhood, Ms. Baird's observations in that matter are of relevance to the decision we must make in this matter, i.e.:-

33. Policy at Clause 21.11 is to "promote the importance of facilitating a range of housing styles and densities in appropriate locations". In the absence of overlays or local policies that would guide a particular design outcome, respecting neighbourhood character cannot be fairly interpreted as having to simply replicate lot sizes (or housing forms) in the immediate area.

37. In contemplating whether the proposal is acceptable in terms of the degree of change it would bring, and making the above findings, I give considerable weight to the former use of the land for non-residential purposes and the existing condition of the land. This is in addition to the policies of the Scheme I have referred to above. I understand that local residents may not necessarily support the view that the large land holding, its former industrial/manufacturing use and existing building forms, gives latitude for an intense development outcome. However, it is valid that the size of the site allows a more intense development at those points where off-site impacts are minimised or negligible. As manufacturing and other industry in some parts of Melbourne declines, sites are becoming available for conversion to residential use. The residential re-use of such sites is specifically sought; and is often favoured for their ability to take re-development pressure off established areas where intense infill housing forms could be particularly intrusive or inappropriate. While I agree with the Applicants for Review that this is not an isolated site, in so far as it adjoins residential properties and sits within an otherwise established residential precinct, the existing site condition is a valid base for assessment.

55. The approval of this proposal does not, in my view, contravene any proper process or orderly planning. A site of this size, no matter how developed, will take on a character of its own simply because it involves a significant number of new houses constructed at a later time than those presently around it. That it is located outside the Character Areas identified in the Urban Character Study is not a reason to prevent a development proceeding. Moreover, that an attached housing form may be acceptable given the circumstances of the subject site does not mean that a similar solution will be appropriate on smaller and/or infill sites in other streets within the established residential area.

10. It follows from the above discussion that it is our conclusion that the size, location and characteristics of the site make it an important site upon which development should be optimised as far as is practicable to achieve urban consolidation objectives, and that from a neighbourhood character perspective there is considerable scope for a scale and intensity development, quite different to that found elsewhere in Kew residential areas and that the key limitation of the development potential of the site is its impact on the streetscape of Cotham Road, and its interface with the sensitive residential properties to the east and south of the land, and to a somewhat lesser extent its interface with the Reservoir Reserve.

11. Mr Pitt argued that the proposed retirement village specifically addresses an important housing need within the local community, and in making this submission he relied in part on the decision of another division of this Tribunal in 1999/022775 Retirement Services Australia Pty Ltd v Boroondara City Council, a relevant extract of this decision is set out below:

72 Dr Howe's evidence was that Boroondara's " ....large absolute size of the current aged populations.... is at the base of the demand for a diversity of housing forms of retirement housing...." and " The great majority, if not all, residents are likely to be drawn from the local residential population". Given the high proportion of aged persons in the municipality, that it is unlikely that many of these persons will have access to accommodation in hostels due to either their income or asset levels, and the social benefits associated with providing housing specifically designed to cater for the physical needs of aged persons within this municipality, the Tribunal accepts Mr Morris' submission that this proposal addresses a specific housing need generated by the local community and provides benefits to that community. (Our emphasis)

12. It was argued on behalf of the Respondent Objectors that need should not be seen as a factor which favours approval of this particular project, for example it should not be seen as a factor which would influence the balance to be struck between competing planning policies such as urban consolidation and neighbourhood character. The basis of this submission was that the present project is a commercial project being pursued for the commercial benefit of the developer company, and that there are at present a number of similar facilities presently being promoted within the same "catchment" of the subject land.

13. We do not agree with these submissions, and we adopt the approach taken by the Tribunal in the Retirement Services Australia Pty Ltd case referred to above. The fact that the present project is a commercial venture is not relevant to the question of need. All housing, other than public housing, is developed, brought and sold on a commercial basis, indeed the real estate market is an important aspect of the national economy. The need for a particular type of housing, or housing which is directed at the need for a particular group in the community, may be responding to a need of a type which could be a relevant factor in a planning decision. Indeed, if the Permit Applicant's commercial judgement is sound, its willingness to develop this highly specialised form of housing is an indicator itself of the need for housing for this particular group in the community. The existence of other similar developments are themselves merely evidence of the market's response to the existing and developing demography of this locality. Furthermore, it could be said that the relative homogeneity of residential environments within Kew is itself an indicator of the need for more diverse housing types responding to the considerable changes in demography now evident. In our view the need which exists for facilities such as this supports the conclusion we reached in paragraph 10.

14. Turning now to the sensitive interfaces between the proposed development and the surrounding environment:

* In the proposal there are two buildings which front directly onto Cotham Road. These buildings are predominantly three storeys in character. Building A is derived from a redevelopment of the existing office building fronting Cotham Road, and is intended to contain the community facilities provided for the future residents of the retirement village, and includes a small lounge as a limited fourth floor level centrally located on the building. Building H, the other three level building fronting onto Cotham Road, contains apartments and includes the entry into the at grade car parking. It is true that the frontage setback proposed for these buildings is less than any of the residential properties on the north side of Cotham Road proximate to the site, just as the scale of these two buildings is greater than nearby residential properties. However, as we have already observed the streetscape on the south side of Cotham Road between Burke Road and Grange Road is not a typical residential streetscape, in our view the proposed building respond appropriately to their own context and the setbacks although limited are sufficient to provide an appropriate landscape setting for the buildings. It is interesting to note that this conclusion is supported by the Responsible Authority's own in-house urban designer, and by its witness Mr Czarny. It is true that some of the taller four level elements proposed behind these front buildings, will be visible from parts of Cotham Road, and to a lesser extent from parts of Darracombe Avenue, by way of oblique views primarily through the central driveway entrance. A person in the immediate environs of the site will be aware that towards the interior of the site there are buildings which are four storeys high. It is difficult to see how this awareness could constitute a loss of amenity, or in any significant way change one's perception about the character of the established residential areas of Kew.

* There are three large two storey detached dwellings fronting onto Burke Road whose rear boundaries adjoin the subject site. Buildings C and D abut these rear boundaries, and adjacent to the boundary are two storey buildings set back approximately 4 and 5 metres from these rear boundaries. Building B has an oblique relationship with the rear boundary of the dwelling at 1225 Burke Road, and adjacent to the east boundary of the site this building rises to three levels setback approximately 4 and 5 metres from the boundary. All these buildings rise to four storeys, with the third and fourth levels being setback approximately 14 metres from the east boundary. The effect of this design is that it will be two storey buildings which will feature most prominently in the view from these back garden spaces with the fourth level being partially visible over the top of the two storey structures. The 4 to 5 metre setback creates a good space within which to create a landscape buffer along the east boundary of the site. There is no doubt that the construction of those buildings will considerably change the outlook from these rear garden spaces, nevertheless, the articulation of the building, the break between buildings, the very substantial setbacks to the higher elements, and the existing and proposed landscaping will all act to moderate the visual impact of the proposed development. On balance we are of the view that the impact of the proposal on these properties is within reasonable limits having regard to the broader planning policy framework. In relation to the proposed landscaping, Mr Wyatt in his role as a reviewer of the landscape plan has suggested some changes which we think are worthwhile, and in relation to building B we think that part of the south eastern corner of that building should be reduced in height to two storeys to moderate the visual impact of that building to no.1225 Burke Road.

* No. 1219 Burke Road is a deeper lot which extends across part of the south boundary of the subject land. This property contains six single storey "villa unit" style dwellings, with the common access driveway running along the north boundary of that site. The dwellings towards the rear of no.1219, have an outlook towards proposed building D which has already stated is a building which rises to four levels, level three is setback approximately 6.5 to 7 metres from this southern boundary, while level 4 is setback approximately 9.5 metres. While these setbacks are substantial, the reality is that for these properties they will have a largely uninterrupted view of a substantial four storey building. While we are of the view that as for the other Burke Road properties the planning policy framework contemplates a relatively intensive development of the site and therefore a significant change in outlook from No. 1219 is to be expected, it is nevertheless true that from this perspective the four storey structure is not seen behind lower building elements. For this reason seen from this perspective we believe that the mass of the building is too large and it should be reduced in height by one level. Our approach to this would be to require the redesign of the building by in effect removing level three and making what is presently proposed as level four the third level.

* The proposed development will be clearly visible from Reservoir Reserve, and there will be more distant views to the proposed development from Grange Road and Mountain Grove. The existing land from these perspectives is effectively vacant, so therefore there will be a significant change to the existing condition as a consequence of this relatively intensive development. However, the mere fact that you can see the buildings across the park is hardly a significant adverse consequence, in fact, the heightened level of passive surveillance of the reserve will be an incidental benefit of the proposed development. Nevertheless, we are of the view that building H is too close to the south boundary of the site, that is one of the sites boundaries with the reserve, for a building of its scale and we require that the buildings setbacks from the south boundary be increased by 2 metres.

15. There was considerable criticism of the amenity consequences of the design for future residents. In many respects these criticisms were seriously overstated, and to the extent that there are less than perfect outcomes in some areas, they are at the worst merely the compromises which are necessary in the resolution of any design for a project of this scale. Specifically we observe that:

* There will be a number of south facing apartments, this is something which is difficult to avoid in any large scale project, and in our view the percentage of dwellings which are south facing is small, and that design has been well resolved in this regard.

* The communal open spaces are primarily paved circulation spaces, but this is hardly unreasonable given that every apartment will have its own terrace, and many will have a wintergarden in addition to the open terrace. The communal spaces will provide a very attractive landscape setting for the buildings and do provide spaces for residents to gather in a sunny spot.

* Four storey buildings will result in overshadowing of the communal open space areas at various times of the day, but at the equinox there will be always some part of the communal space which is sunny.

* There are some spaces in the developments which would be shared by both vehicles and pedestrians, in this case these areas are generally limited to the entrance and the space behind the communal facilities building. There is no reason to believe that subject to quite ordinary standards of care these spaces cannot operate safety.

16. The car parking provision on site is very generous, both in terms of the number of car spaces, and in terms of the spacious layout of the car parking areas. There were submissions that visitors to the complex would be likely to park in local residential streets and that this would result in a loss of amenity. In our view the location of the site and the generous provision for car parking on site makes this highly unlikely.

17. There was also considerable concern about the traffic implications of the project. In spatial terms the two vehicular entry/exits are appropriately designed. Nevertheless, access to and from the site is onto a moderately busy main road and is to an extent less convenient than might have been if the site had fronted onto a local or collector street.

18. The proposed use is a relatively low traffic generator, and because future residents will be predominantly retired, traffic flows to and from the site are not as bound to the conventional peaks than would be the case for other land uses. The likelihood is that the traffic impact of this particular use is in fact less than that of the pre existing use, or of any other "reasonably" conceivable alternative use of the land. Traffic access to and from the land will function satisfactory.

19. It is our conclusion that subject to the various modifications foreshadowed in these reasons, that the proposed development of the land for the purpose of a retirement village is an appropriate use and development of the land because:

1. The subject land is a large well located site capable of intensive redevelopment without unduly impacting upon neighbourhood character;

2. The proposal will contribute to the diversity of housing available in the locality, and is directed to addressing a specific housing need evident in the local community;

3. The proposed buildings are well designed, will enhance the streetscape of Cotham Road, and provide a high standard of amenity for future residents;

4. The proposed development will not unreasonably impact upon the amenity of adjoining residential properties, or the area generally.

Environment Act 1987

Cotham Road Pty Ltd v Boroondara CC [2003] VCAT 795

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Cotham Road Pty Ltd v Boroondara CC [2003] VCAT 795 (30 June 2003)

Parties

Legislation Cited (1)