Crowncross Pty Ltd v Stonnington CC [2008] VCAT 2275

1. Plans being 0653 TP01- TP15 Rev H (27/06/08) are substituted for the application plans.
2. The decision of the Responsible Authority is affirmed.[1]
3. In permit application 1188/07 no permit is granted.

Mr Philip Bisset, Solicitor of Minter Ellison Lawyers. He called written and oral evidence from:

Mrs Kate Partenio, Traffic Engineer of GTA Consultants;

Ms Carol Frank-Mas, Landscape Architect of CAROL frank-MAS Landscape Architects; and

Mr Andrew Biacsi, Town Planner of Contour Consultants Australia Pty Ltd.

Mr Daniel Bowden, Town Planner of Daniel Bowden Town Planning Pty Ltd.

Mr Eamon Timms for himself and Ms Alison Timms; Ms Sarah Alvares; Mr Sarkis Tepeli; Mr Nicholas Robson; Mr Paul Davies; Mr Kevin Ziebell; Ms Bernadette Wood; Ms Rose Hill; Mrs Margaret Temple; and Mrs Louise Howieson.

Mr Oliver Blumberg for himself and Ms Esther Blumberg, Mrs Victoria Black, Mr Kenneth and Mrs Phyllis Wood, Ms Jane Tierney, Mr Ken and Ms Jane Stonehouse, Ms Margaret Ristevski.

Use and development of land for a retirement village within a three and four storey building containing 58 apartments over basement parking for 72 cars, alter access to a Road Zone Category 1 and partial waiver of parking.

(This is the revised proposal shown on amended plans which were circulated to parties on 1 July 2008 in accordance with the relevant VCAT Practice Note and which we substituted for the application plans at the commencement of the hearing).

Section 79 Planning and Environment Act 1987.[2]

Cl. 32.01 (use of land for accommodation and buildings and works in R1Z).

Cl. 52.29 (Alter access to road in a Road Zone Category 1).

Clauses 11, 12, 14, 15.12, 16, 18, 19.03, 21 (various), 22.02, 22.06, 22.12, 22.13, 22.15, 52.06, 52.29, 52.34 and 65.

We undertook an inspection on the day following the hearing.

The site is bounded on three sides by roads - to the west[3] by Malvern Road and to the south and east by Cairnes Crescent. To the north it shares a boundary for most of its length with a SCOPE assisted living facility facing Cairnes Crescent and for a shorter distance with a double storey dwelling under construction facing Malvern Road. The review site has an area of 4943m2, has a considerable downward slope from the southern to the northern corner of 4.95 metres and is now cleared of institutional buildings that were previously owned and occupied by SCOPE. Some mature vegetation and low fencing remains along the street frontages. Vehicle access to the previous institutional use was via a crossover to Malvern Road. The area around the review site is residential. A dwelling located opposite the review site on the south-east corner of Cairnes Crescent and Malvern Road includes a paved backyard with three linemarked car spaces.

1. The land is zoned Residential 1 and is not affected by any heritage, built form or neighbourhood character overlays. It is a large site of nearly 5000 square metres, is in one ownership, has only one abuttal to a sensitive residential interface to the north, abuts a Road Zone Category 1, is within 400 metres walking distance of Darling train station and 300 metres of bus route 624, is close to local shopping and other facilities in Malvern Road near Darling train station, is within easy driving distance to a number of major activity centres, and is within an area with eclectic built form, scale and style.
2. We consider that the use of the site as a retirement village is entirely appropriate as it continues an institutional use on the land. We accept that the built form is far more intensive than the buildings used by SCOPE but we also accept that institutional buildings invariably look very different to dwellings. We consider that provision of such a facility accords with State and local planning policy frameworks and we accept the evidence of Dr Howe in relation to population growth, the ageing population, the dearth of appropriate accommodation for older members of the community, and the need for such a facility in this part of Stonnington. We therefore do not question the need for such accommodation and we note that neither Council nor neighbours took issue with the use of the site as a retirement village, but instead were concerned about the size, intensity and layout of the development.
3. In a nutshell, the two issues in dispute concern firstly, the built form, design and site layout (including impacts on internal amenity) and secondly, the use of Cairnes Crescent as the sole point of access to the development. We now discuss each of these issues in turn.

1. The immediate neighbourhood is, almost without exception, comprised of one and two storey houses and residents submitted that the character of the area will not change greatly because of a single dwelling covenant that exists over properties in the area. That may be the case but the review site is not affected by that covenant. In our view the introduction of a two and part three storey building, with a ridge top height at its maximum of around 8.6 metres at the lower end of the site where it faces dwellings on the opposite side of Cairnes Crescent, is quite acceptable in this suburban context. The building at its eastern end is under 9 metres - a height that would be possible if this were a ResCode application. It provides an acceptable height transition between the higher elements of the building closer to Malvern Road (which have a height of around 12.5 metres) and the lower single storey dwellings in Cairnes Crescent. In counting the number of storeys we accept that the lower ground/basement level in effect makes this a part three and four storey building, but except for the protrusion of the basement above ground level at the eastern end of the site, the building will be 'read' by passers-by as a two and three storey building.
2. The two storey sections face Cairnes Crescent to the south and east while the small three storey section (comprising two apartments and a library) are positioned close to Malvern Road, where in our opinion a much more robust built form is quite acceptable. Although Council and residents were greatly concerned about the bulky appearance of the building when viewed from Cairnes Crescent we consider that the design has, with some exceptions, adopted a residential appearance with brick and rendered walls, pitched tile or metal roofing and residential scale windows and doors. Setbacks at ground level vary from 7.6 metres at the more exposed north east corner to 6.1 metres along the southern leg of Cairnes Crescent. At first floor the setbacks increase quite substantially, particularly along the eastern side where the front balustrade of the terrace to apartment 1.08 is setback 16.64 metres from the street boundary. On the southern side the front of terraces to apartments 1.10 and 1.13 are setback 6.05 metres. As already noted, the small top floor is positioned close to the Malvern Road frontage, is setback over 50 metres from the eastern boundary to Cairnes Crescent and over 16 metres to the southern boundary to Cairnes Crescent.
3. By any standards these are extremely generous setbacks and serve to minimise visual bulk when viewed from existing residential properties in Cairnes Crescent. That does not mean to say that the top floors of the building will be invisible and there is no doubt that the new building will be a far more dominant structure than the previous buildings on the site and even more dominant than if the site were developed for a dozen or more individual dwellings. However the need to link the whole building without changes in floor levels or gaps between parts of the buildings means that it cannot be visually and functionally broken up as could an apartment building for younger, fully mobile members of the community. This observation accords with many other comments made by other Divisions of the Tribunal when considering applications of this kind. For example, in Complete Aged Care Services Pty Ltd v Boroondara CC, Ng & Ors [2003] VCAT 1934, at paragraph 35, the Tribunal stated:
   1. It is worth first stating that the proposed facility is one that is specialised and has specific functional requirements. The most obvious is that it contain few stairs and level changes as possible on a single floor, for reasons relating to the limited mobility of many residents. Furthermore, these facilities are usually larger than the average dwelling or multi-unit development. One cannot expect them to necessarily replicate the form and mass of other housing forms just as in the same way a school, milk bar or church may be appropriately located in a residential area without resembling houses.
4. It is for this reason that we have reached a different conclusion about neighbourhood character to the one reached by the Tribunal on the last two occasions when it was considering proposals for medium density developments on the site.[4] It is an institutional use and should not be assessed on neighbourhood character grounds as if it were another medium density housing development.
5. Despite submissions to the contrary we do not see any justification in requiring changes to boundary setbacks or to reduce the height of the building. However we have six major concerns about the design and layout of the building which together lead us to refuse the application. These concern:
   1. The desirability of providing an obvious main entrance and associated drop-off area on the Malvern Road frontage.
   2. The very poor amenity for apartments facing onto the two south facing courtyards. This is particularly the case for the lower ground floor apartments but also applies less critically for progressively higher levels.
   3. The height of the basement above ground level in the north east corner and consequently the visual prominence of apartment G12.
   4. Providing the sole point of vehicular access to the development from the eastern leg of Cairnes Crescent without any provision for deliveries, drop-off/pick up from other points around the site.
   5. The position of the lounge/dining/bar area at the lower ground floor with difficult service access from above or from the car park.
   6. The lack of a ramped access at the eastern end of the building with the result that existing trees may need to be removed.
6. In response to our questions, Mr Bisset did provide some suggestions as to how the design could be improved. For example as a result of our inquiries about the height of the basement above ground level in the north-east corner and the possible visual appearance of this corner of the building, Mr Bisset presented a possible modification to combine apartments G13 and G14 so as to reduce the footprint and provided an additional setback from this corner. He also presented possible modifications to the apartment layouts around the two southern courtyards and for servicing arrangements to the lounge/dining/bar area.
7. We accept that some of these may address our concerns but we are still left with some fundamental flaws which will require significant and consequential changes to the whole layout of the building. We have considered the option of giving the permit applicant an opportunity to modify the development to address our concerns but ultimately, it is not our task to undertake a major redesign of the proposal to make it acceptable. Instead we have outlined our areas of concern and consider it far preferable to give the project architect an opportunity to design a new proposal having regard to the issues outlined previously.
8. Ms Frank-Mas gave evidence about landscaping arrangements and explained her design philosophy and selection of plants and other landscaping components. The relatively generous setbacks to Cairnes Crescent provide very good opportunities for plant growth which will in time complement the retained larger vegetation. Landscaping within the northern setback to the SCOPE site also provides an opportunity to filter views of the building from that direction despite the review site being elevated above the adjoining car park. We accept that provision of a ramp to the eastern external door may result in the loss of a mature tree but we do not regard this tree, a Grevillea Robusta, as having particular significance. In any event, a new building design for the site may avoid the need to remove this or other trees along this frontage. In our view the landscape master plan prepared by Ms Frank-Mas provides an appropriate theme to the landscaping and we note that Council did not raise any objections to the landscaping proposal other than a general concern about sustainability and the amount of space on site for landscaping and site permeability. We do not share those concerns although the landscape plan will need to be reworked to reflect any new development proposal.

Access to Cairnes Crescent, the amount of car parking and providing an entrance drop-off/pick up area

1. In a paragraph 8 we listed what we see as six major flaws with the current design. Two of these relate to vehicle access and are interrelated. We accept that residents living closest to the review site are also concerned about built form and neighbourhood character, but we are in no doubt that the issue that has united them all (even those living on the northern leg of Cairnes Crescent well away from the site) is the proposal to obtain all access to the site from the eastern leg of Cairnes Crescent.
2. This is the third attempt to redevelop this site for some form of residential accommodation. The first two involved construction of medium density housing with variations in the design philosophy and number of dwellings provided. Importantly in terms of this discussion, each included a different location and layout for vehicle access. One proposed a combined access from the southern leg of Cairnes Crescent for dwellings facing Malvern Road, supplemented by individual driveways for the dwellings fronting Cairnes Crescent. The second proposal included basement parking with access from Malvern Road, also supplemented by individual driveways for the dwellings fronting Cairnes Crescent. Aside from the location and layout of vehicle access the intensity of development was much less than in the current proposal. Mr Bisset rightly points out that the current proposal provides only one crossover to Cairnes Crescent compared to 6 and 9 previously. However both provided far fewer dwellings (about one third the number now proposed) and hence the anticipated traffic volumes were lower; but not only was the volume less but it was far more dispersed across both the eastern and southern legs of Cairnes Crescent. In addition those proposals did not include the same communal facilities and consequently did not generate the same need for service vehicles as is required for this retirement village.
3. The current proposal provides a sole access point from the basement to the eastern link of Cairnes Crescent. We accept the proposition that in design terms providing access to the basement at the lowest point of the site assists in basement layout and ramp grades. However any such site benefits need to be weighed against off site impacts caused by directing all traffic to a low trafficked residential street that because of its crescent layout does not attract any through traffic whatsoever. Cairnes Crescent is a concrete paved road, 6 metres wide and with space for one lane of traffic and one of parking. GTA estimates that Cairnes Crescent (south leg) carries 170 vehicles per day. GTA has undertaken traffic generation estimates for the retirement village which predicts some 168 vehicle movements per day. It is assumed that all traffic will use the southern leg of Cairnes Crescent to access Malvern Road, although Mrs Partenio concedes that some vehicles may use the northern leg if that proves more convenient.
4. In our view the residents, and Council, are justified in being concerned about the notion of more than doubling current traffic volumes. While we accept Mrs Partenio's evidence that in traffic engineering terms the road is well within its design capacity, we do not accept that directing all traffic from this development onto Cairnes Crescent is acceptable for a number of reasons - in terms of residential amenity, the arrangements for delivery vehicles and convenience for persons being dropped off or picked up.
5. No analysis was undertaken of the number of delivery vehicles to the site although Mrs Partenio did state in her evidence that delivery or loading vehicles could use the parking lane along Malvern Road. This may be acceptable but as we later discuss, we would prefer to see a separate, off-street entrance and drop off/pick up area in front of the building. If our suggestion for an entrance around the corner is pursued then there would be no need for delivery vehicles to park in Malvern Road. Whilst the amended layout of the kitchen area tabled at the hearing contemplates access for delivery vehicles from the basement (assuming they are of acceptable dimensions), we do not regard the concentration of commercial vehicle movements to the access point in Cairnes Cescent as an acceptable arrangement from a residential amenity perspective. We are also mindful of the road's narrow width and the increased levels of inconvenience that would be caused to other road users when larger vehicles endeavour to access the basement while vehicles are parked kerbside.
6. A related concern is the poor sense of address to Malvern Road and the failure to provide some type of formal entrance and dedicated short term drop off/pick area at the front of the building. We envisage a heavy reliance upon kerbside parking - the availability of which cannot be guaranteed in close proximity to the building's main entries. We regard the provision of an easily accessible and convenient arrangement for the collection or dropping of residents as important for a facility of this kind. In saying this, we accept Dr Howe's evidence that most residents will be mobile. We are mindful however that the design should facilitate as far as practical the concept of ageing in place. We think the current arrangements work against that objective.
7. We acknowledge that VicRoads as a matter of policy tries to minimise or reduce the number of access points to main roads, and that where properties have alternative access to local streets, that there is a strong preference to use those local streets. However, as occurred in this case, there are often competing issues that need to be taken into account and weighed up in assessing the impacts of additional traffic on local streets. Unlike the road authority, it is our task to weigh those competing interests and if necessary to reject a design which directs all traffic into a local street. We are also mindful of Vic Roads' preparedness to support access to the proposed basement car park in one of the earlier proposals[5] - an arrangement also supported by Mrs Partenio.
8. Given the line marking along Malvern Road, we find it difficult to understand why traffic turning in and out of a basement access way in Malvern Road would be so unsatisfactory compared to a similar volume of traffic turning at the two intersections of Cairnes Crescent. While in theory the volumes generated by this development could be split evenly to the two intersections, rather than concentrated at one access point to the basement, the actual peak hour volumes (adopting a 10% split) are relatively minor. While that is true wherever the access point is located, in relative terms it will have a bigger impact in Cairnes Crescent compared to Malvern Road.
9. However, we are not fixed on the idea of providing all access from Malvern Road. Despite our comments about providing a main entrance to Malvern Road, it maybe that a main entrance and vehicular access point from the southern leg of Cairnes Crescent is a realistic compromise that overcomes VicRoads concern about main road access, reduces the distance vehicles are required to travel along Cairnes Crescent to gain access to the site and locates the driveway and entrance in a less sensitive position opposite the side boundaries and car park/garages for dwellings facing away from the review site.
10. At the hearing we made favourable reference to other retirement villages we have seen or been involved in where provision is made for an entrance foyer and drop off area. Perhaps one of the most relevant examples we have in mind is the Ryland development in Princess Street Kew. While each and every site and site context are different, it is noteworthy that the Ryland site also has three road frontages. It has frontage to a main road in Princess Street but its entrance and drop off/pick up area is around the corner in Malmsbury Street. While we do not advocate blindly copying other designs and layouts, it does provide an 'as built' example of the sort of entrance treatment we consider necessary if the review site is to be developed for a retirement village.
11. We finally want to say something about the number of spaces being provided on the site. Allocation of the 72 spaces being provided is on the basis of one per apartment, 8 for visitors and 6 for staff. Although one of Council's reasons for opposing the application was the proposal will result in an inadequate number of visitor and employee car parking spaces provided on site, very little justification for this opinion was provided at the hearing. We note that Council's own Transport and Parking Unit considered that 72 spaces would be adequate provided flexibility was retained, through a Parking Management Plan, as to how the spaces are allocated. We agree that flexibility is important, as it is conceivable that some older or more infirm occupiers will not need a space at all, in which case their space can be otherwise utilised so that it is not a wasted resource.

1. In making our assessment of the proposal we have weighed up the various competing factors concerning State and local policy, the suitability of the site for a retirement village and the specific site context and its relationship to nearby land. We have found that the proposal to construct a retirement village on the site is consistent with state and local planning policy.
2. However we are concerned about the design and layout of the site and despite suggestions by Mr Bisset about conditional modifications that could be made to overcome some our concerns, we are of the opinion that the proposal needs more significant modification before it warrants approval.
3. We would make the point that despite rejecting this particular proposal, residents in Cairnes Crescent must understand that there will be a substantial building erected on this site at some time in the future. Its zoning, lack of built form overlays, its relatively large size, its location and planning policy all point to any new building being much taller and larger than the previous buildings on the site and that any buildings will be quite visible from properties along Cairnes Crescent.

1. Having regard to the above, we will therefore direct that no permit is to be issued.

[1] In accordance with Section 4 (2) (d) of the _Victorian Civil and Administrative Tribunal Ac_t 1998 a failure to make a decision is deemed to be a decision to refuse the application.