Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128

1. The decision of the Responsible Authority is set aside.[1] In permit application 0133/09 a permit is granted and directed to be issued for the land at 1997-2005 Malvern Road, Malvern East. The permit will allow:
   • Use and development of land for accommodation (retirement village) and creation of access to a Road Zone Category 1

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Chris Townshend, SC and Mr Phil Bisset, Barrister instructed by Minter Ellison Lawyers. They called expert evidence from:

• Mr Marco Negri, Town Planner of Contour Consultants Australia Pty Ltd; and
• Mr John Kiriakidis, Traffic Engineer of GTA Consultants Pty Ltd.

Mr John Patrick, Landscape Architect prepared a witness statement, but with the agreement of parties he was not required to attend and give oral evidence or respond to cross-examination.

Mr Oliver Blumberg for himself and other residents.

Use and development of land for accommodation (retirement village) within a three and four storey building containing 60 apartments over basement parking for 75 cars, alter access to a Road Zone Category 1 and partial waiver of parking.

Section 79 Planning and Environment Act 1987.

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.

The site is bounded on three sides by roads - to the west[2] 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 facing Malvern Road. The review site has an area of 4943m2, has a considerable downward slope from the south western to the north eastern 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 line marked car spaces.

1. The key issue in this case is whether or not the proposed development has responded adequately to the comments and criticisms made by the Tribunal when it refused a similar retirement village in November 2008.[3]
2. The application for review is against Council's failure to make a decision in the prescribed time. Subsequent to the application for review being lodged Council resolved that if it had been in a position to do so, it would have issued a Notice of Decision to Grant a Planning Permit. Council's decision to support the proposal was based on the removal of two dwellings (for a total of 58 instead of the 60 proposed) and contrasts with its opposition to the previous proposal.
3. Nearby residents who opposed the previous proposal remain unconvinced about the merits of this revised development and do not support the granting of a permit. Although their concerns about access and traffic in Cairnes Crescent have been largely overcome with this application, they remain concerned about the intensity of built form, the appearance of the building from Cairnes Crescent and the use of the site for a retirement village rather then, for example, more traditional medium density development with far fewer dwelling units.

Retirement village, aged care facility or medium density housing?

1. Before discussing whether the shortcomings identified by the Tribunal in the previous application have now been satisfactorily resolved, I firstly want to comment on the land use categorisation. One of the main points raised by Mr Blumberg in his submission concerned the categorisation of the use as a retirement village and the differences between retirement villages and aged care facilities. As part of his submission he made reference to the Retirement Villages Act 1986, to the Aged Care Act 1997 and to a considerable number of Tribunal decisions dealing with aged care accommodation/facilities and nursing homes. Some of these applications were for new facilities, others for extensions to existing facilities.
2. This is an application under the Stonnington Planning Scheme and the land use definitions to be used are those set out in the Planning Scheme at Clauses 71 to 75. Except in those relatively few instances where there is specific reference to other Acts (see for example Gaming Machine has the same meaning as in the Gambling Regulations Act 2003) planning permit applications are assessed having regard to the definitions and the nesting of land uses set out in these clauses. Retirement village is separately defined and is distinct to Residential aged care facility which is also separately defined and includes Nursing home. The two uses are further distinguished because Retirement village is nested under Accommodation whereas Residential aged care facility is nested under Residential building.
3. Retirement village is defined as:

Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

1. On the basis of these definitions in the Planning Scheme I am satisfied that this development is a Retirement village and not a Residential aged care facility (or Nursing home) and that it should be approved as such. Because it is nested under Accommodation it is a Section 2 use in the Residential 1 Zone (unlike Residential Aged Care Facility which is a Section 1 use) and is not required to be assessed under Clause 55 (Rescode). While I agree with Mr Blumberg that assessing a development using ResCode standards can be confusing for residents, in the absence of any other quantitative assessment tools, the use of such standards provides some measure of how a building fits within its site context. At the hearing I gave the example of a synagogue I recently approved in Glen Eira where assessment of boundary setbacks using the ResCode standard demonstrated that the setbacks were even greater than would be deemed acceptable for a medium density development. Mr Townshend's reference to the Rescode compliant setback for the dwelling at No 1995 Malvern Road serves a similar purpose with this application and satisfies me that building bulk to the immediately adjoining residential property is acceptable.
2. How the facility is managed is a separate issue dealt with under other legislation. The key point is that this approval is for a retirement village as defined under the Stonnington Planning Scheme.
3. I also have no reservations about the desirability of providing additional opportunities for retirement living in this part of Melbourne. As noted in the previous application:
   1. 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.

What were the key areas of concern for Members Bennett and Taranto in the previous case?

1. Although the previous application was refused by the Tribunal, some clear statements were made about the six major shortcomings that led to that refusal. These were set out in paragraph 8 as follows:
   1. 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.
2. While the Tribunal could have issued an interim decision and given the permit applicant the opportunity to redesign the development to overcome these six shortcomings, the Tribunal considered that the design had some fundamental flaws which will require significant and consequential changes to the whole layout of the building.

So how has this latest proposal responded to the shortcomings? Is it now an acceptable and site responsive design?

1. In the previous decision the Tribunal identified the two main issues in dispute as concerning:
   1. Built form, design and site layout (including impacts on internal amenity).
   2. The use of Cairnes Crescent as the sole point of access to the development.
2. I now turn to consider whether this latest proposal is an acceptable and site responsive design having regard to the list of shortcomings set out in paragraph 10.
3. Firstly, the building has been provided with a main entrance on Malvern Road and there is no major pedestrian entrance provided to Cairnes Crescent. In the previous application the poor sense of address and the failure to provide some type of formal entrance and dedicated short term drop off/pick area at the front of the building was considered a serious design flaw. This latest proposal now provides an easily accessible and convenient arrangement for the collection or dropping off of residents from Malvern Road without the need to enter Cairnes Crescent or park in the Malvern Road parking lane. I consider this a very significant improvement over the previous design.
4. Secondly, the internal amenity of the units facing the southern courtyards has been significantly improved by a major redesign of the internal corridors and points of lift access. The corridors now provide northern light through to the southern units so that they are not entirely dependent on light from the southern courtyards. All four of the courtyards have been widened to improve light and sunlight penetration and I consider that the internal amenity for the whole development has been greatly improved over the previous proposal. Lifts are now provided at the front, middle and rear of the building thereby removing the need for long corridors stretching the whole length of the building.
5. Thirdly, the building has been redesigned in the north east corner in attempt to reduce the visual bulk in this corner. Although residents remain concerned about setbacks, particularly along Cairnes Crescent, these setbacks are, with one exception, considered satisfactory. I note that the setbacks were not a concern with the previous proposal and I also note that the latest plans show the position of the previous building so that it is easy to discern where differences exist in setbacks. I agree with Mr Blumberg that in some cases these setbacks have been reduced and the section of building facing the eastern leg of Cairnes Crescent does rise vertically to two storeys. It has a maximum wall height of 7.6 metres at its western end but is angled to the street frontage and stepped so that it does not present as an unrelieved and sheer wall. One end of the nearest balconies protrudes to within 4.2 metres of the boundary but the nearest point of the main building is 5.775 metres from the frontage.

In the north east corner there have been minimal changes at the lower ground floor but given the setbacks and removal of the basement ramp I consider that what is proposed is acceptable. I am not so satisfied about the changes at the ground floor. It was the visual prominence of Unit G12 that was a problem last time and the additional 2 metre setback of Unit G21 does not go far enough. In order for there to be a material change in the appearance in this corner I will require that Units G20 and G21 be combined into one unit. The new unit is to be set back 8 metres from the northern boundary and the reduction in area is to be achieved by deleting Bedrooms 1 and 3 of Unit G20, deleting the living/kitchen area of Unit G21 and terminating the corridor at the entrance to the new unit. At the first floor, Unit 1.15 protrudes closer to the boundaries than the equivalent unit in the previous proposal, but given the 12+ metre setback from the eastern and northern boundaries and the intervening roof form below this is an acceptable outcome

1. Fourthly, the basement car park is now accessed from Malvern Road with no access from any part of Cairnes Crescent. This is by far and away the most significant change directly benefiting residents in Cairnes Crescent. I do not intend to reiterate all the comments made in the previous decision but the Tribunal did not accept the proposition that directing all traffic onto Cairnes Crescent was acceptable for reasons including impact on residential amenity, the arrangements for delivery vehicles and inconvenience for persons being dropped off or picked up.
2. Fifthly, the car park itself has been redesigned to provide improved loading and bin storage areas and a more functional and user friendly link between the carpark and the lounge area above. Despite submissions to the contrary I am satisfied that car parking for a development of this size is sufficient and note that neither Council's Traffic Engineer nor Mr Kiriakidis raised any concerns about car parking (or traffic generation). I am satisfied that subject to the minor changes required by permit condition that the carpark will operate satisfactorily and that smaller delivery vehicles will be able to use the basement loading area.
3. Sixthly, the new proposal does not include a communal doorway at the eastern end of the building and hence there is no need to provide a pedestrian access ramp that could interfere with existing and proposed trees and shrubs. In comparison to the previous proposal, the absence of both the access ramp and driveway within this setback to Cairnes Crescent provides plenty of scope for decent sized vegetation to flourish. As with any new building, it will take time for the vegetation to reach a height to soften the building, but I am satisfied that the setback is acceptable.

1. Residents are clearly concerned that the proposed development does not respect the existing character of development in Cairnes Crescent. It is obvious that this building does not seek to replicate the mainly single storey character of dwellings along Cairnes Crescent. But that is not what is meant by respecting neighbourhood character. As various divisions of the Tribunal have in numerous decisions commented, respecting neighbourhood character does not mean, for example, that new dwellings must replicate the exact design and scale of existing dwellings, that two storey dwellings are unacceptable just because the existing housing stock is primarily single storey, or that modern designs and materials should be rejected because they introduce new materials or different roof shapes. Change within our urban areas will occur as matter of course as it has since Melbourne was first settled. In Polyzos[4] the Tribunal made the following comments about neighbourhood character:
   1. Assessing neighbourhood character involves evaluating competing considerations, and in the end, is something about which we, as judicial officers, must make an impartial and objective judgement. Individuals will have different personal views about what constitutes the character of a particular neighbourhood. These difference views were highlighted by Ms White's questions to Ms Ring about neighbourhood character and the concept that ultimately it is the impact on daily living as judged by people who will experience the impacts as being more important than neighbourhood character. We acknowledge the relevance of the physical impact of residential built form and design on the individual experience of daily living to an assessment of neighbourhood character.
   2. In our view the planning scheme provides a means by which that assessment can be made based on policies, decision guidelines and controls included in the planning scheme after community input. However imperfect those provisions may seem to be to an individual, they seek to remove arbitrary and ad hoc assessments and provide some consistency from place to place and site to site. For example, guidelines produced by the State Government and referred to by Mr Bisset, suggest that determining neighbourhood character needs to take into account a broader area than just the immediately adjoining properties. We agree with Mr Bisset that assessing neighbourhood or streetscape character only on the basis of the immediately adjoining properties is too narrow a perspective. Establishing the character of a neighbourhood involves more than assessing existing building heights and setbacks of adjoining or nearby dwellings and requires consideration of more intangible factors created by the juxtaposition of building heights, front and side setbacks, landscape character and styles, size and style of rear yards, position of driveways and car parking areas, front fences and the public realm including road and footpath design.
   3. Ultimately, neighbourhood character assessments come down to a question of balance. Although this is a two storey dwelling next to single storey dwellings to the east and west, we are not convinced that it should be refused or altered significantly because it is so discordant or 'disrespectful' to the character of Clarke Street. In the absence of heritage, built form or design overlays, or demolition controls, we anticipate that many of the largely unaltered existing interwar dwellings in Clarke Street will be replaced or significantly altered to modernise living conditions and upgrade amenity for residents. As already noted, that is already happening and based on our assessment of the neighbourhood and streetscape character we do not accept that the dwelling should be refused for reasons concerning neighbourhood/ streetscape character.
2. Although the proposal and site context in Malvern East is quiet different to the dwelling in Clarke Street, the need to balance competing considerations is necessary in all applications. Indeed Clause 11 of the Stonnington Planning Scheme requires me to:

endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

1. Neighbourhood character is just one of the many policies and objectives that must be balanced to achieve this outcome. As noted in the previous decision for this site, the site's zoning, lack of built form overlays, its relatively large size, its location and planning policy encouraging both more intensive development and greater dwelling choice all point to any new building being much taller and larger than the previous buildings on the site. It also follows that any new buildings will be quite visible from properties along Cairnes Crescent; but being able to see the building is not a reason to refuse this application.

1. In assessing the conditions proposed by Council, I have made a number of changes to reflect submissions and discussion at the hearing. I have also made some minor changes to replace the word 'shall' with the word 'must' in order to give some consistency in the way conditions are worded.
2. One of the draft conditions submitted by Council was that the number of units be reduced from 60 to 58. Mr Bowden advised that the condition was not recommended by officers but was included by Councillors. I am also advised that the reduction in unit numbers is not sought because of built form issues but rather because it reflects the same number of units refused last time. I do not accept that the number of units is a key issue but rather the built form outcome. It is for built form reasons that I have required changes in the north east corner, and while it reduces the number of units by one, that is consequential outcome rather than a separate reason to reduce the number of units by one.

1. Having regard to the above I will therefore direct that a permit issue subject to conditions.

1. Prior to the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans advertised but modified to show:
   • (a) Units G20 and G21 be combined into one unit. The new unit is to be set back 8 metres from the northern boundary and the reduction in area is to be achieved by deleting Bedrooms 1 and 3 of Unit G20, deleting the living/kitchen area of Unit G21 and terminating the corridor at the entrance to the new unit.
   • (b) The landscape plan modified as required by Condition 8.
   • (c) Bicycle spaces.
   • (d) The loading bay dimensioned.
   • (e) Dimensions of the 'at grade' car space within the front setback.
   • (f) Basement ramp grades with measurements taken from the inside of the ramp.
   • (g) Any changes as required by condition 3.
2. The development allowed by this permit and shown on the plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. Concurrent with the endorsement of the plans, a stormwater detention system (or suitable alternative) must be provided to restrict the post development runoff to no greater than pre-development runoff to the satisfaction of the Responsible Authority.
4. The land must only be used for the purpose of a retirement village and occupied by persons of an age of 55 years or over, or persons who are the partner of a person who has reached the age of 55 years, or whose partner was 55 years or over and a resident and is deceased. Staff residing on site are exempt from this requirement.
5. Prior to construction works commencing a Car Parking Management Plan is to be submitted to the satisfaction of Council.
6. Prior to the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
   • (a) Dimensions of waste areas.
   • (b) The number of bins to be provided.
   • (c) Method of waste and recyclables collection.
   • (d) Hours of waste and recyclables collection.
   • (e) Method of presentation of bins for waste collection.
   • (f) Sufficient headroom within the basement to allow the passage of waste collection vehicles (if applicable).
   • (g) Sufficient turning circles for the waste collection vehicles to drive out in forward gear from within the basement (if applicable).
   • (h) Strategies for how the generation of waste and recyclables from the development will be minimized.

When approved, the plan will be endorsed and will then form part of the permit. Waste collection from the development must be in accordance with the plan, to the satisfaction of the Responsible Authority.

1. Prior to occupation of the building or commencement of use, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
2. A landscape plan must be submitted to the Responsible Authority that is generally in accordance with the landscape plan prepared by Carol Frank-Mas & Associates on 20 February 2009 and marked 'Dwg. No. 2571/1', but amended to show:

(a) The Weeping Lilly Pilly (Waterhousea floribunda) specimen marked on the landscape plan as 'eW' and abutting the boundary with 1995 Malvern Road to be established at a height of 3.5m - 4.5m.

(b) The Chinese Elm (Ulmus parvifolia) specimen abutting the northern boundary with 12 Cairnes Crescent is to be established in a 3.75m x 2.5m planter.

(c) All Manchurian pear (Pyrus ussuriensis) specimens are to be replaced with Chanticleer Glenn's Form pear (Pyrus calleryana chanticleer).

(d) The inclusion of one 3.75m x 2.5m planter in each south-facing open courtyard and any consequential landscaping changes.

(e) The inclusion of at least two 3.75m x 2.5m planters in each north-facing courtyard and any consequential landscaping changes.

(f) A planting schedule of all proposed tree, shrubs, climbers, tussock grasses and ground covers, including botanical names, common names, pot sizes, sizes at maturity, quantities of each plant.

(g) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

(h) Details of surface finishes of pathways and driveways.

(i) Details of proposed watering system for landscaping from water tanks on site.

(j) The extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site.

When endorsed, this landscape plan will form part of the permit.

1. Concurrent with the endorsement of development plans a Tree Management Plan prepared by a suitably qualified Arborist must be submitted to and approved by the Responsible Authority. When approved, the Tree Management Plan will form part of this permit and all works must be done in accordance with the tree management plan.
2. The Tree Management Plan must detail measures to protect and ensure the viability of all trees shown to be retained on the endorsed plans.
3. Without limiting the generality of the Tree Management Plan it must have at least three sections as follows:
   • (a) Pre-construction - details to include a tree protection zone, height barrier around the tree protection zone, amount and type of mulch to be placed above the tree protection zone and method of cutting any roots or branches which extend beyond the tree protection zone.
   • (b) During-construction - details to include watering regime during construction and method of protection of exposed roots.
   • (c) Post-construction - details to include watering regime and time of final inspection when barrier can be removed and protection works and regime can cease.
   • (d) Pre-construction works and any root cutting must be inspected and approved by the Responsible Authority. Removal of protection works and cessation of the Tree Management Plan must be authorised by the Responsible Authority.
4. Before the occupation of the development starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
5. Air conditioning and other plant and equipment installed on the subject building must be so positioned and baffled so that no unreasonable noise disturbance is caused to occupiers of adjoining properties to the satisfaction of the Responsible Authority.
6. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
7. Any external lighting must be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.
8. The loading and unloading of vehicles and the delivery of goods to and from the premises must be generally conducted entirely within the site and in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.
9. A legal point of stormwater discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified engineer in compliance with Council's report prior to a Building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
10. Prior to the occupation of the building, all screening devices designed to limit overlooking hereby approved must be fixed to a height of 1.7m and have no more than 25% openings or an alternative to the satisfaction of the Responsible Authority. The screens must be designed and coloured to blend in with the development to the satisfaction of the Responsible Authority.

1. A sealed driveway must be constructed within the site, and be 6 metres wide for the first 6 metres to allow two-way traffic flow, to the satisfaction of the Responsible Authority.
2. The basement ramp slope must be no greater than 1 vertical metre to 20 horizontal for at least the first 6.0m inside the property. This requirement will ensure that exiting vehicles are substantially stationary prior to crossing the footpath and hence not a risk to pedestrians.
3. The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, where appropriate to the satisfaction of the Responsible Authority.
4. Appropriate signage is to be provided to direct and control the flow of traffic internal/external of the site, to the satisfaction of the Responsible Authority.
5. The developer must pay the full cost of all works including drainage, road safety devices, service relocations, and any other associated costs i.e. all works to be complete at no cost to VicRoads.
6. Construction activities within in the declared road reservation must be undertaken in accordance with the relevant sections of VicRoads Standard Specifications for Roadworks and the procedures described in VicRoads Worksite Traffic Management (Roadwork Signing) Code of Practice which incorporates AS 1742.-2002. Traffic management/control must be carried out by suitably trained personnel.

1. 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 this permit.
   • (c) The use is not commenced within five years of the date of this permit.

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.

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