Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128

Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128 - VCAT 2009 case summary — Zoe

[21]

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.
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.
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.

[25]

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.
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.
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.
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.
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.

[28]

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.
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:

[33]

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.
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.
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.
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.
Prior to construction works commencing a Car Parking Management Plan is to be submitted to the satisfaction of Council.
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.

[47]

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.
The Tree Management Plan must detail measures to protect and ensure the viability of all trees shown to be retained on the endorsed plans.
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.
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.
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.
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.
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.
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Crowncross Pty Ltd v Stonnington CC [2009] VCAT 2128 (13 October 2009)

Parties

Legislation Cited (1)