Victorian Civil and Administrative Tribunal|1999-12-31

Deal Corporation Projects Pty Ltd v Stonnington CC [1999] VCAT 2217 (31 December 1999)

Respondents City of Stonnington and I. & T. Phillips and Anor.

The order of the Tribunal is that the application for review is allowed and the Responsible Authority is directed to issue a permit for Application No. 0448/99 relating to the land at 361 Glenferrie Road, Malvern.

1. Before the development begins, amended plans which are to the satisfaction of the Responsible Authority must be submitted to the Authority for its approval. When approved, the plans will be endorsed accordingly and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally consistent with the plans prepared by Bruce Henderson Pty Ltd Architects in May 1999, being Drawings Nos. TP03/A, TP04, TP05, TP06, TP07, TP08, TP09/A, TP10/A, TP11 and TP12 when modified to show:

(a) The revisions to the form of the development shown on the revised plans tabled at the hearing of Application for Review 1999/79456, being revised ground floor plan VCAT 01, VCAT 02B revised, VCAT 03B revised, VCAT 04C revised, VCAT 05, VCAT 06C revised, VCAT 07B revised and VCAT 08B revised;

(b) The addition of a wing wall to the western wall of the conservatory windows of Unit 205 to preclude overlooking to the glass roofed conservatory at the rear of the existing dwelling on the lot to the north of the subject land, or such other screening device attached to the building which is to the satisfaction of the Responsible Authority;

(c) Screening devices attached to the windows of bedroom 1 of both of Units 106 and 107 to prevent downlooking through the glass roof of the conservatory to the rear of the existing dwelling on the property to the north of the subject land, to the satisfaction of the Responsible Authority;

(d) The designation of four of the parking spaces in the building basement as for visitor parking;

(e) The exterior treatment of the building to a scale of at least 1:100 including details of all exterior decorations, materials, finishes and colours;

(f) A reduction in the amount of hard surface material proposed for the ground level outdoor open space to the satisfaction of the Responsible Authority;

(g) The vehicular crossing and car park ramp and associated safety features are to be designed to the satisfaction of the Responsible Authority;

(h) The sound insulation of Unit G07 to the satisfaction of the Responsible Authority; and

(i) Landscaping of the site in accordance with Condition 4.

2. The development as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority. Note: This does not obviate the need for a permit where one is required.

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

* The development and use are not started within two years of the date of this permit.

* The development is not completed within four 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.

4. Before the development begins, a landscaping plan indicating the areas to be set aside for landscaping and a schedule of all proposed trees, shrubs and ground covers (including size at maturity and botanical names) which is to the satisfaction of the Responsible Authority must be submitted to the Authority for its approval. When approved, the plan shall be endorsed accordingly and will then form part of this permit. The landscaping plan must be generally in accordance with the landscape concept plan of the 20th of May 1999 prepared by KLM Gerner Consulting Group, except that the plan must show the retention of the tree located against the northern boundary of the site approximately 13m from the front boundary (believed to be a Golden Elm) and the substantial tree located within metres of the north-eastern corner of the site (believed to be an Evergreen Alder, or Birch), unless in the view of the Responsible Authority the retention of those trees is inappropriate having regard to the practicalities of building construction and/or the completion of an integrated landscape plan. The landscape plan must also indicate that an in-ground irrigation system was to be provided to all landscape areas.

5. Before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and thereafter must be maintained to the satisfaction of the Responsible Authority.

6. Air-conditioning and other plant and equipment installed on the subject buildings shall be so positioned and baffled so that no noise disturbance is caused to occupiers of adjoining properties.

7. A two-way vehicular crossover shall be constructed at least 6.4m wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.

8. A driveway within the site shall be at least 6.0m wide for the first 10m to allow two-way traffic flow.

9. A kerb return radius of at least 3m shall be constructed between the vehicular crossover and the existing road pavement.

10. All car parking spaces shall be designed to allow all vehicles to drive forwards both when entering and leaving the property.

11. Any security boom barrier or similar device allowing vehicular access to the premises must be located a minimum of 6.0m inside the property to allow vehicles to store clear of Glenferrie Road pavement and footpath.

12. Any redundant vehicle crossovers shall be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.

13. The applicant shall bear the full cost of all road works, service relocation and other costs associated with these works.

14. Adequate signs, pavement markings and traffic islands shall be provided to direct and control the flow of traffic within the site.

15. The existing easements and the stormwater drains contained within those easements must be relocated to the satisfaction of the Council's Manager of Infrastructure. These works must be to the satisfaction of Council's Infrastructure Unit.

16. The owner must accept responsibility for the old drain.

17. Prior to a building permit being issued, an application for consent to build over the easement must be made to Council's Building Surveyor if the easement has not been removed at that stage.

18. The owner must enter into Council's standard Section 173 agreement for building over easements.

19. The easement drain within the planter box must be protected for its full length with a concrete culvert or surround with minimum thickness concrete walls of 100mm, and be constructed to the satisfaction of the Responsible Authority.

20. The drain must be relocated (temporarily if necessary) prior to the commencement of building or site works. Under no circumstances may the drain be obstructed or diverted other than into a legal point of discharge as directed by Council.

21. The drainage of the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled around its limits to prevent any discharge onto any adjacent property or street other than by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

This permit is for the use of the land and/or buildings and does not constitute any authority to: carry out any building works or occupy the building or part of the building unless all relevant building permits are obtained.

Mr James Livingstone, Planning Advocate, represented the Responsible Authority.

Mr Ian McPherson Pitt, Solicitor of the firm Best Hooper, appeared for the Responsible Authority. He called Mr Timothy Blythe, Town Planner of A.T. Cocks and Partners Pty Ltd, and Mr Laurence Blyton, Landscape Architect of KLM Gerner Consulting Group Pty Ltd, to give expert evidence.

Mr Ivan Phillips, an objector appeared in person. He also represented his wife Mrs Therese Phillips.

Mr Peter Blair appeared for the Body Corporate at 1105-1107 Malvern Road, Toorak, and for Globatele Pty Ltd and Ms N. Newnham.

1. This application for review is one brought by the permit applicant following failure by the Responsible Authority to determine the planning application within the period specified in the Planning and Environment Act 1987. The planning application is for a three level building with basement which is proposed to house 19 residential units and parking facilities for 33 vehicles.

2. The following description of the subject site and surrounds are drawn from Mr Blythe's statement of evidence presented at the hearing:

"The subject site is located on the western side of Glenferrie Road, approximately 30 metres north of Malvern Road, Toorak. The site is slightly irregular in shape, having a frontage to Glenferrie Road of 33.6 metres, a depth of between 39 and 44.5 metres and an overall site area of 1446 square metres. The site has been created through the subdivision of part of the land (approximately 351 square metres) associated with the Malvern Hotel to the south and consolidation with the residential property known as 361 Glenferrie Road.

The site has a gentle slope in a south-west to north-east direction of approximately 2.4 metres. The majority of the site is presently occupied by a single-storey dwelling well set back from the Glenferrie Road frontage. A number of mature and well-established cypress trees exist within the front garden area of the site adjacent to the existing hotel boundary. Car access to the site is available both from Glenferrie Road and a lane to the rear accessed via Church Street to the north of the site.

The southern section of the subject site consists of a car parking and driveway area associated with the Malvern Hotel use.

The site is located approximately 7 kilometres from the Melbourne GPO and is highly accessible to public transport, shopping facilities and local public schools.

The subject site is located on the northern edge of the Malvern/Glenferrie Road local shopping centre and accordingly is within a transitory area between the commercial area to the south and the established residential area of Glenferrie Road to the north.

To the north of the site is a part single and part two-storey dwelling (No. 363 Glenferrie Road). The dwelling is well set back from Glenferrie Road, (approximately 10 metres) and includes a large single-storey garage to the rear, providing vehicle access via the lane from Church Street. A hard-paved outdoor entertaining area exists within the rear of this site between the garage and dwelling and includes an in-ground pool located towards the northern side of this property. Landscaping within the rear garden area is limited to the perimeter boundaries, and a row of cypress trees approximately 4-5 metres high is located along the common side boundary with the subject site.

The dwelling and the open space has been designed and orientated to capture the extensive western and northerly aspects available to this property. There appears to be only one south-facing window within the existing dwelling, which is located at ground level. The majority of windows of the dwelling are orientated to the east and west providing aspect to internal garden and courtyard areas.

To the west of the site beyond the lane is a single-storey dwelling fronting Church Street. This site incorporates a large rear garden and pool area, but is screened from the subject site by high boundary fencing.

To the south-west, is a two-storey block of apartments fronting Malvern Road. Car access to these dwellings is from the lane accessed via Church Street. As such, the rear of this site where it relates to the subject land, is largely comprised of garaging and open car spaces. A small area of paved open space, framed by small cypress trees is provided in the north-east corner of the site, although I do not consider this area to be a highly useable or attractive area, given its size and lack of relationship with the dwelling that it serves.

To the south of the site is the Malvern Hotel. The hotel is currently undergoing renovations, which, together with the reduction in the size of the hotel site (transferred to the subject land), will result in the removal of the drive-thru bottle shop, with the rear area of the site to be used for car parking associated with the hotel use.

Opposite the site on the east of Glenferrie Road are two properties. The properly located at 324 Glenferrie Road is currently vacant, but a planning permit has been issued for a three-storey flat development with basement car parking. To the immediate south of this site, at 322 Glenferrie Road is a two-storey commercial building constructed to the street frontage. The boundary between 322 and 324 Glenferrie Road represents the commercial/zoning boundary of the shopping centre on the east side of Glenferrie Road.

Glenferrie Road to the north of the site generally comprises substantial two-storey dwellings, set back behind well-established and landscaped front garden areas."

3. The proposal is for 19 flats in a building which has three above ground levels and one basement level.

4. The basement level would be utilised for 33 car parking spaces and storage areas for the units. Access to the basement would be via a ramp from Glenferrie Road located towards the northern end of the site. The basement is set back from all perimeter boundaries of the site so as to allow natural "in-ground" planting.

5. Seven dwellings are proposed to each of the ground and first floor levels of the building, generally comprising two bedrooms and associated living areas. Private open space areas for each ground level dwelling is provided in the form of a north-facing terrace (in the case of two units, or east and west-facing terraces in the case of the five other units). Open space for the seven dwellings proposed at first floor level would be provided in the form of balconies, all of which would have east or west facing sunlight access. Those balconies would have areas ranging from 8sq m to 18sq m.

6. At ground floor level pedestrian access to the development is provided by a central entry pathway leading to a central foyer with lift and stair. Pedestrian access is available from the ground floor of the development to a rear laneway which runs along the western boundary of the site.

7. At second floor level, five dwellings are proposed each with two bedrooms and living areas and outdoor terraces. All of the units would have terraces with east or west-facing sunlight available. Conservatory areas as part of the living space are proposed in the case of all of these top floor units.

8. The proposed building would be of rendered masonry construction with a grey tiled roof. The building is well articulated and the second floor is set back behind the building line of the floors below. The setback of the development at ground floor level is generally 6m except at the north-eastern corner where the access ramp to the basement is to be provided. At this point there is a substantially greater setback of some 13m. This results in the proposed development presenting a staggered setback to the street with the façade stepping between the substantial setback to the Phillips' property to the north and the hotel on the property to the south which is constructed to the street frontage. The building is generally set back at least 3m at ground floor level to the northern and western boundaries and a similar distance at first floor level. At upper floor level, the building itself is set back generally 5.1 to 5.6m from the western and northern boundaries, exclusive of terraces. There is a short section of wall proposed to be constructed to the southern boundary of the land which abuts the car park associated with the hotel. The remainder of the southern elevation is set back a variable distance at ground floor level of between 1.3 and 3m increasing to 2.3 to 4m on the top floor.

9. Owing to the fall of the land across the site, the proposed building would have a height measured from the parapet to natural ground level varying between 8.7m at the south-western corner to 11m at the north-eastern corner.

10. Extensive paved areas are proposed as part of this development. Mr Blyton gave expert evidence concerning the proposed landscaping of the site and presented a plan which he had prepared in May 1999. That envisages the planting of two substantial trees in the front setback - being a Common Beech growing to a height of 24m (proposed to be planted at 5m in height) and a Pin Oak, also growing to 24m (and proposed to be planted at 3m height). A number of other tree species growing to 3 to 5m are proposed in the front setback. It is proposed to remove the existing red brick fence along the property frontage which is covered with a climbing species of Fig and replace it with a slated timber fence and an abutting Horn Beam hedge growing to 1.5 to 2m. The landscaping theme also incorporates lines of pleached Manchurian Pear Trees growing to a height of 5 to 8m along the northern and south-western boundaries of the site.

11. The subject land is located within two zones under the Stonnington Planning Scheme. The major portion of the site is located within a Residential C Zone. In that zone the use of land for the purpose of a flat requires planning permission. The southern section of the site which was subdivided off from the hotel site, is zoned Restricted Business. Again planning permission is required for the use of the land for a flat but planning permission is also required for buildings and works.

12. Clause 16-2 of the Planning Scheme generally guides the exercise of these discretions and requires that consideration be given to the orderly planning of the area, the effect of the proposal on the amenity of the neighbourhood, and relevant planning policies.

13. That clause in turn refers to the State policies at Clause 3-3A and to the regional policies at Clause 14-2 which generally encourage urban consolidation and an increased variety and density of housing throughout the metropolitan area.

14. Clause 21 of the Planning Scheme is also relevant to this application. It requires its assessment against the element objectives and criteria of the Good Design Guide for Medium Density Housing.

15. Another relevant planning policy is that included in the City of Stonnington Municipal Strategic Statement, which was prepared as part of the preparation of the new format Planning Scheme for the municipality, based on the Victoria Planning Provisions. That statement inter alia encourages and directs large scale medium density development to commercial areas or fringes, on large sites and along arterial roads.

16. Upon receipt of the application, the Responsible Authority required it to be advertised and in response five objections were received. Those objections were summarised in Mr Livingstone's written submission to the appeal hearing as follows:

* Inconsistent with and detrimental to streetscape

17. The application was also referred to VicRoads, given that it was proposed to alter access to Glenferrie Road. Permission under Clause 17 of the Planning Scheme is required. The referral authority did not object to the application provided certain conditions were included on any permit granted. Those conditions were as follows:

"1. A two-way vehicular crossover shall be constructed at least 6.4 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority.

2. A driveway within the site shall be at least 6.0 metres wide for the first 10 metres to allow two-way traffic flow.

3. A kerb return radius of at least 3 metres shall be constructed between the vehicular crossover and the existing road pavement.

4. All car parking spaces shall be designed to allow all vehicles to drive forwards when both entering and leaving the property.

5. Any security boom barrier or similar device allowing vehicular access to the premises must be located a minimum of 6.0 metres inside the property to allow vehicles to store clear of Glenferrie Road pavement and footpath.

6. Existing vehicle crossovers shall be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.

7. The applicant shall bear the full cost of all road works, service relocation and other costs associated with these works.

8. Adequate signs, pavement markings and traffic islands shall be provided to direct and control the flow of traffic within the site."

18. At its meeting of the 4th of October 1999, the Responsible Authority decided to defer consideration of the permit application to allow further assessment to be undertaken of tree retention, density, acoustic measures and Council policy. The permit applicant then lodged an application for review on the 6th of October, in response to the Council's failure to determine the application within the prescribed time.

19. Following lodgement of the appeal, however, the Responsible Authority resolved that it would have supported the application if the matter had still been before it.

20. The hearing of the appeal proceeded before the Tribunal on the 9th of December 1999. The Responsible Authority and permit applicant were represented at the hearing and two objectors appeared in person: Mr Phillips the owner/occupier of the residential property to the immediate north; and Mr Blair the secretary of the Body Corporate of four units located to the west of the subject land across the laneway.

21. An inspection was undertaken in the company of representatives of all the parties to the proceeding on Friday the 10th of December. This enabled the Tribunal to better understand the nature of the issues raised at the hearing, and in particular the matters of visual bulk and overlooking.

22. On Monday the 13th of December 1999, the Tribunal gave the following statement of oral reasons for its decision in the matter. Only a representative of the applicant company and the Council were present. A written record of those oral reasons follows. It has been slightly altered to better convey my meaning.

"This is the second application relating to the subject land which has come before the Tribunal. The earlier proceeding - Application for Review 1998/15872 Deal Corporation Pty Ltd v City of Stonnington and Ivan and Therese Phillips and Others (unreported) - related to the subject land and the adjoining hotel site. The sites were proposed to be developed with a bar/restaurant, 18 serviced apartments and 28 flats in a building which had three above ground levels, and a basement level housing 89 vehicles.

In the previous proceeding, which was heard by Mr Liston, the position taken by the Responsible Authority was that that proposal was contrary to its draft Municipal Strategic Statement, it was an overdevelopment, and inconsistent with the character and scale of the built form of the surrounding area. There were concerns also about the excessive height, bulk and massing of the building as presented to neighbouring properties and it was said that there would be unreasonable traffic and parking impacts.

Mr Liston indeed refused that application on the grounds of inconsistency with the character of the locality.

The matters raised in the earlier proceeding remain those to be considered in relation to the current proposal, though in this case they principally arise from the objectors' concerns, as the Responsible Authority have indicated that they support the current use and development.

In relation to such policies, it needs first to be said that the site is located on a major metropolitan roadway abutting a commercial centre. Both these locational characteristics make the site an appropriate one for more intensive residential development. These factors are recognised in the Council's own Strategic Statement, and the Good Design Guide at E1.C3 also suggests that such a location is appropriate for more intensive housing development.

The question which arises in these proceedings is whether or not the particular intensity of the development proposed is acceptable. I agree with the views of Mrs Monk in the decision quoted by Mr Pitt (Appeal 1997/47029 Monde Developments Pty Ltd v City of Stonnington - unreported), however, that the appropriateness of a particular proposed density of development is to be judged not by its compliance with some magical number or formula, or indeed whether the proposal falls just inside or just outside the 7km line referred to in the Good Design Guide, but on factors on such as whether the amenity impacts for neighbours are reasonable, the manageability of off-site traffic effects, and an acceptable relationship to neighbourhood character. I will turn now to such considerations.

Before doing so, however, I would observe that the land in question is a substantial lot of 1346sq m and has a frontage much greater than 17m to Glenferrie Road. In these circumstances, the Good Design Guide would recommend that higher densities of development are generally appropriate.

This was the principal factor upon which Mr Liston rejected the earlier proposal. He considered the building at the corner of Malvern and Glenferrie Roads, and the residential building extending northward along Glenferrie Road, separately. He found both components of the development unsuitable. In relation to the part of the development extending northward along Glenferrie Road, he found the character of Glenferrie Road to be strongly residential and that there was a rhythm created by substantial dwellings on large blocks set back behind well established front gardens, and the proposal before him was seen not to be respectful of that rhythm of development.

It seems to me, however, that that repeating rhythm of development has been somewhat disturbed since Mr Liston's decision, on both sides of Glenferrie Road in the block extending north to Church Street, and extending even further northwards on the western side of Glenferrie Road. There is a considerable amount of building activity which is creating substantial structures which are built closer to the main road and side street frontages than earlier buildings. The subject site sits well within this area of redevelopment and is not therefore inappropriate in streetscape terms. The proposal is also less substantial than that considered by Mr Liston, despite its somewhat heavier architectural form.

It must be said that the proposal is for a not insubstantial building - which extends in three storey form along 30m of the Glenferrie Road frontage. However, the building is well articulated with a 9m section at the north-eastern corner set back some 13m from the site's frontage. This leaves an only 20m long section set back approximately 6m from the frontage. It will be that part of the building which will be most readily apparent from the main road. It is my assessment that while larger than some other buildings in the main road, it is nevertheless a graduated step up in scale, rather than a major departure from the existing built form.

I also specifically find that the architectural style proposed is one which is an appropriate blend of commercial and residential styles. The building therefore makes an appropriate transition between the hotel site and the residential properties to the north.

I also find the staggered front setback proposed for the development acceptable: the building steps between the reduced hotel frontage setback and the substantial Phillips' dwelling setback.

These were considered by Mr Liston in the earlier decision. He found that the traffic effects of the then much larger number of vehicles associated with that proposal to be acceptable, based on the expert evidence presented to him. In the present proceeding, while Mr Phillips has expressed concerns about increased vehicle movements near the Glenferrie Road/Malvern Road intersection, the expert road authority - VicRoads - has not objected to the proposal and merely required conditions to facilitate ease of access and egress.

I specifically find that the proposal is acceptable in this respect. I would particularly observe that the accessway to the site is located some 60m from the road intersection, with access to the hotel car park located between. I note also that there was a drive-in bottle shop operating earlier at this location, and that traffic generation for the two sites would likely be reduced from previous levels.

This issue is perhaps the key one in this appeal. The particular matters to be addressed are those of overlooking, overshadowing and the presentation of visual bulk to adjacent properties.

I turn first to the properties managed by Mr Blair. It is my assessment that it is only the property at Unit 4, 1105 - 1107 Malvern Road, where any major concerns arise. This is because of the greater distance between Units 1, 2 and 3 on that property, from the subject land. In particular, I am satisfied that the privacy of those properties would be protected from overlooking even if the proposed screening to be attached to windows and balconies of the development itself were not included, by intervening walls and vegetation, the angle of view and distance alone. I am also satisfied that there would be no significant disamenity arising due to additional overshadowing to those properties. They are beyond the 9 a.m. shadow at the equinox. So far as visual bulk is concerned, the outlook to those three properties is due north, with the subject property to the north-east. I believe that the angled view to the development in combination with the landscaping proposed at the rear will mean that the proposal will not be visually unacceptable.

So far as Unit 4 at 1105-1107 Malvern Road, is concerned, I note that the open space for that unit is only some 4 - 5m from the first floor balcony to Flat No. 104. That balcony is proposed to have screening along the western side, however, to 1.6m. I note similarly that the balcony to Unit 102 which is some 8m away from the open space for Unit 4 also has a 1.6m high screen. I have observed that there is some potential for overlooking from bedroom 2 of Unit 105, however the distance to the open space for Unit 104 is just on the 9m which the Good Design Guide says is adequate to protect privacy by distance alone, and the room in question is a bedroom. These factors in combination with the trees around the private open space are adequate in my view to ensure no unreasonable invasion of privacy. I note also that the west-facing terrace for Unit 203 at the south-western corner of the building is equally proposed to have sight screens.

So far as overshadowing to that property is concerned, it is clear that the shadows retreat from the open space sometime before 11.00 a.m. at the equinox and the Good Design Guide's requirement for the open space to be free of shadow for four hours is met.

In relation to visual bulk, the combination of trees on the open space area for Unit 4 and along the rear boundary of the subject development will serve to adequately soften the appearance of the new building.

There can of course be overshadowing of this property given that the subject site is located southward of it.

In relation to the visual bulk of the development as presented to the Phillips' property, I am of the view that the setback at ground and first floor levels of 3m to the common boundary, and 5.5m for the second floor, will mean that there is a not unreasonable presentation in the context of built form in the area. Further, I believe that the landscaping on the Phillips' property - the Cypresses along their rear yard, the substantial trees in the front setback and the tree fern outside their dining room window - will provide effective screening to the proposed development. I am also satisfied that the setback of the proposed development to those plants on the Phillips' property is sufficient to ensure that there would be no adverse interference with the root systems of those plants.

I nevertheless propose to include the modification to the Unit 106 balcony and the terrace of Unit 204 recommended by Mr Blythe which will assist in making the development more visually recessive from the Phillips' property.

In relation to overlooking, I have carefully considered the evidence of Mr Blythe and my inspection helped clarify the potential for invasion of privacy. As Mr Pitt submitted at the hearing, the assessment to be made is not whether any overlooking occurs, but whether the extent of overlooking is unreasonable. That needs to be judged, as he rightly submitted, within the context of the level of overlooking already available in the area, such as from the upper floors of the adjoining hotel site.

I am of the view that downlooking from the northern elevation of the subject development to the Phillips' property would be generally precluded in the case of their dining room window by the tree fern and existing paling fence with trellis, given the proximity of the dining room window to those elements. I do not believe that it is necessary therefore to screen the conservatory window in the subject development to prevent overlooking to the Phillips' dining room window.

I then considered overlooking to the glass roofed conservatory area at the rear of the Phillips' property. I accept Mr Phillips submission that you can see into that area through the glass roof and in turn through the glass doors into his dining room. It is my assessment that additional screening is required to prevent overlooking from the conservatory window of Unit 205 into that part of the Phillips' premises. It seems to me that a wing wall on the western side of the conservatory window of Unit 205 would be an appropriate technique to preclude that overlooking.

I have also given consideration to the overlooking from bedroom 1 of Units 106 and 107 which again are located directly opposite the glass roofed conservatory on the Phillips' property. I am of the view that screening is required to prevent downlooking into that roof area. This might be effected by such techniques as the installation of wide planter boxes or directional screens.

One further observation in relation to overlooking for the Phillips' property is that Mr Phillips was concerned that the line of pleached Pear Trees along the northern boundary of the site might not be maintained once the individual units were sold. I note that it was part of Mr Blyton's evidence that an irrigation system would be installed as part of the landscaping works, and I believe that it is appropriate to require this by condition to at least in part address Mr Blyton's concerns.

This is a matter which did not arise in Mr Liston's proceeding but three issues arise in this respect in the present review. The first of these is the amount of sunlight available to the open space areas associated with the south-facing units, given that a square block design has been adopted for the development. However, as the Council officer's report noted, the development is reasonably well designed in this respect and that east- and west-facing balconies have been provided even for the southernmost units.

Secondly, Mr Blair raised the matter of safety for pedestrians who access the rear laneway to the west of the site from the subject land. That laneway provides access to some 10 car parking spaces on other properties.

I do not find that any particular dangers would arise, however, as the access from the subject land would be onto a straight stretch of the laneway with clear views in either direction and the level of traffic in the laneway is not high. In any case, I do not expect that the pedestrian gate will be much used given the location of the resident parking spaces in the basement to the subject building. Rather, the gateway serves as a service entry facilitating delivery of large goods or furniture, and as an emergency exit. It is a desirable feature of the development.

The third matter raised by the Council was the issue of noise from the access driveway to the flat located immediately above it at first floor level (Unit 107). It seems to me inappropriate to require that the balcony for that unit be sound insulated, especially in the context of ambient noise levels from Glenferrie Road, but I propose to require that the flat itself be acoustically treated to the satisfaction of the Responsible Authority.

Another matter which was raised at the hearing by the Responsible Authority was the setback of the southern elevation of the building from the car park for the hotel site. The Council officer's report recommended that Unit 104 be setback 1.9m rather than the 1.3m proposed, to accord with the Good Design Guide provisions. In my view, those set back provisions in the Good Design Guide are designed to protect amenity for adjoining residential properties, and should not be applied here. I also do not see any visual benefit for the hotel from the Council's suggested condition. The Council officer also suggested that all south-facing windows of Unit 104 be screened. Again, given the angle of views to the residential properties to the west, and the direct outlook to the car park, I do not believe that there will be any benefit associated with this screening which would have adverse effects for the occupants of the units.

Another matter raised by Mr Phillips was that of available visitor car parking. I note that the Council have suggested that four visitor spaces be designated in the basement. I believe that this meets his concerns.

Lastly I wish to refer to the matter of landscaping. I note that one of the reasons for the deferral of the Responsible Authority's decision on this application on the 4th of October 1999, was to allow further assessment of tree retention. I will say that my inspection of the subject site confirmed the impression given by Mr Blyton's evidence that no proper assessment has been made of the existing landscape features of the site and the opportunities to retain those in the interests of a short-term integration of the development with the landscape character of the area.

I was singularly unimpressed by the fact that the landscape architect had not been on the subject land.

It seems to me that the opportunity perhaps exists to retain two substantial trees at the north-eastern corner of the site. One of these is located on the common boundary with the Phillips' property approximately 13m from the frontage and appears to be a Golden Elm, and the other is located within metres of the north-eastern corner of the site and is perhaps an Alder. I propose to require that the landscaping plan which is prepared for the site looks to the retention of those two trees. I have nevertheless included in the condition that their retention is to occur only if this is to the satisfaction of the Responsible Authority having regard to the practicalities of building construction and the completion of a cohesive landscape plan.

I also advise that I gave consideration to requiring the retention of the existing front boundary fence. This is of red brick construction and as earlier noted is attractively covered with climbing Fig. The fence does not appear to be of unsound construction. It seems to me that a high fence in this location is not inappropriate having regard to traffic volumes on Glenferrie Road and the hedge-like appearance is consistent with other fencing in the general locality.

It seems it might have been possible to incorporate the existing fence within the landscaping of the site. However this has not been done.

After some thought, I have determined not to require its retention having regard to the fact that the proposed building itself is to be of rendered masonry construction and painted in a light colour. Such an approach to the building itself is not inappropriate given the light coloured render on the hotel site and on a number of other properties to the north of the subject land. To the extent that some new red brick fence would be required to complete the frontage enclosure, I believe that this would be inconsistent with the architectural choice for the building.

Deal Corporation Projects Pty Ltd v Stonnington CC [1999] VCAT 2217

At a glance

Court

Decision date

Source

Judgment (124 paragraphs)

Deal Corporation Projects Pty Ltd v Stonnington CC [1999] VCAT 2217 (31 December 1999)

Parties