[2004] VCAT 563

The decision of the Responsible Authority in relation to Planning Permit Application No. TPA /30584 is affirmed. It is directed that a permit must not be granted.

Mr Ian Pitt SC of Best Hooper Lawyers. He called the following persons to give evidence:

* Ms Roz Hansen, Town Planner with Hansen Partnership Pty Ltd;

* Mr Robert McGauran, Architect and Urban Designer with McGauran Giannini Soon;

* Mr Caimin McCabe, Environmental Engineer with Scott Wilson Irwin Johnson; and

* Mr Robert Burton, Acoustic Consultant with Burton Acoustic Group.

Mr Terry Montebello, Solicitor with Maddocks Lawyers. He called evidence from Mr John Neimann, Urban Designer.

Mr Michael Fooks and Ms Magdalena Zurek in person. Ms Yvonne Nimmo appeared for Mr Danny Wallis. A written submission was also received from Ms Shirley Tanner and there was no objection to it being taken into consideration by the Tribunal.

1 This was an application under Section 77 of the Planning and Environment Act 1987 (P & E Act) against Monash City Council's refusal to grant a permit for the development and use of a part two and part five level residential hotel at 1384 Dandenong Road, Hughesdale.

2 The land is located at the south-west corner of Warrigal Road, a key intersection within the municipality being at the junction of two regionally important roads. It has a site area of 3159 sq m and was formerly occupied by a large car sales yard - a non-conforming use in this Residential 1 Zone.

3 The site is located approximately 1km from the Monash Freeway, 600m from the Oakleigh Shopping Centre and 1km from Chadstone Shopping Centre. Land abutting the site to the south and west as well as across Dandenong Road to the north is used and developed for residential purposes - an exception being a church on the north-west corner of the intersection.

4 Land to the east of Warrigal Road is zoned Industrial and is affected by a Design and Development Overlay stipulating that the preferred height for buildings is 7m and that buildings should be set back at least 20m from the frontage. The overlay refers to achieving a Garden City Character for this industrial area. The local policy for Industry and Business Development and Character, at Clause 22.03-1, where it refers specifically to this stretch of the Princes Highway, describes a future character; of

Redevelopment should allow the progressive improvement of the aesthetic quality of the main road corridors, eventually allowing the Princes Highway to present a positive image of the municipality to road users. Standardisation of setbacks as development occurs should enable the development of a substantial landscape strip along the Princes Highway. Businesses should still have a high exposure to the road, but tree planting within the setback with high canopies and clear trunks should soften the hard qualities of the Character Type and help enclose the Princes Highway and unify the diverse range of land uses.

5 Following the Tribunal's amendment of the application under Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), the residential hotel would comprise 60 one and two bedroom serviced apartments.

6 The development would include ground level parking for 59 cars accessed via two crossovers - one to Warrigal Road and one to Dandenong Road. The car park would be separated by a 1m wide landscape strip from the residentially zoned and developed properties immediately abutting to the west. Parts of the first floor would overhang the car park and accessways at ground level, with the setback from the southern boundary - abutting a two storey block of walk-up flats fronting Ruby Street - being approximately 6.4m and the setback to the single storey dwellings to the west being between 11 and 22m, increasing to 19m at Level 3. The setback from Warrigal Road to the east would be between 7.3 and 6.3m and from Dandenong Road to the north approximately 6m.

7 The application for permit was lodged with the Responsible Authority in June 2003. Because access to two Category 1 Road Zones (Warrigal and Dandenong Roads) is proposed to be altered, the application was referred to the Roads Corporation (VicRoads), under Clause 55 of the Act. Subject to appropriate conditions, VicRoads had no objection to the application.

8 Following the giving of notice of the application eight objections were received. On 26 August 2003, and consistent with its Planning Officer's recommendation the Responsible Authority determined to refuse a permit on the following grounds:

1. The proposed development is out of character with the existing residential development in the area, in particular with regard to excessive mass, bulk and scale.

2. The architectural style used for the building is box-like in character with a result that the built form is unsympathetic to the character of surrounding area.

3. The proposed development is an overdevelopment of the site, in particular insufficient setbacks from Dandenong Road and Warrigal Roads have been provided for.

4. Lack of ability to landscape the site to reduce the visual impact of the proposed buildings.

5. The proposed development does not provide for an appropriate level of on site car parking to serve the apartments and restaurant.

6. The proposed development will have an adverse impact on the amenity of nearby properties, in particular with regard to inappropriate visual impact and overlooking.

9 The application for review was lodged in September 2003. The stated grounds for review are:

1. The proposal is an appropriate outcome in terms of scale, mass and architectural detail having regard to the diverse character of the neighbourhood.

2. The proposal is an appropriate outcome for higher density residential accommodation being located on the intersection of two major arterial roads, historically developed for commercial purposes.

3. Adequate setbacks are provided to the arterial roads having regard to the site context making adequate provision for landscaping.

4. An approximate level of car parking is provided on site.

5. The proposal will not cause any unreasonable overlooking.

6. The proposal meets the appropriate standards under the planning controls concerning visual bulk.

10 Except for Mr Fooks and Ms Zurek who made oral presentations based on their statements of grounds, those parties or their representatives that attended the hearing as well as the witnesses called to give evidence tabled and spoke to written submissions or witness statements. These and the various documents tended in the course of the hearing have been retained on the Tribunal's file.

11 Following the hearing and in order to gain a better understanding of the submissions and evidence I inspected the subject land and neighbourhood at large.

12 The land is zoned Residential 1 under the Monash Planning Scheme. In addition to implementing the State and Local Planning Policy Framework, the purpose of the Residential 1 Zone as set out at Clause 32.01 is:

To provide for residential developments at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

13 Residential hotel falls within the Planning Scheme's nest of accommodation land uses. As such it is a Section 2 use in the Table at Clause 32.01-1 and requires a permit pursuant to Clause 31.01-2.

14 More specifically, Residential hotel is included within the land use term residential building. A permit is required pursuant to Clause 32.01-4 to construct a residential building within this zone.

15 Because the development comprises four or more storeys it is exempted from meeting the requirements of Clause 55 (the ResCode provisions). This not withstanding, the decision guidelines at Clause 32.01-4 provide that the objectives, standards and decision guidelines of Clause 55 may be considered, as appropriate.

16 As noted already a permit is required to alter access to a Category 1 Road Zone. This requirement is set out at Clause 52.29 of the Scheme. Because this aspect of the application was not in contention I need refer to it no further.

17 A permit is also required pursuant to Clause 52.06-2 to reduce the number of car spaces required to be provided for a residential building pursuant to Clause 52.06-1 of the Scheme. Following the Tribunal's amendment of the application - which resulted in a restaurant being deleted from the proposal - the issue of car parking was not in contention. Accordingly there is no need to refer further to this aspect of the application.

18 Clause 65 of the Scheme sets out decision guidelines that must be considered as appropriate before deciding on any application for permit under the Scheme. This clause commences with the following statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

19 The decision guidelines relevant to the application include the purpose of the zone and the matters required to be considered under the zone or other controls as already set out. The relevant provisions of the State and Local Planning Policy Framework must also be considered and in this regard Clause 19.03, setting out the State Policy for Design and Built Form has particular relevance. The stated objective of this policy is to achieve high quality urban design and architecture that:

* Reflects the particular characteristics, aspirations and cultural identity of the community.

* Enhances liveability, diversity, amenity and safety of the public realm.

* Promotes attractiveness of towns and cities within broader strategic contexts.

20 At Clause 19.03-2, referring to general implementation of this policy, it is stated that:

Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. (emphasis added)

21 At the local level Clause 21.04 sets out residential strategic objectives and refers to the need for dwelling diversity to meet the needs of Monash's multi-cultural population, for the achievement of high standards of architectural design and landscaping and for development to be appropriate to the residential environment.

22 A particular local policy at Clause 22.01 refers to residential development and character and the need to build upon the important contribution of landscaping to the Garden City Character of Monash.

23 The principal issues in this proceeding can be summarised as follows:

* The strategic encouragement for a development and use of this nature.

* The extent to which the layout and design of the previous use and development should be taken into account in the design of the proposed development.

* The development's interface with its built form context and whether it would contribute to local character, enhance the public realm while minimising impact on neighbouring properties.

24 There was no argument that the proposed use would fall within the Scheme's definition of residential hotel, that is:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines and gambling.

25 The development would comprise some 60 one and two bedroom serviced apartments which would clearly fall within the definition of serviced rooms.

26 While certainly a residential hotel falls within the set of uses referred to as accommodation I am not persuaded that this could be regarded as permanent housing. The strategic encouragement given to increased residential densities in established urban areas and in particular in and adjacent to activity centres is not generally understood to extend to include accommodation of the sought proposed here. Indeed I accept Mr Montebello's submission that residential hotels are better described as a part of the existing services and infrastructure which increased residential densities are intended to take advantage of and make better use of in established urban areas. Thee can be no question that residential buildings have a place within the Residential 1 Zone and are eminently suited to such a zone and indeed this site. However, I find nothing in the Planning Policy Framework or indeed in the Metropolitan Strategy - Melbourne 2030 to suggest some sort of strategic imperative for this form of accommodation that could be said to warrant greater weight being given to this particular development at this location than might otherwise be the case.

27 Considerable reliance was placed by the witnesses called on behalf of the permit applicant - primarily Ms Hansen but also Mr McGauran and Ms Frank-Mas - on the existing development, most notably the extent of hard standing and the paucity of landscaping. The rationale was to suggest that the proposed development is better than that which exists and is therefore worthy of support. I am not persuaded that this is an appropriate approach to adopt and have found that it served to undermine the evidence of those witnesses.

28 There is nothing in the Planning Scheme to suggest that consideration should be given to whether or not a proposal is better than that which exists now. Even the existing use decision guidelines at Clause 63.12 - were they to apply and it was not suggested to me that this site maintains its non-conforming use rights - require a responsible authority to consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met. Rather, when considering an application for permit a decision-maker is required to consider whether the development or use is an acceptable outcome in terms of the decision guidelines as they stand. There is nothing in any of the decision guidelines relevant to this application to suggest that a permit can be justified if a proposal is better than what exists.

29 The recent decision of the Tribunal in relation to the former Reg Hunt car yard at 1283-1291 Dandenong Road, Malvern East, (P2410/2003 Malvern East Property Pty Ltd v Stonnington City Council & Others) has relevance here. Although the Tribunal in that application acknowledged the point of difference or incident factor which the former use had established, the Tribunal's decision to grant a permit for a development of up to six levels was not based on it representing a better outcome to that which formerly existed. Rather the decision was based on the merits of the application before it. In the Malvern East case the Tribunal was particularly impressed by the way in which the site had been designed to take advantage of the opportunities and constraints of its location and in particular how the building mass had been distributed in a manner that allowed it to sit comfortably within this its natural and built form context.

30 As with the Malvern East case the principal issue in this proceeding was the development's interface with its natural and built form context. A distinguishing feature in this case compared to the Malvern East case, is that the land immediately abuts residential properties whereas in the Malvern East case, residential properties were sufficiently removed from the land to not present any direct interface issues.

31 It was Ms Hansen's suggestion and I agree with her, that the subject site occupies a transitional position between its abutting main road environment to the north and east and the residential hinterland to the south and west. As noted already Clause 19.03 refers to the need for developments to contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. What follows is an assessment of the development's various interfaces against this desired policy outcome.

32 In relation to the site's Dandenong and Warrigal Road frontages, both Messrs Neimann and McGauran agreed that these two roads represent an opportunity for a development of some scale, especially adjacent to the corner proper. As noted by Mr McGauran these frontages enable the employment of different tactics compared to Ruby Street, the residential street to the south.

33 Where these two witnesses differed in their opinions was in the way this opportunity for greater scale should be managed - especially in terms of the building's massing . It was Mr Neimann's opinion that the design of the development suffered from a reliance on what he termed façade articulation as opposed to building articulation as a means of enabling the built form mass of the development to settle into its context. In addition, whilst reasonably satisfied with the setback proposed for Warrigal Road, it was Mr Neimann's opinion that a greater setback should be required from Dandenong Road in order to respond to the potential for this thoroughfare to develop a boulevard character consistent with the Garden City objectives set out in the Local Policy Framework. In this regard he referred also to the 20m setback suggested under the DDO provisions for the Industrial zoned land to the east and to the 10m residential setbacks to the west.

34 Having inspected the subject land and surrounding area I prefer the evidence of Mr Neimann that the built form mass of the building needs to be moderated by more than simply façade articulation in order to sit comfortably in its context. I also agree that a greater setback to Dandenong Road is warranted.

35 Compared to the Bamfra case referred to by Mr Pitt (Bamfra Nominees Pty Ltd v Darebin City Council [2003] VCAT 1741 (24 November 2003) there is no strategic or existing context justification for a building of this scale at this site. Put simply it would look out of place and therefore not contribute positively to local urban character or enhance the public realm.

36 In the Bamfra case the Local Policy Framework identified a four to eight storey built form context for High Street and the development in that case would have not looked out of place in that preferred future character context. In addition, whilst achieving elements of 10 storeys the buildings also incorporated considerably more building articulation over a substantially larger site area than is the case here. Similar contrasts can be made between the proposed building and the Malvern East building in terms of carefully moulding or massing the building to respond to its context.

37 A greater setback to Dandenong Road is also warranted given the strategic emphasis for a Garden City Character within the Local Policy Framework, complimented as it is by the DDO to the east and existing residential development to the west and north. Whilst I do not suggest that there is specific policy support for Dandenong Road to develop into another St Kilda Road, it is nevertheless relevant to observe how in St Kilda Road the setbacks that contribute to its boulevard or garden character are substantially greater than are proposed here.

38 This is not a case where I feel confident about making suggestions as to what might be an appropriate height of building for this corner as it is not necessarily the overall height that is of concern but the massing of the building to achieve that height. However, should guidance be sought I would suggest that a three level building with a fourth or even fifth level component at the corner might be appropriate.

39 The residential interface, that is to say the western and southern elevations are more problematic. This was recognised by Mr McGauran when first presented with these plans and clearly his involvement resulted in some improvement. However I have not been able to be persuaded that his changes went far enough. Rather, his opinions as to what would be an appropriate outcome for this interface seem to have been unduly influenced by the existing car yard.

40 I agree with Mr Montebello and Mr Fooks that despite what on paper appear generous setbacks between the building and adjoining residential properties, the management of the change in height in relation to those properties has not been skilfully executed. The result is an uncomfortable relationship and one that would be visually intrusive from the rear yards of the abutting properties, most notably those to the west. In the absence of any strategic basis for greater scale at this residentially zoned location, this is not an appropriate response to the site's context.

41 I also agree with Mr Fooks that a car park of the extent proposed here and with only a 1m landscaping strip to ameliorate the visual impact of a three to five level building from the dwellings to the west, is not a quality architectural or urban design outcome and could not therefore be said to meet the objectives of Clause 19.03. The manner in which the building cantilevers over the car park is also architecturally awkward, adding to the visual dominance of the structure.

42 Ms Frank-Mas admitted that her landscape plan was as much as she could do with what had been given to her. This can be contrasted with her involvement at the initial design stage in the Malvern East project. Indeed in the Malvern East case her design for integrating the development into the surrounding parkland context was a vital element of the proposal.

43 I also agree with Mr Fooks that this site is not so constrained as to make the proposed design the only possible development solution. I accept that in the hands of an architect with an appropriate brief - possibly one that did not use the former car yard as its starting point - that a more acceptable solution for addressing the interfaces with the residential area to the west could be devised.

44 In conclusion the Tribunal has been unable to be persuaded that the development before it would contribute positively to local urban character or enhance the public realm while minimising impacts upon neighbouring properties. Rather, it would stand incongruously at this site - including from adjacent residential properties. There is no strategic justification for such an incongruous outcome - for example a local policy for greater built form at this site or between it and the Oakleigh Shopping Centre. Neither is there any strategic imperative for this form of accommodation. While I would agree that the main road location and the generous dimensions between the intersections' built form edges provide justification for greater scale, I find in the context of the clear strategic support for creating a Garden City character that the design requires greater concentration on landscaping along Dandenong Road and a more clever design response in terms of its built form articulation.