Victorian Civil and Administrative Tribunal|2010-07-14

Emond Golf Pty Ltd v Frankston CC [2010] VCAT 1183 (14 July 2010)

Emond Golf Pty Ltd v Frankston CC [2010] VCAT 1183

For all the plans included in the permit application, substitute the plans prepared by Thomas Anderson Design entitled 'Proposed Apartment Development 261 Nepean Highway Seaford' Job 08-0396 Drawings dated November 2009 Issue E and numbered 1 - 6 (inclusive).

The decision of the responsible authority in relation to permit application no. 52/2009/P is set aside.
A permit is granted in relation to land at 261 Nepean Highway, Seaford. The permit will allow -
- Construction of six dwellings in a three storey building and alteration of access to a road in a Road Zone Category 1 in accordance with the endorsed plans
The permit is subject to the conditions contained in Appendix A to these reasons.

Mr Nick Hooper, town planner, Taylors Development Strategists Pty Ltd.

Ms Adrianne Kellock, town planner, Kellock Town Planning Pty Ltd

Mr Ian Roger appeared in person. There was no appearance by Wendy Clark or John Nash.

Application under Section 77 of the Planning and Environment Act 1987.

The land abuts Road Zone Category 1 (Nepean Highway) (RDZ1).

Clause 32.01-4 (construction of two or more dwellings in Residential 1 Zone)

Clauses 11, 12, 14, 16.02, 19.03, 21.04, 22.17, 44.06, 52.29, 55 and 65.

The land is regular in shape, has a frontage of 19.05 m to the Nepean Highway, a depth of 34.02 m, and an area of 648 sq m. It is located 50 m south of McCulloch Avenue. The highest point of the land is 4.02 m AHD about the mid point of the frontage and the lowest point is 2.81 m AHD on the south east corner of the land. The land is developed for a single storey dwelling used as a boarding house.

On 29 December 2009, the Frankston City Council (the Council) refused a planning permit to construct eight dwellings in a four storey building at 261 Nepean Highway, Seaford (the land). The Applicant requested this decision be reviewed by the Tribunal. A number of objectors, including Mr Ian Roger, are opposed to the grant of a permit.
At the hearing, leave was granted to the Applicant to amend the permit application. The main effect was to remove the top storey of the proposed building. The permit application now proposes to construct six dwellings in a three storey building (the proposal).
The ground floor is part basement and part undercroft and is set aside for car parking and services. Dwellings 1 to 4 on the first floor each have two bedrooms, and dwellings 5 and 6 on the second (or top) floor each have three bedrooms. The car park contains nine car spaces - one space for each of the four two-bedroom dwellings, two spaces for each of the two three-bedroom dwellings, and one visitor space. The architecture is contemporary, building materials are mixed, and the roof is largely flat.
The Council and Mr Roger acknowledged that the amended plans are a considerable improvement. However, the Council submitted that the proposal could not be supported without imposition of conditions requiring significant redesign.
The key issues or questions for determination are -
- Is the proposal consistent with State and local policy?
- Does the proposal respect neighbourhood character?
- Is the visual bulk of the proposal excessive?
- Does the proposal achieve a satisfactory standard of design?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Frankston Planning Scheme (the scheme), I have decided to grant a permit. My reasons follow.

The Council and Applicant did not refer to the following preliminary issues at the hearing. They made brief submissions when the Tribunal identified them.

The land is about 150 m east of the coast (Port Phillip Bay) and the whole of the land is under 5 m above high water mark. The Kananook Creek (the creek) is located about 40 m east of the rear of the land. Adjoining dwellings are located between the land and the creek.
Clause 15.08 of the scheme provides that it is State policy to 'plan for and manage the potential coastal impacts of climate change' and that -

Planning to manage coastal hazards and the coastal impacts of climate change should:

Plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change.
Apply the precautionary principle to planning and management decision-making when considering the risks associated with climate change.
Ensure that new development is located and designed to take account of the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift.
Ensure that land subject to coastal hazards are identified and appropriately managed to ensure that future development is not at risk.
Avoid development in identified coastal hazard areas susceptible to inundation (both river and coastal), erosion, landslip/landslide, acid sulphate soils, wildfire and geotechnical risk.

In some circumstances, the Tribunal has required an assessment of the land's vulnerability to the impacts of river and coastal hazards in determining reviews of decisions on permit applications.[2]
An assessment is not required for this application. First, the declared flood level of the creek is 1.56 m AHD. If flood levels were to rise in the long term by 0.8 m to 2.36 m AHD, this is still 2.14 m below the lowest floor level of the dwelling on the first floor (ie 5.50 m AHD). Second, although the highest point of the land is below 5 m AHD, the Nepean Highway is located between the land and the coast. As a significant item of State infrastructure, the land would get the benefit of any future works to protect the Highway.

The proposal is a high impact activity.[3] The land is within 200 m of the coast and, unless all the land has been subject to significant ground disturbance, the land is an area of cultural heritage sensitivity and a cultural heritage management plan (CHMP) is required before any permit could be granted.[4]
The Applicant tendered a report prepared by an archaeologist on 21 August 2009 concerning whether the land had been subject to significant ground disturbance and whether there was a need for a CHMP. The report states that buildings on the land cover more than 70% of the land and that both the rear and front yards are completely paved. The report concluded that the land had been subject to significant ground disturbance because machinery would have been used in initial land clearance, site preparation and construction of the buildings and works on the land.
In Azzure Investment Group Pty Ltd v Mornington Peninsula SC,[5] the Tribunal accepted that significant ground disturbance can be established from comparative and contextual information. Having regard to the fact that the land is a small urban lot, is part of surrounding land that has been levelled years ago for urban development, has been substantially developed with buildings, driveways and urban services, I am satisfied that the land has been subject to significant ground disturbance under the principles in this case.
A CHMP is therefore not required before the grant of a permit.

Is the proposal consistent with State and local policy?

There was no disagreement that the proposal is broadly consistent with State policy.
Local policy recognises growing demand for medium density housing. It identifies areas that are more suitable to accommodate more of this housing. The land is located in an area where increased housing densities are encouraged.
The proposal is therefore consistent with State and local policy.

Under the Council's neighbourhood character study, the land is located in the Seaford 7 precinct, where modest timber and fibro cottages in the narrow strip between the Bay and the creek are being replaced by two and three storey dwellings.
The preferred character statement and design objectives emphasise minimising impacts of buildings over two storeys on the streetscape, using lighter building materials to complement a coastal setting, ensuring adequate side and rear setbacks, and reasonable view sharing.
The Council's concern is that the basement presents as a storey. This is said to result in additional overall building mass, and creates ground level balconies, and excessive privacy treatments along the north boundary and for the first floor windows. It is also concerned that the front elevation design exacerbates its height and mass, and building materials lack integration.
In this case, weight needs to be given to the context of the land in assessing respect for future character. The land is an infill site, being an island surrounded by a large, medium density development of 17 two and three storey townhouses on three sides.
The proposed three storey (two levels of dwellings plus basement) building is consistent with this prevailing surrounding character. Side and rear setbacks are generally smaller in the proposal than the townhouse complex, but the townhouse complex had to respond to road and creek abuttals. The south side setbacks of the proposal and of the townhouse complex (ie units 14 to 17) are similar.
Lack of respect for existing or preferred character is not grounds on which to refuse a permit.

The proposal presents as a two and a half storey building from the Nepean Highway. Landscaping will help to obscure the part basement level and, over time, the building will be seen as a two storey building. Along both side boundaries, as the land falls away from the frontage, and along the rear boundary, the building is viewed as a three storey building. At the rear boundary the overall building height is 9.195 m.
The top storey is not set back 3 m from the storey below at the frontage, in accordance with local policy. However, the relatively small site, and the degree of articulation in the front elevation and varied use of materials assists in reducing bulk.
The north side setbacks are nil (in part) at the ground (part basement) level, 1.8 m at the first storey and 3.3 m at the top storey. South side setbacks are 1.2 m at ground (part basement) level and first storey, and between 2 m and 3.3 m at the second storey. Rear setbacks are at least 1.2 at the ground (part basement) level, 1.0 m at first storey, and 4.8 m at the top storey. Balconies protrude into these setbacks at various points. The length of basement wall (about 18 m) located on the north side boundary is satisfactory because it abuts an open parking and garden area of the townhouse complex. Being on the south of this area, it will not shadow it any way. In the unusual context of the site, the recessive upper levels plus wall articulation and lightweight balconies all assist in reducing visual bulk.
Mr Roger's dwelling (townhouse 13) is located about 8 m east of the rear boundary of the land. He has a particular concern about the height and bulk and of the proposal along the rear boundary, and consequent loss of coastal views. Both the proposal and his dwelling are three storey buildings as they face each other. The proposed building is 9.1 m above the natural ground level at its rear boundary. Mr Roger's dwelling is 9.4 m high (to the top of its parapet) above the natural ground level at the front of his dwelling. Natural ground level at the front façade of Mr Roger's dwelling would be about 60 cm lower than the same level at the rear boundary of the proposed building, according to the plans of the proposal and documents tabled by Mr Roger. Hence, overall height of the two buildings will be similar.
Mr Roger will lose a degree of an open outlook as the separation between the respective first floors will be about 9 m and between the respective top floors will be about 12 m. However, the loss of outlook is not unreasonable. A reduced view corridor to the coast is likely to remain available from top floor windows of Mr Roger's dwelling, due to the 3 m setback of the top floor of the proposed building from the south boundary. It is well established that loss of views is no proper basis on which to refuse proposals.
The overall height of the proposed building will be lower than the adjoining three storey dwelling abutting the north side of the land.
I therefore conclude visual bulk is not unreasonably excessive.

Does the proposal achieve a satisfactory standard of design?

The Council was concerned that minimal side and rear setbacks will provide inadequate opportunities for canopy landscaping. The local policy does not expressly seek to provide canopy landscaping in this location, but planting of appropriate coastal species. Proposed landscaping strips, though not large, can provide sufficient space for landscaping using coastal species to soften the appearance of the building.
The proposal complies with most of the cl 55 design and amenity standards. Site coverage exceeds the applicable standard. Section A-A on the plans shows that the north side boundary setbacks do not comply, in part, with the applicable standards. However, Section A-A does not appear to accord with the floor plans because Section A-A shows a 2 m side setback from the north boundary whereas the top floor plan show a setback of 3.7 m at Section A-A. The privacy standards are met but require extensive screening of windows and balconies in the proposal. The position of the stairwell (at the front of the building and not its side) reduces the 'active' useable frontage and viewlines, but is not a basis to require a redesign.
The building is of contemporary design. Local policy aims to achieve a lightness of structure and use of subdued colours. The mixed external building materials included bold, dark purple-coloured tiled sections on each of the four elevations. The size of the section on each elevation varies, but on the south elevation, the section is up to 12 m wide over two floors. The use of bold-coloured tiles is inappropriate. Use of more lightweight materials is needed.

Do any other matters warrant rejection of the proposal?

The new access to Nepean Highway consists of a two-way driveway into the basement. This replaces the existing and inappropriate full length crossover. VicRoads does not oppose the grant of a permit subject to conditions. The parties do not oppose the conditions.
The Country Fire Authority does not oppose the grant of a permit subject to the inclusion of three conditions. The parties do not oppose the conditions.
Mr Roger was also concerned about excessive west wind channelling near his dwelling preventing reasonable use of his first floor south-facing balcony. There was no evidence of these effects and the extent to which they would be unreasonable. He is also concerned about the spread of fire from the proposed building to his dwelling, the clearance of alleged asbestos in existing buildings to be demolished, the parking of construction vehicles and the loss of market value of his dwelling. To the extent these issues are relevant, I have given them consideration and concluded individually and collectively they are not a proper basis on which to refuse a permit.

One of the VicRoads conditions requires a redesign of the basement ramp so that it is flatter at its entrance (ie 1:20 for first 6 m). The Council's representative observed this may require the first floor level to be raised at the entrance, with a consequential raising of the overall building height. The Applicant's representative considered the condition could be met without any raising of overall height. There was no objection to the inclusion of a condition to this effect. There is also a consequential risk that the ramp may be longer as a result, and that this may affect the capacity to provide nine car spaces in the basement. I will leave this to the Council and Applicant to resolve, but observe there are generous storage areas (about 15 cubic metres each) for each dwelling and these areas could be reduced if required.
In the front setback, the proposal includes a pedestrian ramp to the entrance at the first floor. The Building Code of Australia does not require a ramp and could be deleted. Residents will enjoy lift access from the basement. In light of the local policy and the importance of landscaping, the area occupied by the ramp would, on balance, be better used as garden.
A condition is required to ensure side setbacks, especially the north side setback, complies with setback standards. The Applicant did not oppose this condition.

For the above reasons, the decision of the responsible authority is set aside and a permit is granted subject to conditions.

Construction of six dwellings in a three storey building and alteration of access to a road in a Road Zone Category 1 in accordance with the endorsed plans

Prior to the commencement of works, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale, with dimensions, and three (3) copies must be provided. The plans must be generally in accordance with the amended plans prepared by Thomas Anderson Design entitled 'Proposed Apartment Development 261 Nepean Highway Seaford' Job 08-0396 Drawings dated November 2009 Issue E and numbered 1 - 6 (inclusive), but modified to show -
- (a) The basement ramp and vehicle crossover design consistent with the functional layout plan approved by Vic Roads and the Responsible Authority under condition 6. The basement ramp design must not result in an increase in the overall height of the buildings shown on the amended plans, except with the consent of the Responsible Authority.
- (b) An increase in side and rear setbacks of the building (including balcony screens), where necessary, to achieve compliance with the minimum setback requirements of Standard B17 of Clause 55 of the Planning Scheme.
- (c) The maximum height of basement, ground and first floor walls above natural ground level at both ends of all four elevation plans.
- (d) Detailed plans of proposed balcony and window privacy screens including materials, heights above finished floor level and the degree of transparency. These plans must demonstrate that the screens have maximum 25 percent openings, minimum heights of 1.7 metres above floor level and colours/materials that blend with the development, as required by Standard B22 of Clause 55.
- (e) Notations on the north, east and south elevations that all highlight windows have sill heights of at least 1.7 metres above finished floor level.
- (f) Replacement of the tile cladding proposed to parts of each of the elevations with a more lightweight material such as timber panelling or similar.
- (g) Deletion of the pedestrian ramp towards the southern end of the frontage and its replacement with landscaping.

The layout of the development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Floor levels as shown on the endorsed plans must not be altered without the prior approval of the Responsible Authority.

Prior to the commencement of works, a landscape plan prepared by a suitably qualified and experienced person or firm must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:
- (a) Information required by the Frankston City Council Landscape Town Planning Guidelines;
- (b) A survey (including botanical names) of all existing vegetation to be retained and/or removed.
- (c) Buildings and trees (including botanical names) on neighbouring properties within three metres of the subject site boundary.
- (d) Details of surface finishes of pathways and driveways, retaining walls, fence design details and other landscape works including areas of cut and fill.
- (e) Provision of canopy vegetation (minimum two metres height when planted) within the front setback and, where practicable, along the north, east and south sides of the basement. The density of planting around the basement perimeter must be sufficient to provide a visual screen along side/rear boundaries.
- (f) A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.
- (g) Landscaping species must:
  - (i) Be consistent with the Character Element "Vegetation" of Precinct Seaford 7 of Council's Neighbourhood Character Study;
  - (ii) Not include garden escapees (weed species) that are found in the sustainable Gardening in Frankston booklet are to be planted within the property; and
  - (iii) Consist of 40% indigenous and 40% native species appropriate to the EVC and with regard to all weedy species list on Council fact sheets.

An endorsed copy of the plan must form part of this permit.

A soil test is undertaken by a qualified geotechnical engineer to test for the presence of coastal acid sulphate soils, with the results to be forwarded to the Responsible Authority. The site must be assessed in accordance with EPA Publication 655 - Acid Sulphate Soil and Rock. If acid sulphate soils are found to be present, an Environmental Management Plan must:
- (a) Be prepared in accordance with the requirements of the Environment Protection Authority Industrial Waste Management Policy (Waste Acid Sulphate Soils) and forwarded to the Responsible Authority; and
- (b) All works on the site must be in accordance with the Environmental Management Plan.

Prior to the commencement of works on the site, the applicant is to submit a functional layout plan to VicRoads and the Responsible Authority for approval. The layout plan must be generally in accordance with the amended plans referred to in condition 1.
The edges of the vehicular crossover to be angled at 60 degrees to the road reserve boundary, to improve entry and exit conditions, to the satisfaction of the Responsible Authority.
Subsequent to the approval of the functional layout plan the applicant must apply for and receive written consent from VicRoads for works within the Nepean Highway road reserve in accordance with Section 63 of the Road Management Act 2004.
The applicant must pay the full cost of all roadwork's, drainage, road safety devices, service relocations, civil works, and any other associated costs i.e. all works to be complete at no cost' to VicRoads.
The applicant shall ensure landscaping adjacent to the car park access ramp is of such a height that site lines to passing vehicles and pedestrians, are maximised, to the satisfaction of the Responsible Authority.

Water Supply Requirements
- (a) Prior to the occupancy of the building, above or below ground hydrants must be provided within five metres of the main entry to the site to the satisfaction of the CFA.
- (b) Three copies of water reticulation drawings must be provided to CFA for approval.
- (c) Fire hydrants must be clearly identified as specified in the Fire Service Guideline "Identification of Street Hydrants for Firefighting Purposes".
Buildings and Works Requirements
- (a) Any building must be constructed consistent with a minimum Bushfire Attack Level (BAL) of BAL-12.5 in accordance with AS3959-2009.

All stormwater runoff generated from roofed and paved areas must be direct to the nominated legal point of discharge located in the north eastern corner of the property and discharged into the 225mm diameter Council stormwater drain to the satisfaction of the Responsible Authority.
Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value to the satisfaction of the Responsible Authority (Infrastructure Manager).
Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure are to be submitted and approved to the satisfaction of the Responsible Authority (Infrastructure Manager).
Water Sensitive Design Urban Design Principles (WSUD) are to be incorporated into the drainage design to the satisfaction of the Responsible Authority, which may include but not be limited to the following components or a combination thereof:
- On-site stormwater detention and rain water tanks
- Soil Percolation.
- Stormwater harvesting and re-use of stormwater for garden watering, toilet flushing, etc.
- On-site 'bio-treatment' to reduce dissolved contaminants and suspended solids.
Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include appropriate signage to S1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of service authorities and any other road openings sufficient to ensure public safety.

All relevant permits must be obtained from Council for works within the existing road reserves in addition to the planning permit.

The proposed vehicle crossing shall be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority (Infrastructure Manager).
The existing vehicle crossing shall be removed and the area reinstated to kerb and channel and landscaped to the satisfaction of the Responsible Authority (Infrastructure Manager).
Prior to occupation of the dwellings hereby permitted, areas set aside for parking vehicles, loading bays, access lanes and paths as shown on the endorsed plans must be :-
- (a) Constructed to the satisfaction of the Responsible Authority.
- (b) Properly formed to such levels that they can be used in accordance with the plans.
- (c) Surfaced with an all-weather sealcoat.
- (d) Drained and maintained to the satisfaction of the Responsible Authority.
- (e) Line-marked to indicate each car space and all access lanes and if necessary, the direction in which vehicles are to travel to the satisfaction of the Responsible Authority.
- (f) Car spaces, access lanes and driveways must be kept available for these purposes at all times.

All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwelling must be concealed from general view.

Exterior lights must be installed in such positions to effectively illuminate all pathways, car parking spaces and other public areas to the satisfaction of the Responsible Authority.
Outdoor lighting must be provided, designed, baffled and located to prevent any adverse affects on neighbouring land to the satisfaction of the Responsible Authority.

Before plans are endorsed under condition 1, 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.
- (d) Hours of waste and recyclables collection.
- (e) Method of presentation for waste management.
- (f) Strategies for how the generation of waste and recyclables from the development will be minimised.

When approved, the plans 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.

This permit will expire if one of the following circumstances applies:
- The development is not commenced within two (2) years of the date of this permit.
- The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] See eg Ronchi v Wellington SC [2009] VCAT 1206.

[5] [2009] VCAT 1600 (Dwyer DP, 14 August 2009)

Civil and Administrative Tribunal Act 1998

Heritage Regulations 2007

Emond Golf Pty Ltd v Frankston CC [2010] VCAT 1183

At a glance

Court

Decision date

Source

Judgment (54 paragraphs)

Emond Golf Pty Ltd v Frankston CC [2010] VCAT 1183 (14 July 2010)

Emond Golf Pty Ltd v Frankston CC [2010] VCAT 1183 (14 July 2010)

Parties

Legislation Cited (3)