Victorian Civil and Administrative Tribunal|2002-10-09|Before: Ms J, Mr J, Mrs J

EQ Property v Moreland CC and Ors [2002] VCAT 1245 (9 October 2002)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Planning and Environment List - s 77 Planning and Environment act 1987 - Moreland Planning Scheme - Mixed Use zone - Environmental Audit Overlay - five dwellings - triple storey - policy - neighbourhood character - car parking - traffic - amenity.

With respect to permit application no. MPS 2001/676, the Responsible Authority's decision to refuse the grant of a permit is affirmed. A permit must not be granted.

Responsible Authority: Ms J Sharp, Planning Officer

Applicant for Review: Mr E Patterson, Planning Consultant

Respondents: Mr J Belcher, Mr D Crocker, Ms R Whitmore, Mrs D Hooton and Mrs C Murch.

1. This was an application under 77 of the Planning and Environment Act 1987 against the Responsible Authority's decision to refuse the grant of a permit with respect to Permit Application No. MPS 2001/676.

2. The permit application seeks permission for alterations and additions to an existing building to create a three storey building that will be used for the purpose of five dwellings.

3. The permit application was lodged with the Responsible Authority on 13 July 2001. The Responsible Authority required notice of the application to be given and in response, it received 35 objections including a petition with 65 signatures. The grounds of objection were summarised by Ms Sharp in her submission as follows:

* Amenity impacts on near and abutting properties

4. On 10 November 2001 the Responsible Authority made its decision to refuse the application on the following grounds:

1. The proposal does not achieve a satisfactory level of compliance with the Good Design Guide.

2. The proposal does not meet the overall objectives of the Good Design Guide in relation to the elements of density, carparking and neighbourhood character.

3. The proposal is not consistent with the strategic objectives of the Moreland Planning Scheme, included in the Moreland City Plan, Council's Municipal Strategic Statement, particularly in relation to deciding on increased density (Diagram 1 at Clause 21.06-1, Housing).

4. The development would undermine the future development of the area.

5. There has been little attempt to satisfactorily address the issues of ecologically sustainable development or energy efficiency in the proposal.

5. The application for review was filed with the Tribunal on 10 January 2002. The grounds of the application are:

1. The proposal achieves a satisfactory level of compliance with the Good Design Guide.

2. The proposal meets the overall objectives of the Good Design Guide in relation to density, car parking and neighbourhood character.

3. The proposal is consistent with the strategic objectives of the Moreland Planning Scheme.

4. The development will not undermine the future development of the area.

5. The development satisfactorily addresses the issues of ecologically sustainable development and energy efficiency.

6. The proposal is not an overdevelopment of the site.

6. At the hearing Ms Sharp and Mr Patterson tabled and spoke to detailed written submissions whilst the other parties made oral submissions. I was also presented with other material and documents relevant to the consideration of the proposal including photographs, maps and extracts from the planning scheme and other policy documents.

7. Mr Patterson called evidence from Ms Deborah Donald, a traffic engineer with Andrew O'Brien and Associates.

8. During the course of the hearing, a number of local residents who had not filed a statement of grounds attended the hearing and requested to be heard. Whilst I agreed to hear from them given the proximity of their respective properties to the subject land, they did not request to be joined as parties.

9. In between the two hearing days I inspected the subject land and locality.

10. After the hearing, the parties were recalled so that I could advise them of my decision in this matter. They were also given a detailed statement of oral reasons, generally in the form set out in these written reasons.

11. The subject land is located at the east end of Piera Street, Brunswick, to the east of Lygon Street. The land has a regular rectangular shape with a frontage width of 10.32 metres, a depth of 30.5 metres and an overall area of about 315 square metres. The land is currently occupied by a single storey brick factory building. The land is relatively flat.

12. The land is bounded by two right-of-ways, one to the east running along its side boundary and the other to the north along its rear boundary. The right-of-way to the east has a width of about 4 metres whilst the right-of-way to the north is about 3 metres wide.

13. Contextually the land is located in an area which has a mixed land use character comprising both residential and industrial uses.

14. The land has a direct abuttal with a residential property which is located to the west. This property is occupied by a single storey dwelling which has, for the most part, development built to the common boundary with the subject land. Other residential properties are found further along both sides of Piera Street, although there are also a number of industrial commercial buildings interspersed amongst them.

15. An industrial building exists to the east on the opposite side of the right-of-way. This building has its sideage and rear south-west corner at the end of Piera Street with its main frontage to nearby Linden Street. Residential uses also exist in Linden Street.

16. The land is well located in close proximity to a range of services and facilities including shops and public transport along Lygon Street. All infrastructure services are available.

17. The proposal involves the redevelopment of the existing building to create five 3 storey dwellings.

18. Dwellings 1 and 2 are to be oriented towards the site's Piera Street frontage, Dwellings 3 and 4 fronting onto the right-of-way to the east with Dwelling 5 fronting towards the northern right-of-way which connects to Linden Street.

19. The ground level of the building will be largely dedicated towards the dwelling entry areas and car parking, although Dwellings 2 and 5 will each be provided with a studio room at this level. At the upper levels, Dwellings 1 to 4 will provide for two bedrooms and an open plan living area, whilst Dwelling 5 will provide for a single bedroom with a retreat area.

20. The dwellings range in size from about 129.5 square metres to 158 square metres. A total of eight car parking spaces are to be provided on the land with such spaces to be accessed from Piera Street and the abutting right-of-ways.

21. Open space is to be provided in the form of upper level balconies.

22. The design style is clearly contemporary with the main external materials comprising a combination of face brick, render and timber.

23. The details of the Planning Scheme provisions which apply to this proposal were well set out in the submissions presented on behalf of Ms Sharp (pages 5-13) for the Responsible Authority and Mr Patterson (pages 4-8) for the applicant. Essentially there was no dispute with respect to the relevant statutory controls and policies which apply.

* The land is located within the Mixed Use Zone the provisions for which are found at Clause 32.04 of the planning scheme.

* "Dwelling" is an as-of-right use within the Mixed Use Zone for which no permit is required.

* Pursuant to Clause 32.04-5, a permit is required to construct two or more dwellings on a lot in a Mixed Use Zone.

* The application is required to be considered under the provisions of the Good Design Guide given it was lodged with the Responsible Authority before 24 August 2001 (refer Clause 52.04).

* The relevant policies and other matters to be taken into account are:

* The land is also covered by the Environmental Audit Overlay, the provisions for which are at clause 45.03. However, the provisions of this overlay are of limited relevance to the consideration of the merits of the proposal given no concerns were raised with respect to the environmental conditions of the land and the provisions of clause 45.03-1 set out a mandatory requirement that must be met should a permit issue.

25. After having considered the submissions and evidence presented by the parties, the relevant provisions and policies in the planning scheme and the details of the proposal, it seems to me that the key issues to be considered are:

* Is the site one which has attributes which make it a suitable candidate for some form of medium density housing?

* Is the proposal respectful of neighbourhood character?

* Will the proposal bring about any unreasonable impacts on the amenity of the surrounding area?

Is the site one which has attributes which make it a suitable candidate for some form of medium density housing?

26. After having considered the various submissions on this issue, I have formed the view that the subject land is most definitely a suitable site for some form of well designed residential development. Although the site is relatively small at about 315 square metres, it nonetheless has several attributes which favour its redevelopment for residential purposes. These include:

* relatively wide frontage of 10 metres (having regard to its inner urban context);

* its abuttal to three access ways (namely Piera Street and the two right-of-ways);

* the availability of all infrastructure services together with no evidence that such infrastructure cannot cope with the additional demand associated with additional development;

* the existing building not being of any particular significance, in terms of its appearance, age or design, and

* the land's proximity to a range of facilities and services including shops and public transport all of which are readily accessible.

27. All of these factors favour the redevelopment of the subject land for residential purposes.

28. Whilst the land has many attributes which favour its redevelopment, it is also relevant to understand the nature of any constraints in assessing the merits of the design response. The first of these is that this is not a big site, having an area of just over 300 square metres. Second, the site has a close interface with single storey dwellings, particularly to the west, north and south. Third, whilst the site has an abuttal with two laneways, they are not overly wide. Furthermore, the land is located in an area where parking in Piera Street and other streets nearby is in relatively high demand which, at times, presents local residents with some difficulties.

29. The site is subject to some constraints, but they are not so severe that they would preclude this site from being redeveloped. Rather, they are factors which must be carefully considered in the preparation of an appropriate design response.

30. By and large, I have formed the view that there is scope for the redevelopment of this site for housing.

31. In addition, it seems to me that the redevelopment of this site for residential purposes is also supported by the planning scheme's policies and the zoning of the land. In this regard it seems to me that the provisions of clauses 14 and 16 of the State Planning Policy Framework encourage the development of the land for housing. Clause 14 calls for the consolidation of the existing urban area whilst clause 16.2 calls for the provision of development which improves housing choice and makes better use of infrastructure.

32. I am also of the view that the development of this site for housing is strongly supported by the zoning of the land and the policies set out the in the Local Planning Policy Framework. In terms of the zoning, the purpose of the Mixed Use zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects neighbourhood character.

33. It is clear that the purpose of the zone clearly contemplates the use of the land for residential purposes. This is also reflected in the statutory controls applicable in the zone given that "Dwelling" is an "as-of-right use" for which no permit is required and as such it is consistent with the primary purpose of the zoning.

34. Further guidance can also be obtained from Moreland's local policies. In particular clause 21.06-1 the MSS strategies identify areas where there is good public transport access, such as the area within which the subject land lies, as the location where increased residential densities are encouraged. Indeed it was clear to me from Ms Sharp's submission that the Responsible Authority essentially has no difficulty with the redevelopment of this site for medium density housing given the thrust of the MSS policies and strategies which seek to facilitate development which adds to housing diversity and affordability as well as assists in slowing the decline of Moreland's population.

35. Whilst I appreciate the concerns raised by Mr Belcher and Mr Crocker about the impact, in terms of amenity conflicts, which the establishment of residential uses would have on the more traditional industrial uses found in the area, the simple fact of the matter is that the zoning of the land and the planning scheme's policies support and encourage the use of land for this purpose.

36. Taken overall, I generally agree with the analysis of planning policy set out in the submissions presented by Ms Sharp and Mr Patterson, in so far as it is clear that the zoning of the land and the planning scheme's policies encourage the redevelopment of this site for housing at medium to higher density.

Is the proposal respectful of neighbourhood character?

37. Whilst I have come to the view that the subject land has attributes which would enable it to be redeveloped for medium density housing and that the planning scheme's policies and purpose of the zone support such development, it is also relevant to acknowledge that these factors do not mean that any form of development will be acceptable. Rather it is clear from the policies at clause 16.2, the purpose of the zone and the objectives of the Good Design Guide that development must be respectful of neighbourhood character whilst the policy at clause 19.03 calls for the development which achieves high quality urban design.

38. In considering the merits of the proposal, it would be fair to say that the fundamental concern raised by Ms Sharp on behalf of the Responsible Authority relates to the height and bulk of the proposed building not being respectful of the neighbourhood context or character. It was clear that the Responsible Authority essentially has no difficulty with the contemporary architectural style which was being proposed, and I agree that this is a favourable aspect of the design response.

39. In considering the neighbourhood character issue, Ms Sharp referred to the Moreland Character Study. I note that the land is located within Area 88 and the description of the area, as set out the Study, acknowledges that it is characterised by a mix of residential and industrial land uses which have resulted in a fair degree of variety with respect to lot sizes. The policy notes which form part of the study provide some direction for the future development in this area and in this regard I note that these state that:

"Development in the future should aim to complement the existing residential streetscapes. Industrial areas should remain while they are viable but they also offer excellent opportunities for new residential or residential and mixed use conversion over time. Innovative medium and high density developments might be encouraged on larger sites."

40. I think that there are a number of points needs to be made in relation to the above. The first is that "development should complement existing residential streetscapes". The second is that industry should remain whilst viable after which residential conversion or redevelopment is encouraged. Third, innovative medium and high density development is encouraged on larger sites.

41. In this regard it seems to me that the study acknowledges that the area will be subject to some change arising from the loss of industries which may no longer be viable. However, it is also clear that the study is encouraging development which will complement existing residential streetscapes and accordingly, the scale of the residential forms within them.

42. Whilst Mr Patterson was correct in saying that there is some diversity in the streetscape given the existence of industrial buildings, this does not mean that new development proposals must take their lead from these buildings. It is appropriate that they be acknowledged in the design response, however, from a streetscape viewpoint, I would have thought that more weight should be given to acknowledging the scale of the residential forms which are predominant.

43. It is on this basis that I find myself in agreement with the submissions made by Ms Sharp on behalf of the Responsible Authority. In my view, the proposed development will essentially present too much bulk to Piera Street and to some extent, this is demonstrative of overdevelopment.

44. I have no difficulty with a double storey component fronting Piera Street as this would present a more gradual and "respectful" increase in height when consideration is given to the scale of the houses in the street. I agree with the Responsible Authority that what is being proposed here, namely the presentation of a three storey building to the street, is excessive and not respectful of neighbourhood character in the terms required by planning policy, the provisions of Element 3 of the Guide and the policy notes in the character study.

45. This is not to say that a three storey building could not be developed on this site. Rather, I agree with Ms Sharp that the appropriate design response would have been to provide a greater setback of the upper level from Piera Street. I would have thought that the second floor setback of say 5 to 6 metres would have been more appropriate allowing the ground and first floor levels to reinforce the existing scale of development at streetscape level with the higher component recessed further away. I also agree that a similar response, would also be appropriate to Linden Street.

46. I do not have any difficulty with a third level being confined to the middle section of this particular site, but at the two street interfaces, the residential scale of development at around two storeys should be maintained. In my view the proposed building, presenting a three storey scale to the street frontage, will be overly dominant along the streetscape.

47. There are two aspects to this issue. The first is whether the number of spaces provided is satisfactory. The second is whether the car park layout is workable.

48. On the first aspect, I am satisfied that, as a matter of principle, the provision of 8 car parking spaces on the land would be sufficient to meet the Good Design Guide's car parking requirements when consideration is given to the size of the dwellings and the land's proximity to good public transport.

49. Whilst it was asserted by a number of the objectors that the residents of the proposed dwellings would seek to use kerbside parking rather than on-site car parking, I do not readily accept that this would be so. In fact, I think the opposite would happen. I say this because it seems to me that in circumstances where kerbside parking is in high demand and is difficult to find, as was made abundantly clear to me by the residents that live in the area, I would have thought that the future residents of any dwellings on the land would avail themselves of the opportunity to utilise their garages which would always be accessible to them. Their cars would also be parked in a relatively safe and secure environment.

50. However, whilst I do not share the residents concerns about future occupiers using on site car parking, I think that the issue raised by Ms Sharp, about the workability of the spaces, is a relevant concern. On this point, I share the Responsible Authority's concerns about the suitability of the access to car parking spaces off the laneways. Quite simply the accessway widths do not meet the requirements of the Guide. I acknowledge Ms Donald's evidence that the turning movements will be possible, however in my view, they will be overly tight.

51. The objectives of the Good Design Guide seek to ensure that streets and driveways provide for safe, manageable and convenient vehicle access to dwellings and to avoid parking difficulties. This is not a case where access is being provided to an existing dwelling in an older inner area, a circumstance where perhaps one might accept tighter than usual manoeuvring arrangements. This proposal is for five new dwellings which, from a practical point of view, represents a total redevelopment. In my view, the access arrangements are too tight and more space is required to make the turning movements into the garages more comfortable.

52. It seems to me that the Responsible Authority's view that this proposal represents an overdevelopment given the visual bulk presented to the street and the difficulties with the car parking of the site is correct. It must be remembered that although this is a relatively small site, five dwellings are proposed and they are not relatively small with three of them having floor areas exceeding about 150 square metres (including balconies and garages).

53. The proposed development is clearly intense and whilst planning policy calls for more intense development in strategic locations such as this, I consider that the level of development is too much, evidenced by my findings with respect to streetscape impact and car parking. Whilst the level of development proposed in this case could legitimately claim to be facilitating the implementation of the planning scheme's consolidation policies, the simple fact of the matter is that a lesser development could also be said to be implementing policy. I find that this proposal is an overdevelopment and that based on the above analysis, this is sufficient for the Responsible Authority's decision to refuse the grant of a permit to be affirmed.

Will the proposal bring about any unreasonable impacts on the amenity of the surrounding area?

54. Whilst I have formed the view that a permit should not be issued in this case, the reality is that this site remains a development of opportunity and as such I think it would be of assistance to set out my views with respect to a number of the other issues which were raised given that it likely that a further application will be pursued.

55. First, subject to the right amount of car parking being provided and the layout being one which is convenient and in accordance with the requirements of Rescode, I would not reject a proposal on this site for car parking reasons.

56. Second, I do not find that the traffic that would be generated by even five dwellings could be accommodated by the surrounding street and right-of-way system. The reality is that this level of residential development would generate a modest level of traffic and I agree with Ms Donald's evidence in this regard.

57. Third, I do not share the concerns raised by the objectors about the safety of pedestrians using the laneways. The reality is that the laneways are a slow speed environment. Given the low traffic levels that this development would generate, I do not think that the traffic in the laneways will pose a significant problem for pedestrians.

58. Fourth, concerns were also raised by the residents about overshadowing and loss of daylight to windows, however, these assertions were not supported by the Responsible Authority or the evidence (shadow diagrams and plans).

59. Fifth, concerns raised about overlooking and potential impact on privacy could quite clearly be addressed by modifications to the design.

60. Sixth, it is not uncommon for resident/objectors to raise concerns about noise, however, there was nothing presented to me that would lead me to the view that the design of the proposed dwellings or the likely level of activity associated with them would result in an unreasonable level of noise.

61. Finally, I note Mr Belcher's concerns about the potential for residents of any new dwellings on the subject land to complain about smell from fumes emanating from his factory, located to the east. On this point, I think that the simple fact of the matter is that business in locations such as this are subject to EPA requirements and these must be complied with, irrespective of whether the land is redeveloped or not.

62. Whilst I consider that the land is a suitable candidate site for residential redevelopment and that such redevelopment would accord with the general thrust of the planning scheme's housing and urban consolidation policies, I agree with the Responsible Authority that the level of development proposed in this case is excessive, that the proposal fails to have proper regard to neighbourhood character considerations and the car parking layout is not satisfactory.

63. A less intense level of development is required.

Environment Act 1987

EQ Property v Moreland CC and Ors [2002] VCAT 1245

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

EQ Property v Moreland CC and Ors [2002] VCAT 1245 (9 October 2002)

Parties

Legislation Cited (1)