In permit application no. 5.2006.34.1, a permit must not be granted.

Mr S Stewart, solicitor of Rigby Cooke lawyers. Evidence was called from:

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Mr M Negri, town planner.

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Mr T Biles, town planner/urban designer.

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Mr J Patrick, landscape architect.

A statement of evidence by Mr T Hardingham, traffic engineer, was circulated but he was not called to present his evidence and no party sought to cross-examine him.

Mr E Stokans, solicitor of Russell Kennedy. Evidence was called from Mr C Czarny, urban designer.

Mr A Swindon of David Goodwin & Associates for Ms D White.

Ms P Rogerson, Mrs Faulkner and Mr H Leggett all in person.[1]

1 First Maroona Nominees propose a four storey apartment building across two lots in Well Street, Brighton. As the Bayside City Council failed to determine the permit application within the prescribed time, the Tribunal must decide whether a permit should be granted. In reaching our decision, the determinative issue is whether the proposal represents a suitable response to the design and character objectives that apply. Having considered all submissions and evidence, assisted by our accompanied inspection of the site and adjacent properties on the morning of the second day of the Hearing, we find that the proposal is not acceptable in these aspects. For these reasons, we will direct that no permit issue. As the permit application fails at the hurdle of the design and character response, we only summarise our findings on some of the other key issues raised in submissions. In setting out our reasons we do not recite all of the material presented as all documentation is held on the Tribunal's file.

2 The review site is located on the north side of Well Street.[2] It is 40.1 metres wide and 2,025 square metres in area. It abuts properties that, in turn, front Church Street and a right of way that extends along part of the northern boundary. The review site comprises two lots, one developed with a dwelling and the other that is vacant. Two large red gums are to the site's south-east corner. A large peppercorn abuts the rear boundary.

3 Land to the west is developed with three dwellings, the front unit being double storey and the rear units being single storey. They have a considerable extent of wall along the common boundary with the review site interspersed with several lightcourts. Land to the east of the review site is occupied by a single storey Edwardian dwelling with a pool and open space at the rear. A single storey garage on the common boundary with the review site is accessed from the rear right of way. North of the review site are commercial properties fronting Church Street with a rear gravel area mainly used for parking and possibly some loading. These shops are part of the Church Street major activity centre.

4 The surrounding area comprises a mix of single and double storey dwellings in a range of styles and dating from various architectural periods. Well Street is a relatively busy collector road with bus services.

5 Approval is sought to construct 17 dwellings within a four storey apartment building. An additional basement provides for 38 car spaces, accessed from the western corner of the site. As described in Mr Negri's evidence, the building's boundary setbacks are (excluding balconies) approximately:

6 The building has a maximum wall height of 10.34 metres and an overall height of 13.2 metres. The design adopts horizontal forms with balcony planters, a central glazed entry, flat roof and render finishes. The two red gums, peppercorn and two street trees would be retained and/or protected.

7 A permit is required for the proposal under the Residential 1 Zone and a Design and Development Overlay (Schedule 6 Interim Built Form Standards for Major Activity Centres)[3] of the Bayside Planning Scheme.[4]

Does the Proposal Satisfy Design and Character Objectives?

8 At the core of the debate before us is the height, scale and massing of the proposed apartment building. Mr Stewart submitted the review site offers an important opportunity to advance housing, urban consolidation and activity centre goals being a large, well located block in terms of access to services and public transport. Additionally the site lies within a major activity centre and abutting properties are developed for commercial purposes. He submitted all of the abutting properties are within an area that is expected to change based on the Scheme's provisions.

9 Mr Stewart submitted the opportunity must be optimised and it is reasonable to do so because of the limited off-site impacts and negative outcomes arising from this design albeit that the discretionary maximum heights in DDO6 are exceeded.

10 Other parties challenge the Applicant's submissions by contending the proposal is not a suitable response to DDO6 as well as Clause 22.07.

11 We think that there can be no debate that the review site is a suitable candidate for a multi-unit development of reasonable intensity because:

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it is within a "residential opportunity area" pursuant to Clause 21.05;

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it has attributes correctly identified by Mr Stewart including its considerable size and excellent location;

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it is part of an activity centre as recognised by DDO6, regardless of whether the land is described as directly within or on the periphery of the activity centre; and

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aside from the peppercorn tree, red gums and street trees that all parties advocate should be retained, the site has few physical or topographic constraints to limit its development.

12 We will not recite the state and local policies that relate to housing, urban consolidation, design and character outcomes. We think that these are generally well understood by the parties. The decision we must make involves balancing these and other policies that are relevant to the proposal.

13 It is, however, beneficial to elaborate on DDO6. It is an interim control[5] introduced by the Minister for Planning at the Council's request. We will not make observations relating to the process leading to the introduction of the Overlay or the Council's "real intentions" as alleged and emphasised by Mr Stewart. Our role is to simply apply the Scheme, as a whole, as we find it today. Similarly, several submissions drew correlations with, or sought to distinguish the current proceeding from, the Tribunal's findings in relation to a proposal on a large site in Warleigh Grove.[6] We have read that decision and viewed that site. We have read and noted the other Tribunal decisions to which we were referred. It remains that the specific circumstances of the review site and proposal before us are most crucial to a decision involving assessment against all of the applicable Scheme provisions.

14 DDO6 has three design objectives (cited as relevant to this proceeding):

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To ensure that the height of new development is compatible with the character of the major activity centres and adjacent sites of ... Church Street, Brighton,....

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To maintain the prevailing streetscape rhythm, building scale and height of the centres.

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To maintain a strong landscape character with residential buildings set within vegetated surrounds.

15 A permit is not needed under DDO6 for a development that meets specified wall and overall building heights. These are exceeded by this proposal.

16 DDO6 identifies precincts for which particular requirements are set out. The front portion of the review site (to a depth that was not precisely defined by the parties but generally shown on a plan tendered by Mr Stewart) is in Church Street Built Form Precinct "C". The rear is in area "C1". In these areas, the requirements of DDO6 are[7]:

Side & rear setbacks to comply with Clause 55 Standard B17[9]

The third storey must be located in the area marked as C1

17 The proposal exceeds the "maximum building height" and "maximum number of storeys" and does not achieve the "minimum setbacks" in part. In addition, based on the plan referred to in paragraph 16 above, the third level is not solely contained within area C1 (neither is the fourth level).

18 These DDO6 requirements are not mandatory. Discretion may be exercised to vary from the height, storey and setback requirements. Decision guidelines in Schedule 6 and Clause 43.02 assist an assessment of a permit application. We return to this shortly.

19 Much was said in the Hearing about the Church Street Draft Structure Plan that, we understand, provided the basis for DDO6. The contents of the Draft Structure Plan are not identical to the requirements of DDO6. That fact highlights why influential weight should not be given to the Draft Structure Plan. The document may reflect the Council's thinking at the time of publication but the version tendered to us was a draft released in mid 2005 for public consultation purposes. It is likely that it would be revised following public consultation and there is not yet a completed report before the Council for adoption.

20 The outcome of this strategic planning or structure planning process is too uncertain to place weight upon precise requirements in a draft, consultation, document that is over a year old.

21 Related to this is whether the proposal should be rejected because the strategic/structure planning process is incomplete. We do not accept this submission put by some Respondent Objectors. DDO6 provides a framework for decision-making while the strategic planning process is advanced by the Council. It is also necessary on this point to record our understanding from reading the explanatory statement to Amendment C51 that the Overlay provisions are said to be consistent with the directions of Melbourne 2030, a matter Mr Stewart questioned. Time will tell whether the current DDO6 requirements remain or another set of requirements is introduced, whether or not of a more liberal nature. But these are matters for the planning authority/ies.

22 Accepting that the maximum heights and storeys and minimum setbacks are not achieved, it is necessary to ask whether there are factors that warrant a departure from the DDO6 requirements but enable the outcomes to be achieved. Mr Stokans submitted there should be "exceptional circumstances" to allow a development that is not consistent with the specified height, storey and setback requirements and no such circumstances are evident here. Mr Stewart submitted that there is no such test in the Scheme and the site is a rare opportunity (given its size and position) that should be maximised. Further, as we have noted, he questioned the extent to which DDO6 advances Melbourne 2030 objectives.

23 We do not find the test "exceptional" or "extraordinary" circumstances specified in the Scheme although we note that these phrases were discussed in the Warleigh Grove decision. While Tribunal decisions refer to the application of local policy and circumstances where departures may be justified but still achieve the overall outcomes sought by the Scheme, the provision before us is an Overlay where specific design outcomes are sought, even for an interim control.

24 The grounds relied upon by Mr Stewart on this point principally are that the proposal (with side setbacks and a recessive form of the fourth level) would produce a better outcome compared with the possibilities allowed by DDO6 and the rare opportunity presented by the land.

25 On these matters we find:

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The review site is in a transitional location between the spine of the activity centre along Church Street and residential area on the opposite side of Well Street. The principles pursued by DDO6 are reflected in the proposal insofar as it seeks to step up and out to the rear of the review site, has sought to conceal parking, retains some existing trees and seeks to provide landscaping in association with the front setback area.

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Despite this, the proposal does not satisfy the design objectives of DDO6 for reasons relating to the massing and scale of the building envelope. At the height, setbacks and breadth proposed, the net outcome of this proposal pushes too far and beyond the limits associated with DDO6. The design outcome would exceed, quite significantly, the prevailing streetscape rhythm, building scale and height of the centre and adds a visible floor to the maximum storeys sought. We also do not consider that the proposal maintains or creates a strong landscape character within vegetated surrounds particularly in association with the western driveway [but that could be improved].

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As it stands, the intention of the interim DDO control is to present a double storey form to Well Street stepping up and out toward the rear (except for a rear setback at a third level) even though the heights specified in metres may physically enable a structure that is three storeys to Well Street and four to the rear; the maximum wall height, overall height and number of storeys must be read together. They are not in the alternate as sometimes occurs in other controls. Thus, we accept Mr Stewart's point that the absence of nominated side setbacks means, on its face, that a boundary to boundary development may be acceptable to the rear of the review site with a significant wall height.

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When these points are taken together, the DDO provisions would be expected to produce a very different built form than exists today contrasting with homes with private rear open space and units such as those at No. 9 Well Street. The provisions also assume and expect very significant off-site amenity impacts compared with a typical residential area where building bulk to the rear of lots is often sought to be reduced (compared with a front portion of a lot) to protect the amenity of adjacent properties with sensitive private open space. Even so, we find that the design's strong horizontal form clearly reads as three storeys with the fourth level evident in some oblique views from the public realm. These depart from the DDO's intent and the building's setbacks do not sufficiently ameliorate the additional mass.

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It is significant that the floor level/height above the DDO6 maximums are not inconsequential or without amenity impacts. While the increment incursion was said by the Applicant and witnesses to be small to the extent of being negligible, we are unable to accept that submission in relation to No. 15 Well Street. The proposal provides some side setbacks but again these are not of sufficient width/depth to ameliorate the additional mass or to planting strong screening plants.

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The consolidated review site presents a very good opportunity for increased dwelling density but we are not persuaded that either, firstly, an imperative for more housing or secondly, a contended rarity of sites that could be consolidated, tip the balance in favour of the proposal.

26 Having concluded that the proposal does not satisfy the DDO's design objectives, it is necessary to ask whether the proposal would undermine the design objectives of DDO6.

27 A one storey increment above an existing norm can be regarded as an acceptable design approach in appropriate circumstances. But in relation to the review site and its applicable planning regime, we consider approval of the four storey structure in the style proposed would establish a benchmark beyond that specifically sought by the DDO and thus potentially undermine the strategy being developed for the Church Street activity centre. That is despite the maximum height being no more than 2 metres above DDO6's maximum. As we have said, this is not a situation of a local policy but rather a DDO that has been put in place as an interim control to regulate height outcomes so as to provide some certainty. It has been introduced on the basis that the DDO still advances Melbourne 2030 directions.[10]

28 The discussion so far has focussed on DDO6 but, as we have stated, that is not the only basis of assessment. We have considered Clause 22.07 and the Guidelines for Higher Density Housing. Clause 22.07 properly acknowledges that a site's location within a residential opportunity area can alter the relevance of the design responses referred to under Clause 22.07.[11] That situation applies here and the extent to which the design responses can be achieved must be informed by the directions and requirements of DDO6 focussing on built form. Several elements of which could be said to reflect (fully or partially) outcomes sought for Precinct B2, such as a sense of garden setting and recession of a third level address the streetscape response as does the desire for vegetation flow around buildings, are, we think important to achieve when read with DDO's design outcomes. We find that the proposal has not sufficiently responded to these elements.

29 Thus, we are not persuaded the proposal is acceptable in terms of the DDO and Schedule 6, the Residential 1 Zone provisions and applicable policies. Even though the proposal may have been acceptable in relation to some other considerations, or modified to be so, we find the permit application fails these critical tests. Its acceptability in relation to some other considerations does not outweigh or over-ride our primary design concerns.

30 Given our findings on design and character considerations, we do not find it necessary to reach findings on other matters raised in submissions relating to impacts on the amenity of neighbouring properties, potential impacts on trees on adjacent sites, traffic and car parking.

31 Suffice to say that we consider the proposal:

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would not result in an acceptable outcome in terms of visual bulk to the property at No. 15 Well Street;

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would be acceptable in relation to the impact on No. 1/9 Well Street subject to a landscaped setback being provided along the west side of the driveway;

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would not result in unacceptable outcomes in terms of traffic and parking (subject to modifications of the crossover point as linked to the point above);

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may have been able to be revised to ensure that trees on adjacent sites and within the review site were protected;

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may have been assisted by a lower front fence form although we note the presence of some taller fencing elements in along Well Street;

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would not produce an unacceptable impact on those buildings identified within a Heritage Overlay (the closest of which are at the intersection of Well and Carpenter Streets);

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the internal amenity of the dwellings would be acceptable although we have some concern about the extent of screening devices required.

32 For the above reasons, we will direct that no permit be issued.

[1] We granted leave for these persons to be joined as parties to the proceeding at the commencement of the Hearing (without objection from any party).

[2] Given the off-set orientation of the review site, for ease we refer to the frontage of the review site as "south", the rear of the land as "north", the boundary with No. 9 Well Street as "west" and the boundary with No. 15 Well Street as "east".

[3] This Overlay has an expiry of 30 June 2007.

[4] The requirements of Clause 55 do not apply (other than as referenced in the Guidelines for Higher Density Housing). A permit is required under DDO6 as the wall and overall heights specified at Clause 2.0 of the Schedule are exceeded. The provisions of Clauses 11, 12, 14, 15, 16, 17.01, 18.02, 19.03 (including Design Guidelines for Higher Density Residential Development and Activity Centre Design Guidelines), 21 (Municipal Strategic Statement), 22.02 (Church Street Activity Centre - Urban Design Policy that applies to land to the north of the review site), 22.07 (Neighbourhood Character) Policy and Clause 65 (general decision guidelines) are relevant and have been taken into account by the Tribunal. Pursuant to Clause 22.07, the subject site is in Precinct B2. we were also referred to a range of associated documents or reference material including a 2000 height Control Study and a draft Church Street Activity Centre Structure Plan (version released for public comment in mid 2005).

[5] Amendment C51 came into effect on 29 June 2006. The explanatory statement for Amendment C51 states the "The amendment provides interim built form standards ... for a period of two years" although the expiry dated included in Schedule 6 is 30 June 2007.

[6] Abacus Fund Management Ltd v Bayside CC [2006] VCAT 1716 (25 August 2006).

[7] We have excluded variations provided for sloping land as no party argued that this was applicable.

[9] We have assumed, with the concurrence of the parties, this is Standard B17 as specified in Clause 55 not as varied by Schedule 1 to the Residential 1 Zone.

[10] Refer Explanatory Statement to Amendment C51.