Victorian Civil and Administrative Tribunal|2008-06-27

Gadzhis v Stonnington CC [2008] VCAT 1212 (27 June 2008)

Residential 1 zone, Motel, Amended Permit Application, Additional Storey, Use of Gymnasium and Multi purpose room, Failure to Determine Application, Stonnington City Council.

Gadzhis v Stonnington CC [2008] VCAT 1212

951 - 955 Dandenong Road, Malvern East: Sheets 6 - 10 inclusive dated October 2007

The decision of the Responsible Authority is set aside.[1]
An amended permit (0557/04) is directed to be issued for the land at 951 - 955 Dandenong Road, Malvern East. The permit is amended as follows:
Conditions in the permit are amended as follows:
1. Condition 1 is amended to read:

"1. Before the commencement of the use and development, three (3) copies of plans drawn to scale and fully dimensioned, 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 generally in accordance with the plans advertised plans noted as Amendment No. 4 and received by Council on 9 May, 2007 and substituted plans as circulated to the Tribunal (drawing no. 6,7,9 and 10 revision 5) dated October 2007 but modified to show:

Reduction in the area of the Gymnasium / multi purpose room in the roof terrace to have a maximum dimension of 12 metres x 18 metres with the area to be removed taken from the north east end of this floor level.
Deletion of the outdoor terrace area to the Roof Terrace level on the south-east and north-east boundary.

Reduction of the roof terrace area on the north-west boundary to a depth of 18 metres from the south-west entry wall of the gymnasium / multi purpose room. The area deleted will be roof only but may include emergency access only to the rear stairwell at the north east of the building.

Notation on plan that windows to the gymnasium will be non openable on the north-east, north west and south west elevations.
Provision of obscure glass screening to the roof terrace along the north-west and north-east elevations to a minimum height of 1700mm above floor level.
The provision of screening measures to a minimum of 1700mm above floor level to the south-east and north-west elevation balconies.
The provision of obscure glass to a minimum of 1700mm above floor level for the first floor east elevation windows of Units 30 & 31, west elevation windows of Units 28, 29 & 54 and north elevation windows of Units 29 & 30.
The provision of a maximum of 25% opening in the metal screens in the north, east and west elevations.
Provision of a 2 metre high acoustic fence along the north-east, rear boundary.
Location of the basement air exhaust shaft in the south west elevation and basement air intake shaft in the north east elevation.
The basement car park to be amended to comply with the relevant standards in AS 2890.1 including:
1. Dimensions and grades of all disabled car spaces.
2. Ramp grades and width and headroom at the entry point and throughout the car park with the submission of a longitudinal section of the proposed ramps from the centre line of the road and throughout the parking area.
3. Sight distance at the access driveway exits.

The Landscape plan prepared by Chaka Landscape Design dated May 2007, forming part of the application plans for permit amendment, amended to include the following:
1. Additional screen planting along the north boundary including at least one additional Blueberry Ash.
2. Provision of an additional two Blueberry Ashes along the eastern boundary.
3. Details of planter box size, dimension and fill to demonstrate capacity to sustain tree planting of species identified in the landscape plan.
4. Details of landscaping to the roof terrace area."

"3. The café, function centre and gymnasium / multi purpose room must at all times operate as ancillary to the principal Motel use."

New conditions are included as follows:
1. No pedestrian or vehicle access is permitted from the laneway either during construction or operation without express written permission of the Responsible Authority.
2. The use of the gymnasium / multipurpose room and roof terrace area may operate only between the hours of 6.00am and 10.00pm Monday to Sunday inclusive. This must include restriction of lift access to staff only to this upper level outside of these operating hours.
3. No external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose.
4. All external plant and equipment must be acoustically treated or placed in sound proof housing to reduce noise to a level satisfactory to the responsible authority.
5. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.

Amendment to an existing permit for a Motel to provide reconfigured floor layout to all levels, including provision for outdoor courtyard at ground level. The number of bedrooms and car spaces is to remain the same, but reconfigured to enable a more logical layout to the building and an updated façade. Conference and dining facilities at ground level are re-arranged and now include a ground floor courtyard access from the conference room. The conference room is increased marginally in size. The amendment also includes provision of an additional level referred to as "roof terrace". This level includes a gymnasium / multi purpose room with kitchenette, toilet facilities and outdoor terrace area that encircles the room. Measured from plan this room has an area of 12m x 21.8m.

Site area 1766 sqm ( 33.53m x 52.29m), with frontage to Dandenong Road. The site is currently vacant with preliminary earthworks having commenced for the existing approved Motel on site. To the south east are 7 double storey apartments and to the north west is a single dwelling which has a current planning permit application for student accommodation. Further north west is a Masonic Hall with a height of 11 metres.

A laneway abuts the rear of the site with single storey residential dwellings to the rear facing Warley Road and Moama Road.

South west of Dandenong Road is parkland and the edge of the Caulfield Campus of Monash University.

The site has a current existing permit for a Motel comprising 65 bedrooms, 60 basement car spaces and ancillary conference and café dining facilities. The permit was approved on 10 January, 2005. This was subsequently amended to realign the basement car park on 26 February 2007. An extension of time to the permit was also granted on 10 January 2008 for works to finish within 2 years from the extension of time being granted, (with earthworks already commenced).

Mr Atkins, in accordance with the VCAT Practice Note, circulated plans for substitution prior to the hearing. No party raised objection to substituting these plans by the Tribunal. I granted leave to substitute the application plans with those circulated. These plans correlated with amended plans the applicant had submitted to Council, but were not formally considered by Council within the 60 day consideration period.
Ms Tait submitted Council had considered the matter at a meeting of Council 8 April 2008 and determined that had it made a decision on the permit application it would have supported the proposal subject to conditions. This included conditions to increase landscaping to the rear of the site, clarify the air ventilation to the basement car park and provide alteration to screening of the roof terrace to protect amenity to residents in Warley Road to the rear.

Ms Fosang submitted on going concern at the prospect of a Motel being located to the rear of her property at 41 Warley Road. This related to both the bulk of the building and the amenity impacts associated with the use. Ms Fosang acknowledged that the scope of consideration before the Tribunal was not to re-examine the merits of a motel per say, but the amendment to plans proposed. With this she expressed particular concern at the increase in height and the use of the roof terrace for a multi purpose room which she considered was likely to be used for functions, thereby causing amenity impacts from noise and overlooking from people using the multi purpose room /gymnasium and adjoining outdoor roof terrace. Ms Fosang was also concerned with noise emanating from the ground floor courtyard which is also associated with the ground floor conference room.
Ms McNeilly likewise submitted concern in relation to the additional level to the motel both with regard to the impact on building bulk and the amenity impacts associated with the potential use of this upper level.
There was general acceptance to the amended bedroom layout, façade detail and basement function, subject to conditions proposed by Council and were agreed to by Mr Atkins. This included:

Provision for screening of north-eastern bedroom windows; 2. Provision of an acoustic fence to the north-eastern boundary;

Clarification that the rear laneway was not to be used for access either during construction or operation; and 2. correction of details relating to ventilation of the basement car park to identify the northern air vent as intake and the southern air vent as exhaust.
I do concur with Council's assessment of the proposal that generally speaking, the new building layout is far more logical and useable, including habitable windows to all bedrooms (which did not occur with the approved layout). Generally speaking I find the amended plans to be vast improvement on the approved plans and find, in principle, the revised concept acceptable.
In my consideration of this review, I have therefore sought to address the specific issues of contention being the visual bulk and amenity impacts associated with both the ground floor courtyard and new roof terrace level. I will direct amended conditions to address other minor issues of concern detailed in Paragraph 5.

Do the amended plans constitute Visual Bulk to adjoining properties?

The plans circulated by the applicant included a superimposition of the template for standard height and setbacks accepted under the provisions of Clause 55 of the planning scheme and a dotted line detailing the existing approved building envelope. Generally speaking the new building footprint is more recessed from all boundaries than that already approved and complies with the standard provisions of ResCode[3].
In particular the roof terrace proposed sits within the standard provision for ResCode, although, the provision of a 4th storey no longer requires the building to comply with this code. Never the less the building does comply and fits comfortably within what is normally deemed acceptable as a reasonable building form for a residential building in a residential zone.
Added to this is the context of the site, being on Dandenong Road where higher built form in the nearby area is dominant and can be tolerated due to the width of the road reserve and the streetscape this road reserve creates. The proposed building height is 12.3m, slightly higher than the Masonic Hall (11m) two lots to the north west. Other three storey buildings are located nearby in Warley Road, near the south east intersection with Dandenong Road. Higher built form also exists at the Monash University Caulfield Campus that sits diagonally opposite the site to the north-west.
The proposed design does not meet the standard provision of ResCode in relation to height (which is 9 metres). As a four storey building, ResCode does not technically apply, however I have given it consideration in addressing the impact of height. The objective of 55.03 - 2 is:

To ensure that the height of buildings respects the existing or preferred neighbourhood character.

The decision guidelines go on to state the matters to be considered when assessing height. These are:

Any relevant neighbourhood character objective, policy or statement set out in this scheme.

The effect of the slope of the site on the height of the building.

The relationship between the proposed building height and the height of existing adjacent buildings.

The visual impact of the building when viewed from the street and from adjoining properties.

Council submitted that the site is located on a main road where a higher scale development is encouraged. Change in building density and height must therefore be expected. The design response addresses the surrounding context. It graduates in height to the rear of the site, so that height meets the standard provisions of ResCode at the rear where it interfaces with a more traditional residential area facing Warley Street.
I find the visual impact of the building when viewed from the street and adjoining properties to be consistent with the emerging character of the area and one that can be easily tolerated in the streetscape of Dandenong Road that has a very wide reservation that dominates the street form rather than individual buildings adjoining the street. I also find the height as it appears from the rear of the site to be acceptable in context of the existing developments along Dandenong Road and the fact that the proposed development proposes to step down the site and accord with ResCode Standards at this more sensitive rear interface.
This combines with the fact that the site sits with a south orientation to the street, means main shadows are not cast on adjoining properties (except partly to the residential property to the south east). I therefore find an additional storey of building on the site to be acceptable, provided it is suitably recessed and can address amenity impacts resulting from its use.

Will the use of the upper level cause unreasonable amenity impacts to adjoining properties?

Both Ms Fosang and Ms McNeilly submitted concern that the upper level, whilst labelled as a gymnasium / multipurpose room was, in their view, likely to be used for functions associated with the function room at ground level. With this they noted the large provision of space (approximately 240sqm scaled from plan)[4] at this upper level, the use of an outdoor terrace to encircle the room and a kitchenette at this level.
Mr Atkins submitted the upper level was genuinely for a gymnasium, although conceding it may also be used for occasional function use associated with the ground floor conference facilities, or partly for day spa / health treatments. In stating this he explained the kitchen at the roof terrace level is not a commercial size which could service large functions. He submitted that if the concern of residents was that the upper level would be used late at night he was happy for the Tribunal to impose condition relating to hours of use, suggesting that 5.30am to 10pm would be acceptable to the permit applicant.
He also offered that the building footprint at this upper level could be reduced at its north east boundary- where it interfaces with the Warley Road properties to reduce visual and noise impacts as well as reducing the outdoor terrace area so that people were confined more to the front of the building. He also accepted Council's proposed conditions that the rear of windows the upper level room be screened and the screen to the terrace be opaque, treated glass rather than timber.
Council had no comment on the use of the upper level, other than to acknowledge the existing condition on the permit that conference facilities are to operate as part of the Motel, not separately. As such Council did not raise concern with the use of the upper level. It also accepted the building form of the upper level.
The configuration and size of the proposed new level, including provision of a kitchen and a description of "gymnasium / multi purpose room" does both, by definition and size, enable its use for a multitude of purposes[5]. This is not to suggest that the new level cannot form a legitimate part of the motel use, simply that its potential amenity impacts need to be appropriately addressed.
The use of the outdoor terrace at this level could be used by guests for socialising, particularly with smoking laws now in place. Likewise the size of the room could enable it to be used for functions which could run late at night causing noise impacts to adjoining residences.
As discussed at the hearing and offered by Mr Atkins there is scope to reduce the potential amenity impacts of this upper level by conditioning that the use be restricted to hours that do not impede on residential amenity and reduce the area of outdoor use.
I will therefore condition a number of changes to this upper level including deletion of much of the outdoor terrace, provision that windows facing the adjoining residential properties do not open so as to provide acoustic protection from use of the room as a gymnasium or part of conference facilities and increasing the north east setback to minimise potential for overlooking, noise and general loss of privacy to the adjoining properties.
I will also amend Condition 3 to require that gymnasium / multi purpose room must at all times operate as ancillary to the principal Motel use. Condition 3 currently requires along the café and function centre to operate as ancillary to the principal Motel use.
Finally I will impose hours of operation to this upper level. I will not impose this at the ground level, as the current permit does not restrict hours of operation of this use. This will be subject to normal EPA requirements for noise control which is already a condition of permit. The restriction of hours will clarify that the upper level is intended to be ancillary to the use of the Motel and not a new, separate use of the building.
I will impose hours of operation to be 6.00am to 10pm daily. Whilst Mr Atkins suggested 5.30am enabled business guests to exercise early, I find this an unnecessary imposition on adjoining properties for what is likely to be very few patrons that would use the roof terrace at this time. The layout of the building with lift access enables this whole roof terrace to be restricted from guests outside these operating hours which I will condition.

Will the ground floor courtyard cause unreasonable amenity impacts to adjoining properties?

Ms Fosang submitted the increased ground floor courtyard would likewise be used by patrons for entertainment causing noise and visual amenity issues from patron usage including light spill at night.
Council's proposed conditions include provision for acoustic fencing to the rear of the site and a requirement for external lighting to be baffled.
The new function room layout does lend itself to being open to the courtyard, enabling this outdoor space to be used in conjunction with the function room. Again, this is most likely to include provision for patrons wanting to smoke.
Whilst I acknowledge the concerns of Ms Fosang about the potential amenity issues associated with this courtyard, I also note that it is in the interests of the Motel management to minimise noise and light spill from use of this courtyard with bedrooms of the motel also facing onto this courtyard. This includes bedrooms at ground floor level.
I find that amenity impacts of this courtyard can be managed with conditions proposed by Council and am comfortable that they will be self regulated to maintain amenity to motel patrons.
Having said this I will impose an additional condition to restrict external sound amplification equipment or loud speakers used for the purpose of announcement, broadcast, playing of music or similar purpose within this area as an additional amenity protection measure. This will work in combination with the existing condition on permit to restrict noise to EPA standards.

I direct that an amended permit be issued with modification as outlined in my reasons above.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] The existing condition 6 provides for a landscape plan to be submitted which has now been submitted with the amended plans and is to be further amended through the amended Condition 1.

[3] There is minor intrusion into the ResCode envelope at lower levels, particularly to Dandenong Road frontage however the existing approved plans already provide for similar intrusion. The intrusion is also generally to the front of the property where there is least amenity impact to adjoining properties.

[4] This is larger than the proposed function room area on the ground floor.

[5] I do note the kitchen is relatively small and not suited to catering for large-scale functions.

Gadzhis v Stonnington CC [2008] VCAT 1212

At a glance

Court

Decision date

Source

Judgment (42 paragraphs)

Gadzhis v Stonnington CC [2008] VCAT 1212 (27 June 2008)

Parties