Victorian Civil and Administrative Tribunal|2004-05-31

Gatum Holdings Pty Ltd v Banyule CC [2004] VCAT 1035 (31 May 2004)

S 77 Planning and Environment Act 1987 - Banyule Planning Scheme - Residential 1 zone - apartments - postal agency - café - 5 storey building - policy - Melbourne 2030 - building height - bulk - neighbourhood character - urban design - residential interface - car parking - traffic - loss of views - shadows - overlooking - noise - amenity.

With respect to permit application no. P251/03, the Responsible Authority's decision to refuse the grant of a permit is set aside.

A permit is granted and directed to be issued under the provisions of Section 85(1)(b) of the Planning and Environment A ct 1987 for the land at 73,75 and

77 Devonshire Road and 9 Lambourn Road, Watsonia that allows:

The development of a five storey building, in accordance with the endorsed plans, to be used for a post office (with existing use rights), residential apartments, a medical centre and a cafe, a reduction in car parking and waiving requirement for a loading bay in accordance with the endorsed plans.

1 Before the use and development permitted by this permit starts, 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 copies must be provided. The plans must be generally in accordance plans drawn by Bruce Henderson Architects nos. tp00 - tp12 (inclusive) dated 15.01.04 but modified to show:

(i) Alterations to Levels 1 and 2 to increase the setback of the northern edge of the building from the vehicle crossover to the northwest corner of the building from 1.6 metres increasing to 3 metres at a point 5 metres from the northwest corner, generally in accordance with the drawing entitled "Level One Plan Alternative".

(ii) Modifications to the internal layout of apartments 1.04, 1.05, 1.06, 2.04, 2.05 and 2.06, including the deletion of the second bedroom or studies of those apartments, as a consequence of the changes to the building envelope referred to in paragraph (i) above.

(iii) Changes to the northern (Lambourn Road) elevation of the building from the midpoint of the vehicle crossover at the ground, first and second floor levels to delete the planter box, extend the fins and pergola to ground level, and show the balustrade at first floor level as glazed, generally in accordance with the plan entitled "North Elevation Alternative".

(iv) Alterations to the northern edge of the ground (basement) level generally in accordance with those shown on the drawing entitled "alternative ground (basement) level" and the deletion of not more than 2 car spaces as a consequence thereof.

(v) Modifications to the southeast corner of the building so that the southern alignment of levels 1 and 2 created by apartments 1.07 to 1.09 at level 1and 2.07 to 2.09 at level 2 is followed to the Devonshire Road frontage.

(vi) A reduction in the intensity or lightening in the colour of the prominent black boxes on the upper levels at the corner, generally as shown on the revised photomontage dated 5 March 2004 [Exhibit A-6 in application for review no. P2461/2003].

(vii) A schedule of external building materials and colours, including details of cladding and roofing materials;

(viii) The provision of screening along the southern boundary to prevent direct views from the Uniting Church car park and Devonshire Road toward the courtyards at level 1.

(ix) Engineering plans showing a properly prepared design with computations for:

(a) The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system in accordance with the requirements of Condition 23.

(b) The drainage works necessary to connect the subject land to the Council nominated point of discharge.

2. The café must not provide more than 60 seats for patrons.

3. The café must only be open to the public between the following hours:

4. Not more than one medical practitioner may consult patients at the medical centre at any one time.

5. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

6. Once the development permitted by this permit has commenced, it must be continued and completed to the satisfaction of the Responsible Authority.

7. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping and streetscape works plan is submitted to and approved by the Responsible Authority. When approved the plan shall be endorsed and form part of this permit. Such a plan must be generally in accordance with the landscape plan tendered at the hearing of Application for Review P2461/2003 (being Drawing 2342/1A, Revision A, dated 20.3.04) but modified to show:

(a) Details of planting and landscape wok throughout the site and adjoining road reserve;

(b) Nomination of vegetation for removal throughout the site;

(c) 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;

(d) Paving, retaining walls, fence design details and other landscape works including cut and fill;

(e) Additional planting along the Lambourn Road frontage of the development in the increased setbacks referred to in Condition 1(i) including the addition of a suitable canopy tree within the northwest corner, and

8. Before the use allowed by this permit starts, landscaping and streetscape works as shown on the endorsed plan(s) must be completed to the satisfaction of the Responsible authority and then maintained to the satisfaction of the Responsible Authority.

9. The development must not commence until a satisfactory First Rate energy report is submitted to and approved by the Responsible Authority demonstrating that the development can achieve a four star energy rating or higher, or can achieve a four star energy rating subject to amendments.

10. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plan(s) and must be drained and provided with an all-weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

11. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

12. The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the access lanes must at all times be clearly indicated on the ground to the satisfaction of the Responsible Authority.

13. A sign or signs must be provided to the satisfaction of the Responsible Authority to direct drivers to the on-site car parking area(s). Such sign(s) must be located in the vicinity of the frontage of the subject land and maintained to the satisfaction of the Responsible Authority. The sign(s) must not exceed 0.3m2 in area.

14. The parking area shall be appropriately signed so as to designate specific parking areas for use by the disabled, residents, staff and visitors to the building. The parking spaces shall be allocated so that not less than:

(a) At least 1 car space must be allocated to each apartment;

(b) 3 car spaces to be available for visitors to the apartments;

(d) 3 spaces are available for staff of the restaurant;

(e) 2 spaces are available for the staff of the post office, which spaces must be selected from the spaces numbered 29-35 on the plan entitled "alternative ground (basement) level".

15 Except with the consent of the Responsible Authority, the 7 at grade car spaces at the rear of the land must only be used for staff or resident parking, to the satisfaction of the Responsible Authority.

16 The door providing vehicle access to the car park within the building must be operated by a remote control system, to the satisfaction of the Responsible Authority. An intercom system must also be provided at the entrance to the car park within the building to enable visitors to access visitor car spaces, to the satisfaction of the Responsible Authority.

17 Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed to the satisfaction of the Responsible Authority. Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and naturestrip to the satisfaction of the Council. All vehicle crossing works are to be carried out with Council Supervision under a Road Opening Permit.

18 Prior to commencement of the use, a waste/recycling management plan must be submitted to and approved by the Responsible Authority.

In the preparation of the waste/recycling management plan, specific attention will be made to the following items:

(a) How the collection of refuse and recycling material will be managed;

(b) What will be the frequency for the removal of such refuse and recycling material;

(c) How it is intended to control the emission of odour caused by such refuse and recycling material when it is being stored within the site;

(d) Where such refuse and recycling shall be stored within the site.

19 The use or development permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.

20 The subject land must be kept neat and tidy at all times and its appearance must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality.

21. Goods, equipment, packaging material or machinery must not be stored or left exposed outside a building so as to be visible from any public road or thoroughfare.

22 Floodlighting of the building must not be provided unless otherwise approved by the Responsible Authority. Baffled security and safety lighting may be provided to the satisfaction of the Responsible Authority.

23 Prior to the commencement of any buildings or works, engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system must be submitted to and approved by the Responsible Authority. On site detention will require restriction of stormwater flows from the site to that of pre-development levels.

24 The owner/developer under this permit is required to construct at no cost to Council drainage works between the subject land and the Council nominated point of discharge. Such drainage works shall be designed by a qualified engineer and submitted to Council's Engineering Services section for approval. Construction of the drainage system must be carried out in accordance with Council specifications and under Council supervision.

25 Noise emissions from any equipment required for refrigeration, air-conditioning, heating, ventilation and the like must comply with State environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 and/or Environment Protection (Residential Noise) Regulations 199.7 and/or Environmental Protection Authority Noise Control Guidelines TG 302/92, which ever is deemed to be appropriate by the Responsible Authority.

26 The use permitted by this permit must not be commenced or occupied until:

(a) the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority.

(b) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

27 This permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two years of the date of this permit.

(b) The development is not completed and the use commenced within four years of the date of this permit.

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

Mr N Tweedie, Barrister, instructed by Logie-Smith Lanyon, Lawyers.

Mr S Watt appeared on his own behalf and on behalf of J Watt, K and E Hunter, J and E Eid, C and B Ryan, E W and B C Woolnough, C Woolnough, N Stagg, J and J Wassell, A and S Fry, P and J Steel, L Mann, B Andrew, K Eddy, T and A Wilkie, D and N Scoberg, A Unkles, F Lycett, B and S Gray, S Mayer, D Farrell, G Galletly, A Jones, M Neal, G Hilling, J Hall, C Heyward, J Eycken and K O'Hearn.

Mr E W Woolnough also made submissions on his own behalf and on behalf of B and C Woolnough.

Mr G Burdon appeared on his own behalf and on behalf of B F Thomm, A P Repsys, M and M Nemet, G Branagan, M Tyrell and F Paull.

Mr M Newman and Mr S Mayer appeared on their own behalf.

1 This was an application under s 77 of the Planning and Environment Act 1987 against the decision of the City of Banyule [the Council] to refuse the grant of a permit with respect to permit application no P251/03. The permit application, as submitted to the Council, sought permission for the construction of a 6 storey building accommodating 34 apartments, 3 commercial tenancies and associated car parking on a site comprised of the properties at 73 - 77 Devonshire Road and 9 Lambourn Road, Watsonia.

2 The permit application was lodged with the Council on 23 April 2003. The Council required notice of the permit application to be given and in response it received 73 individual objections and 2 petitions containing approximately 1000 signatures. The grounds of objection were summarised at pages 7 -8 of Mr Cicero's written submission. In broad terms they covered issues relating to the impact on neighbourhood character, particularly with respect to the height, bulk and setbacks of the building, traffic and car parking, as well as various amenity concerns including the impact on views, overlooking and shadows. On the 26 September 2003 the Council made its decision to refuse the grant of a permit on the following grounds.

1. The proposal is an overdevelopment of the subject site.

2. The height, bulk, scale and design of the building are inappropriate for the site and will have a detrimental impact on the surrounding area.

3. The proposal will impact on the amenity of surrounding properties and in particular the property to the west.

4. The proposal fails to provide sufficient on site parking for the proposed land uses.

3 At the hearing, Mr Cicero and Mr Tweedie tabled and spoke to written submissions. Mr Watt, Mr Burdon, Mr Newman and Mr Woolnough made oral submissions on their own behalf and on behalf of the other persons they represented. Mrs Watt tabled and read a written submission on behalf of Mrs Willimott who was unable to attend the hearing.

4 We also heard expert evidence from a number of witnesses. Mr Cicero called Mr Marco Negri to give evidence on town planning/urban design issues. Mr Tweedie called Mr Gary Martin, an architect/urban designer, Mr Robert Milner, a town planner and Mr Stephen Hunt, a traffic engineer to give evidence in relation to their respective areas of expertise. All witnesses were made available to be cross-examined by opposing parties and questioned by the Tribunal.

5 In addition, the parties also presented other material relevant to the consideration of the proposal. This included various plans, maps and diagrams; an extensive array of photographs of the subject land and surrounding area; a copy of the Watsonia Business Plan 2003 and the adopted version of the Neighbourhood Character Study as it relates to the GS1 precinct within which the subject land lies. The documents have been retained on the Tribunal's file.

6 After the hearing we inspected the subject land and locality. On our inspection, we viewed the subject land from various vantage points, including the adjacent streets, within the dwelling and backyard of Mr and Mrs Woolnough's property at 11 Lambourn Road, the Watsonia Uniting Church and its associated car park and other locations further afar including further west along Lambourn Road and from the Greensborough Highway.

7 At the commencement of the hearing we dealt with a number of preliminary matters.

8 First, a number of persons represented by Mr Watt and Mr Burdon had either not objected to the permit application or not lodged a Statement of Grounds. Mr Watt and Mr Burdon requested that they be joined as parties to the proceeding as they have an interest in the matter. Mr Tweedie, Mr Cicero and the other objectors offered no objection to them being joined. The persons represented by Mr Watt together with the persons he represented and the persons represented by Mr Burdon who were not parties were joined under s. 60 of the Victorian Civil and Administrative Tribunal Act 1998 [VCAT Act].

9 Second, Mr Tweedie applied to amend the permit application by substituting amended plans (dated 15 January 2004) that had been circulated before the hearing in accordance with directions given by the President on 21 November 2003**.** Mr Tweedie advised that the shadow diagrams forming part of the amended plans circulated had been found to be inaccurate. He sought leave to replace those plans with corrected shadow diagrams [marked Exhibit A1]. The other parties offered no objection to the amendment of the plans including the corrected shadow diagrams. The amendment was allowed under Clause 64 in Schedule 1 of the VCAT Act.

10 The subject site is located on the southwest corner of Devonshire Road and Lambourn Road. It has a total area of 1811m2. The northern boundary (Lambourn Road) of the subject site has a dimension of 62.10m, the eastern boundary (Devonshire Road) is 42.17m, the southern boundary is 51.41m and the western boundary is 45.05m. The land has a fall of about 4.5m from west to east.

11 The subject site comprises four allotments. The lot to the south (73 Devonshire Road) is developed with a single storey building built to the frontage that is used as the Watsonia Post Office. It has a dwelling to the rear. The lot to its north, at 75 Devonshire Road, is developed with a single storey shop, also extending to the frontage. The shop is vacant. The corner lot (77 Devonshire Road) is used for the purposes of a retail plant nursery, providing a break in the commercial frontage, and an osteopath's clinic that is accommodated in a single storey building located on the corner of Lambourn Road. The lot extending across the western part of the subject site is known as 9 Lambourn Road. It is developed with a single storey brick dwelling set back 7.5m from the frontage. It has a driveway and carport on its eastern side.

12 There are six indented car spaces adjacent to the Devonshire Road frontage and an area of landscaping on the corner of Lambourn Road. Adjacent to the Lambourn Road frontage there is parallel parking for approximately 7 vehicles. A roundabout controls traffic at the corner. There are pedestrian crossings across both roads.

13 The property abutting to the south (67 Devonshire Road) is developed for use by the Watsonia Uniting Church. Adjacent to the frontage there is an informal, gravel car parking area. A single storey brick building accommodates a church and hall. It is set back approximately 2m from the western portion of the subject site.

14 The property abutting to the west (11 Lambourn Road) is developed with a single storey brick dwelling and outbuildings. The dwelling is set back a minimum of 7.5m from the frontage. A 3m wide driveway on the eastern side leads to a garage adjacent to the shared boundary. The dwelling has one habitable room window facing directly towards the subject site.

15 On the northern side of Lambourn Road, on the corner of Watsonia Road, there is a two storey building that accommodates a number of business uses. To its rear there is an off-street, public car park providing 21 car spaces. Further to the west there is a single storey dwelling (6 Lambourn Road) and a single storey dual occupancy development (8 Lambourn Road). South of the church on Devonshire Road there are detached, single storey dwellings.

16 On the opposite side of Devonshire Road there is a railway line cutting. The railway runs under the intersection of Devonshire Road/Watsonia Road and Lambourn Road to the Watsonia Railway Station. The station lies approximately 110m to the northeast of the subject site.

17 The Watsonia Shopping Centre extends along the western side of Watsonia Road, to the north of Lambourn Road and south towards the Greensborough Highway. It comprises single and double storey buildings. The area to the south and west of the commercial strip comprises an established residential area that has developed since the 1950s. Most properties have detached, single storey dwellings of brick or weatherboard construction.

18 The amended proposal comprises a five level building, accommodating 32 apartments, 3 commercial tenancies and 44 car spaces.

19 The commercial tenancies would be accommodated at the lower ground level, fronting onto Devonshire Road. The proposed uses are a post office (94.5m2), a medical centre (85m2) and a 60-seat café/coffee shop (198.4m2) on the corner of Lambourn Road.

20 There is proposed to be a semi-basement car park with 37 car spaces accessed off Lambourn Road. There are also 7 at grade car spaces within the southwest corner of the site, accessed via a 3.5m wide driveway off Lambourn Road.

21 Level 1 would comprise 13 apartments. Of those, 3 have balconies facing Devonshire Road and two levels of accommodation. Level 2 would comprise 12 apartments. A further 7 apartments would be provided on Level 3.

22 The building would be built to within 600m of the Lambourn Road frontage, with marginally greater setbacks at the upper levels. Along Devonshire Road the café, and the apartments above it, would abut the frontage. The other commercial tenancies, and apartments above them, would have staggered setbacks to the frontage. On the southern boundary the building would incorporate a 14m long section of wall rising to Level 2, with a maximum height of 12.8m. The upper level would be set back a minimum of 5.905m from that boundary. The western façade of the building would be set back a minimum of 5.345m at Level 1 and 5.545m at Level 2, with the setback at Level 3 increasing to a minimum of 9.345m. A 1.24m-wide landscape strip would be located between the western boundary and the driveway on that side of the building.

23 Allowing for variations in ground level, the maximum height of the building would be between 14.75m to 15.75m. The proposed building adopts a contemporary architectural style, utilising brick, various colours of render, timber pergolas and glass balustrades.

24 The subject site is located within a Residential Zone under the provisions of the Banyule Planning Scheme. Pursuant to the table at Clause 32.01-1 a permit is required to use land for the purpose of a café and medical centre. No permit is required to use land for the purpose of a dwelling.

25 A post office [defined as postal agency under the planning scheme] already exists on the land. Postal agency also falls within the meaning of retail premises under the planning scheme. Although retail premises [and therefore postal agency] is a prohibited use in the zone, it was not disputed that this use may continue to operate as it has existing use rights. Under Clause 63.05, the use may continue, however, a permit is required for any buildings and works associated with such use.

26 Pursuant to Clause 32.01-4 a permit is required to construct two or more dwellings on a lot. Clause 32.01-6 sets out that a permit is required for buildings and works for a Section 2 use.

27 Given that the proposal is for a development of four or more storeys (excluding basement), the objectives, standards and decision guidelines of Clause 55 do not apply.

28 Clause 52.06-1 sets out the required car parking provision for the different uses. In this case a permit is required to reduce the requirement. Pursuant to Clause 52.07 a permit is also required to allow the construction of the building without an on-site loading bay.

29 The various decision guidelines in the planning scheme as set out at Clause 65 and the controls that trigger the need for a permit require consideration to be given to the State Planning Policy Framework [SPPF] and the Local Planning Policy Framework [LPPF] which includes the Municipal Strategic Statement [MSS].

30 As in all matters of this kind, the planning policy framework is extensive. We see no point in setting out all of the provisions in detail. They are included as an appendix to Mr Cicero's written submission and set out in detail in Mr Milner's report. Those documents are on the Tribunal's file.

31 It is worth noting, however, that the policy context includes Clauses 14.01 and 14.02 (Settlement), Clause 16.02 (Medium density housing), Clause 17.02 (Business) and Clause 19.03 (Design and built form), provisions of the Council's MSS at Clause 21.04 relating to the Key Elements of Residential, Commercial, Built Environment and Transport and Accessibility as well as the local policies at Clause 22.05 (Business Plans), Clause 22.06 (Housing) and Clause 22.07 (Residential Neighbourhood Character). It is also relevant to consider the proposal against Melbourne 2030 which, as the Tribunal found in O'Connell Street Developments Pty Ltd v Yarra City Council and Ors [2003] VCAT 448 is "......a final Strategy adopted by the Minister which the tribunal may consider and if the circumstances so require, must consider under Section 60(1)(b)(ii)".

32 Mr Cicero drew our attention to Amendment C33 to the planning scheme which proposes to introduce changes to the MSS and Housing Policy. Whilst the amendment was adopted by the Council in April 2003, we note that it has not yet been approved. In any event, Mr Cicero advised that the Council does not rely on the changes proposed in the amendment in this matter.

33 With respect to the "Business Plans Policy" at Clause 22.05, Mr Cicero and Mr Tweedie also drew our attention to the Watsonia Shopping Centre Business Plan 2003 [2003 Business Plan] which we understand has been adopted by the Council and is proposed to be included within the planning scheme as a reference document under Amendment C34. The decision guidelines at Clause 22.05-4 of the policy state that in considering any application to use or develop land zoned business or industrial, the responsible authority "shall have regard to any relevant business plan adopted by Council". We are also somewhat sceptical about the Council's ability to simply adopt a different business plan at any time that it chooses and then to have the expectation that the new business plan would enjoy the support and force of the policy at Clause 22.05, without the need for a scheme amendment. This could be described as a "backdoor" way of changing the scheme.

34 In any event, the fact of the matter is that, strictly speaking, the policy at Clause 22.05 does not apply to the subject land as it is zoned residential. However, the 2003 Business Plan has been adopted by the Council and, at the very least, provides some guidance as to what Council's strategic thinking is for this area. Whilst we do not consider that it enjoys the force of the policy at Clause 22.05 in this case, it is a strategic document that we consider we can have regard to.

35 We do not propose to recite in detail the submissions and evidence put before us. Rather, we will deal with the matters raised by the Council and the objectors as they relate to the issues that require our consideration. We consider that the key issues in this matter are:

1. Is there strategic support for the proposed development and uses?

2. Is the proposal acceptable in terms of urban design considerations?

3. Has the proposal appropriately addressed traffic and parking issues?

4. Will the proposal result in any unreasonable off-site amenity impacts?

36 Before turning to these issues, it is relevant that there was no dispute that the subject land presents itself as a redevelopment site. This is not surprising given that the land is relatively large, centrally located between the north and southeast legs of the shopping centre and in close proximity to the railway station and a range of facilities and services. The buildings on the land are not particularly significant. We agree that the land is strategically well placed and, given its context, is an under-utilised resource. It is ripe for redevelopment.

37 The fundamental nature of the concerns raised by the Council and objectors related to the appropriateness of the commercial uses as well as the impacts associated with the form and intensity of the building. We now turn to the consideration of the key issues in this matter.

Is there strategic support for the proposed use and development?

38 Despite the residential zoning of the subject site we consider that the continuation of commercial uses on the section fronting Devonshire Road is acceptable.

39 That section of the land has a long history of non-residential use and, irrespective of its zoning, those uses have created a link between the northern and south-eastern section of the shopping centre. Mr Martin described the subject site as a peninsula site, in that it links the north and southeastern sections of the Watsonia shopping centre. On our inspection, it was clear that the commercial uses that exist on the land reflect a continuation of commercial use and form part of the centre.

40 There is also support for the continuation of commercial uses along Devonshire Road in the 2003 Business Plan_._ It recommends that the Council investigate the possible rezoning of the properties at 2/77, 1/77 75 and 73-71 Devonshire Road to Business Zone 1. The rationale (at pages 40-42) is as follows:

The Centre is mainly within a Business 1 zone...However, a smaller portion of the centre south of Lambourne Street [sic] is zoned Residential 1, while the area along Greensborough Rd and south of the railway line is zoned Business 3...

.........The Residential 1 area is perhaps a point of concern. This area, which includes the Post Office and a plant nursery, is an integral part of the centre and links areas north and south. The residential zoning would allow pressure for non-retail/commercial development in the future. [our underlining]

There is some talk of a possible re development of the site on the corner of Lambourne [sic] and Devonshire Roads. That is considered a positive shift towards the growth of the centre. However, it is important that the existing businesses still have a place within the centre and it is recommended that the executive of The Association relay this to the developer.

41 In relation to the proposed commercial tenancies, Mr Burdon submitted that the post office is in an inappropriate use in a Residential 1 Zone, especially as it causes parking problems on the corner. He saw the redevelopment of the land as an opportunity for the post office to relocate and thus rectify existing problems. Mr Watt also queried whether there is a need for the café restaurant and cast doubts over its viability.

42 We appreciate that the 2003 Business Plan only calls for the existing uses to be retained in the centre, rather than on the subject site. Nevertheless, we do not consider that Mr Burdon has established a case for exclusion of the post office. It is not an overly large facility and it is one that has existed for many years. It is a facility that serves both residents and businesses. The Council did not share Mr Burdon's concerns and we were not persuaded that this use alone contributes to parking issues on the corner.

43 In relation to Mr Watts concerns, we refer to the well known decision of the former Planning Appeals Board in Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126] in which the issue of 'need' was discussed as follows:

Need is a relevant consideration, but not an essential requirement......If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.

44 In relation to concerns that a café may not be economically viable in this location, we simply note that it is not a relevant planning consideration. In any event, Mr Watt presented no evidence to back up his assertion. In contrast, we note that there is general support for a café in the centre in both the 1998 and 2003 Business Plans.

45 With respect to the proposed residential component, there is strong policy support, in both the zoning of the subject site and the State and Local Planning Policy Frameworks, for the development of higher density housing.

46 The purpose of the Residential 1 Zone at Clause 32.01 includes to implement the State and Local Planning Policy Frameworks and To provide for residential development at a range of densities with a variety of dwellings to meet the needs of all households. We do not accept Mr Burdon's submission that the purpose relates to low density development, or 2 dwellings on each of the lots comprising the subject site. The purpose clearly refers to a range of densities.

47 Clause 14.01 of the SPPF encourages consolidation of existing urban areas and higher density and mixed use development near public transport routes. That objective is reinforced in the State policy relating to metropolitan development at Clause 14.02. It also accords with the broad objectives of Melbourne 2030, particularly those relating to a more compact city and increased housing densities in and around Activity Centres. It is axiomatic that the development of 32 apartments, on land that is arguably located within or at least directly adjacent to an activity centre and in close proximity to the rail network is consistent with State planning policy.

48 We also consider that there is strong support in the LPPF. On the strategic map for "Element 1: Residential" which forms part of Clause 21.04, the subject site is within an area for Encouragement of medium density housing close to public transport and commercial community services.

49 The proposal is also supported by the commercial policies of the MSS that aim to have more people located near shopping centres to increase the viability of commercial activities. Given the proximity of the subject site to a fixed rail line and a major highway the proposal is also supported by the MSS provisions relating to transport and accessibility.

50 The MSS emphasises the need to diversify housing stock in the municipality. It highlights that there is an ageing population, declining household size and changing household composition and a lack of housing stock to cater for associated needs. That dilemma was a major focus of Mr Milner's evidence. Drawing on Census data and Department of Sustainability and Environment forecasts he highlighted that Banyule has an increasing number of couples without children. That is a feature of other municipalities and Melbourne as a whole.

51 We accept that the proposal has the benefit of providing a form of housing that works towards the diversification of the municipality's dwelling stock. This is an outcome that is sought by local policy in response to the relatively poor level of variation in the municipality's housing stock compared to other municipalities and Melbourne overall.

52 Mr Watt queried whether apartments of the type proposed are appropriate in terms of their liveability. Apartments may not be the form of housing that Mr Watt prefers. He may not like them. However, there are many people within the community that do have a preference for this form of housing. In this case, the apartments would provide compact, low maintenance dwellings with secure on site parking in walking distance to shops, various facilities and public transport. It is important and desirable that communities be provided with variety so that choice is available.

53 We accept Mr Tweedie's submission that there are very limited opportunities to make significant changes to the housing stock within Banyule. As noted by Mr Tweedie, there are limited areas where medium density housing is specifically encouraged on the MSS's residential strategic map. There are also limited opportunities within those areas given additional constraints related to heritage, vegetation protection and drainage. The rhetorical question posed by Mr Tweedie is apposite: If increased housing density is not going to be provided on the subject site [or sites like it], then where is it going to be provided?

54 In summary, we accept Mr Tweedie's central propositions that there are rare opportunities for higher density residential development in the municipality and that the subject site provides an excellent opportunity for such development given its proximity to transport services, strategic considerations, the limited residential interface and the lack of other constraints.

55 We also accept Mr Tweedie's argument that when you get an excellent opportunity, you should run with it...as a strategic imperative. That is, there is a clear strategic imperative to make the most of... the opportunity.

56 Mr Tweedie rightly acknowledged that that strategic imperative does not mean that inappropriate development should be allowed. We accept his proposition. What remains to be determined is whether the design and level of development proposed are appropriate having regard to the attributes and context of the land as well as the amenity impacts. It is to those matters we now turn.

Is the proposal acceptable in terms of urban design considerations?

57 We acknowledge Mr Cicero's submission that the implementation of Melbourne 2030 is yet to provide tools that spell out what built form outcomes are acceptable to give effect to the strategic objective of increased density. That predicament was recognised by the Tribunal in Dzanovski v City of Banyule & Ors (Application for Review No P1411/2002 MNC [2003] VCAT 217) in relation to a proposed 8-storey building at 120 Burgundy Street, Heidelberg. At page 9 the Tribunal stated:

Based on our reading of the existing Scheme provisions, there is an emphasis on promoting development and broadening the use base. That will, of course, bring change. However, we find nothing within the policies of the Scheme itself to give specific guidance as to how change in an activity centre such as Heidelberg Central is to be managed in design and built form terms.

58 We face a similar predicament. Like the situation in Dzanovski there is a Business Plan to have regard to. However, the key clause of the Planning Scheme is Clause 19.03 (Design and built form), especially as the provisions of ResCode do not apply. As put by Mr Cicero, the design principles of Clause 19.03 are the Ten Commandments.

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

60 It is useful to present our findings on urban design and built form in terms of the relevant design principles in Clause 19.03-2.

* Development must take into account the natural, cultural and strategic context of its location.

* A comprehensive site analysis should be the starting point of the design process and form the basis for consideration of height, scale and massing of new development.

62 The consideration of context is directly relevant to the issues of building height and the interface with adjoining properties.

63 We consider that the massing of the proposed building is a logical response to the natural...context, or topography, of the subject site. The design takes advantage of the slope of the land so that on the higher land to the west, with a residential interface, there is a two storey presentation and the five storey form is on lower land at the Devonshire Road frontage.

64 We have already commented on the strong policy support for higher density development on the subject site. Those factors are part of the strategic context which development must take into account. Given the strong policy support we adopt the general principle, put by Mr Tweedie, that the yield of the site, or its ability to further strategic objectives, should not be reduced unless there are good reasons to do so. That principle was espoused by the Tribunal in Keylink Properties Pty Ltd v Yarra CC & Ors [1999] VCAT 242 and endorsed in other cases to which Mr Tweedie referred us [See WAF Construction Pty Ltd v City of Yarra & Ors (Application for Review P798/2003) and Bamfra Nominees Pty Ltd v Darebin CC & Ors (Applications for Review P1466/2003, P1467/2003, P1468/2003 & P1469/32003)]. That principle accords with Mr Tweedie's submission that there is a strategic imperative to development the site to its full capacity.

65 The second part of the design principle highlights the need for a comprehensive site analysis to guide design and provide a basis for consideration of height, massing and scale. On that matter we agree with Mr Negri that an analysis of the site's context must recognise the land's relationship with and position relative to a one sided commercial centre [ie: Watsonia Shopping Centre], the low scale nature of commercial buildings, and the consistent single storey scale of the residential area to the south and west. However, we also accept Mr Martin's evidence that despite the residential zoning of the land, and the residential interface to the west, a fundamental feature of the site is that it is a peninsula jutting into the commercial area. It is a natural part of the commercial strip.

66 The fact that the subject site is zoned Residential 1 and has a residential neighbour is relevant to the site analysis. However, we consider that a clear distinction needs to be drawn between the subject site and the residential hinterland. In that regard we agree with Mr Cicero's submission that the Residential Neighbourhood Character Policy at Clause 22.07 is of limited relevance to an evaluation of a design of the type proposed. As put by Mr Cicero, that policy figures very low down in the balancing of relevant policies.

67 It was conceded by Mr Martin that the design has not been influenced by the nature of the broader residential area in terms of site coverage, massing or scale. He did suggest, however, that the design has had regard to the colour of brickwork and the inclusion of timber pergolas and other domestic architectural features. Despite the inclusion of the latter we consider that the proposal is clearly incongruous to the future character envisaged for the Garden Character Precinct No 1: that is, the retention and enhancement of the area's valued treed streetscape character by designing new buildings in a style sympathetic with existing buildings and maintaining the overall scale of the area.

68 That future character is relevant to how the residential hinterland is likely to evolve. However, we accept Mr Tweedie's submission that there can be no reasonable expectation of maintaining the character of the hinterland and also restricting development where change is envisaged.

69 The policy at Clause 22.07, and the related brochure, purports to cover all land zoned Residential 1. However, we consider that different considerations should apply to a proposed mixed-use development of land that is a natural part of the commercial strip. That was acknowledged in the Council delegate's report on the application. It states that it is inappropriate to require development of this site to have similar characteristics to the surrounding suburban development. That was also the position of Mr Negri, Mr Milner and Mr Martin.

70 While the proposed development need not have the characteristics of the residential hinterland, the transition to that character, as exemplified by the neighbouring development at 11 Lambourn Road, is a critical issue that we consider in detail later.

71 With respect to the part of the context that is the commercial strip, it is clear that the prevailing height is single storey, although there are also 2 storey and 2 1/2 storey elements. For instance, the building on the opposite corner (referred to as the blue building) has a parapet height of some 8m.

72 Mr Tweedie, and the planning experts he called, asked us to have regard to the likely future built form, as envisaged in the 2003 Business Plan_._ Mr Tweedie submitted that the plan aims to guide physical development and land use decisions and represents an indication of how the Council sees the area developing. He argued that it is not over ambitious and its statements regarding preferred height are backed up by the rationale for the plan. Mr Tweedie submitted that even if we are critical of the way the plan is invoked, we should consider its provisions. For reasons outlined earlier, we consider the plan to be a relevant consideration.

73 Mr Martin considered that it is relevant to consider the aspirations for the area in the plan. Mr Milner was of the view that the plan provides clues as to appropriate urban design. It was, however, Mr Milner's evidence that the proposal for the subject site was formulated prior to any knowledge of the recommendations in the 2003 Business Plan for higher buildings.

74 Our attention was drawn to the following paragraphs of the plan (at page 42):

It is considered that the centre would benefit from the conversion of many of the single storey buildings to 2 or 3 storeys. This would result in the opportunity of providing shop top housing and office areas, gradually enabling most ground floor premises to return to retail usage.

Notably, the current zoning allows planning permit applications for site redevelopments that may include apartments and/or shop-top housing. This is a theme of `Melbourne 2030' - a draft State government planning policy that seeks to focus more medium density housing around public transport and retail nodes.

75 A recommendation of the plan is That shop top housing and other development in and around the centre be encouraged including up to 3 stories along the Watsonia Road strip.

76 As conceded by Mr Negri, the Plan presents the best, and only, understanding of the Council's vision for this area. The plan clearly promotes 2-3 storeys along the commercial strip. We accept Mr Negri's view that such heights represent a long-term prospect and could be optimistic. As noted by Mr Negri, given the small grain subdivision pattern the mass of buildings is likely to be limited. Nevertheless, given the thrust of policy, particularly the encouragement for more intense development within and around activity centres, we are prepared to accept that the context of the subject site will change, by the redevelopment of higher buildings along the commercial strip.

77 The critical issue is whether a building that is substantially higher than the existing built form in the area, and higher than the 3 storey height envisaged in the plan, is acceptable.

78 The proposed building is to up to 5 storeys and a maximum height of about of 15.75m. The maximum height is almost double the most proximate commercial building, the blue building that has a parapet height of approximately 8m. The number of storeys is greater than any future 3-storey buildings along Watsonia Road to the north, although the height may not be too dissimilar, given the higher level of that land.

79 The attitude of the many local residents involved in this matter can be summed up by Mrs Willimott's submission that the proposed building is a massive mis-match with any current structure within the neighbourhood and totally out of keeping with the neighbourhood character. She noted that local residents have not been opposed to gradual increases in housing density, in the form of unit developments and larger double storey dwellings, as they sit comfortably in the local landscape. However, she highlighted that there are no buildings over 2 storeys. Mrs Willimott acknowledged the suggestion in the Business Plan 2003 for 2 to 3 storey buildings in commercial areas but submitted that the proposed 5 storeys goes far beyond an acceptable interface between commercial and residential components. Mr Burdon described the proposed building as affrontingly tall and with a height at least double what would normally be acceptable in a Residential 1 Zone. He saw it as too big by a factor of 3.

80 In relation to the number of storeys proposed, those views were not shared by any of the planning or design experts. Mr Martin and Mr Milner considered 5 levels to be acceptable in this location. Mr Negri considered that a better fit would be achieved by three modifications - increasing the setbacks of the upper level, using materials at the upper level to create the perception of a more recessive form and lowering the architectural façade treatment so that it marks the 1st and 2nd levels rather than the 1st, 2nd and 3rd levels. However, he did not consider that a better fit required the deletion of a level. He also indicated that while he thought the upper level should be recessed, it should not necessarily be invisible.

81 As reflected in its draft permit conditions, the Council is supportive of a 4 level building. Mr Cicero explained that the conditions seek to amend the design so as to reduce its height by deleting Level 3 and replacing Level 2 with a reduced and recessed layout, as shown for the upper level on the original plans. Mr Cicero confirmed that a 4 level building would be acceptable to the Council, provided it is recessed at the upper levels.

82 We accept the expert evidence that given the context and attributes of the land it can accommodate a taller building that those in the surrounding area. Even though the business plan suggest a height of 3 storeys in this area, Mr Cicero submitted that the Council would accept a 4 storey building, albeit that the upper level should be recessed. Mr Negri accepted a 5 storey building, again, with the upper level recessed. When those submissions and evidence is considered together with that of the applicant's experts, it is clear that the land is capable of accommodating a taller built form than the surrounding area.

83 We accept that a 5 level building is acceptable in this location. We appreciate that the proposed building is likely to be the highest building in the area, even if other sites are redeveloped. We also acknowledge that there are no detailed guidelines that endorse such a height. Nevertheless, we accept Mr Tweedie's submission that such endorsement is not necessary in a situation where there is strong policy support for the extent of change represented by a building of the proposed height.

84 We also accept Mr Tweedie's proposition that if the proposal is acceptable on its merits, then we need not be concerned about creating a precedent. That is, if the proposal itself is acceptable we should not refuse it on the basis that it is the first development of a different type.

85 In support of that proposition Mr Tweedie drew our attention to the Victorian Supreme Court case of Harrod Hughes & Associates Pty Ltd v The Mayor, Councillors and Ratepayers of the City of Melbourne, 8 AATR 85. In that case, Justice Gobbo held (at page 90):

In my view it would be an abdication of the discretion that properly resides in an experienced Tribunal.....if it were to decline to exercise its discretion to grant a permit because to do so would be to create a forerunner or a "first of its kind" permit. If that approach would be adopted it would mean that Tribunals would never decide any case having a landmark quality because it could no doubt similarly be contended that it would be a case that should lend itself to more detailed guidelines so that the Tribunal would not make a forerunner decision and therefore make itself into a planning authority.

86 The proposed built form is not just relevant in the broader context. It must be considered in relation to the properties abutting to the south and west.

87 The bulk presented to the property to the west is a critical consideration. Mr Woolnough submitted that he would be looking at a high brick wall.

88 The existing dwelling at 9 Lambourn Road is single storey, commences 7.5m from the frontage and is set back about 1m from the shared boundary. However, it extends for only about 12m. In contrast, the proposal involves a wall, with height ranging between 7m and 8m, extending over a length of approximately 25m from a point 600m within the Lambourn Road frontage. The wall is set back a minimum of 5.34m from the shared boundary. In the setback there is a 1.24m wide landscaping strip and driveway to the car parking area.

89 The planning and design experts considered it to be an acceptable interface in terms of height and separation. Mr Martin conceded that the wall is not highly articulated. However, he pointed to the use of different materials and colours, the recessive third level and the incorporation of some shallow modelling to break up the visual bulk. We note that Mr Negri did not express any significant concern in relation to the height of the building or the extent of its western setback.

90 We acknowledge that the outlook from Mr and Mrs Woolnough's dwelling and backyard will change. However, we consider that the abovementioned features, together with the proposed pittosporum hedge, with a height of at least 3m, will result in a building that has no unreasonable impact on the neighbour's outlook.

91 Although it is likely to be of little comfort to Mr and Mrs Woolnough, we note that any redevelopment of 9 Lambourn Road with multiple dwellings, a form of development that is envisaged by the zone control and supported by policy, would also change the outlook from their property. We can only speculate as to whether the property at 11 Lambourn Road would be redeveloped on its own if this proposal were not to proceed or what the form of that development would be. An extension to the rear of the existing dwelling at 11 Lambourn Road would change the outlook that Mr and Mrs Woolnough currently enjoy. The point that we wish to make is that it is unrealistic to expect that that the nature of the buildings on adjoining land will always stay the same. There is always the prospect that redevelopment will occur, particularly in locations where planning policy encourages more intense development.

92 In this case we agree that the proposal will have some impact on the outlook from Mr and Mrs Woolnough's property towards the east. However, we consider that Mr Milner correctly highlighted that a positive aspect of the current proposal is that it leaves the back half of 9 Lambourn Road vacant

93 It was Mr Negri's evidence that the building fails to provide an appropriate or reasonable transition to the west at the frontage. He considered that it would be appropriate to introduce a stepped ground level setback to allow a more gradual transition that would allow an opportunity for landscaping to soften the appearance of the building from residential precinct.

94 Mr Milner noted that ResCode would require a 7.5m setback and conceded that development so close to the frontage is unusual in a Residential 1 Zone. He and Mr Martin supported a transition in setback. We agree that it is appropriate to provide a transition in the setback to Lambourn Road.

95 In response to Mr Negri's concerns, Mr Tweedie tendered an alternative Level 1 plan [Exhibit A-7] and an alternative north elevation [Exhibit A-8]. The plan shows a larger landscaped setback in the northwest corner, with the face of the western unit setback 4.5m and a 3m by 5m area available for in ground planting, including a canopy tree. In front of the next two units there would be a landscape strip approximately 1.6m wide, with the facades of those units setback 3.5m from the Lambourn Road frontage. Mr Tweedie submitted that the staggered setback would provide an appropriate transition in front setback with Mr and Mrs Woolnough's dwelling.

96 Mr Negri conceded that the alternative would be an improvement and it was fully supported by Mr Milner and Mr Martin. Our finding is that the revised setback and additional landscaping area would lead to an appropriate transition to the residential properties to the west.

97 The interface of the building with the property to the south occupied by the Uniting Church and its car park was also raised as a critical issue.

98 The proposed building has been designed to present a wall with a height of up to 12.8m commencing at the Devonshire Road frontage and extending over a length of about 14m down along the common boundary with the church car park. Extending to the west there is a further section of wall on the boundary. However, it is at a lower level (3m-4.5m) and forms a podium, comprising the courtyards of 3 apartments at Level 1. Some 4m high trees are proposed along the edge of the courtyards. Close to the northern façade of the church there is proposed to be a landscaping strip within the fence at the southern end of the proposed ground level car park.

99 Many of the objectors were highly critical of the high section of wall on the boundary. For instance, Mr Burdon submitted that it would be a quantum leap above what is there now. It was Mr Negri's evidence that the wall, with a four-storey scale, adjacent to the church car park, will be particularly imposing as a result of its height and width and placement towards the street.

100 In contrast, the experts called by the applicant considered the presentation to the south to be acceptable. Mr Martin thought the height was justified because it abuts a car park associated with a non-residential use. He also considered it appropriate to use changes in materials and textures, rather than articulation, to break up the mass. Mr Milner expressed the view that:

The building would not be overpowering in relation to the church hall...by virtute of the height of that structure, the design response on that elevation, and the significant separation provided by the intervening car park.

101 Mr Martin and Mr Milner both argued that a high wall on the boundary could be a benefit for any future redevelopment of the church site in that it would invite development on the church land to be constructed to the common boundary. Indeed, Mr Tweedie tendered an indicative plan [Exhibit A-4] showing a Development Option for the church site. It includes a series of 3-4 storey buildings along the Devonshire Road frontage, with the northernmost attached to the proposed wall on the shared boundary. Complementary podium landscaping is indicated behind the buildings.

102 Mr Negri also considered that a wall of the height proposed would be an unreasonable constraint on future residential development of the church site, in terms of built form and shadows. Mr Newman endorsed that view.

103 Irrespective of whether or not a high wall would be conducive to redevelopment of the church site for residential purposes we are not convinced that such speculation is relevant. The adjoining site has been used a church for more than 40 years and there are no current plans for change. Our consideration should be limited to how the proposal responds to the use of the abutting land as a church and associated car park.

104 In those terms we consider that the presentation of the western (rear) section of the proposed building is acceptable. In reaching that conclusion we have noted that an additional solid, or semi-transparent, fence may be required along the top of the wall to ensure the privacy of the courtyards.

105 However, we consider that the wall on the boundary at the front of the site is unacceptable in this context. A sheer wall of enormous height represents an unacceptable interface with the undeveloped land it abuts.

106 Our findings in relation to possible changes will be set out later, after we have considered the proposed boundary wall in terms of the presentation to the public realm.

107 The second design principle under Clause 19.03-2 is that The public realm, which includes main pedestrian spaces, streets, squares, parks and walkways, ...should be protected and enhanced. The fourth design principle is related. Under the heading Pedestrian spaces it states:

Design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows, and architectural decoration, should enhance the visual and social experience of the observer.

108 There was general acceptance that the inclusion of commercial premises, with glazing to Devonshire Road and Lambourn Road, would result in active street frontages that would enhance the pedestrian experience. We agree.

109 However, the design of the remaining section of the presentation to Lambourn Road was the focus of criticism, particularly by Mr Negri. Mr Negri considered that the ground level treatment of the western section of the façade provides a poor interface with the public realm. He criticised its hard edge, in particular its minimal landscaping and the projecting basement wall. He highlighted that the latter results in a blank wall below the floor level of the Level 1 apartments, with a height of 1.4m at the western end of the building and rising to 2.8m at the door to the basement. He thought that Level 1 at the western end of the building should be lowered so as to allow the 4 apartments to address and interact with Lambourn Road. He also considered that the setback of that section of the building should be increased to allow for landscaping to improve the relationship.

110 As noted earlier, Mr Negri indicated that the alternative Level 1 plan and north elevation could be an improvement. The modifications were also supported by the other experts. Mr Martin highlighted that it would result in a lower section of wall, setback 1.6m behind a landscaping strip, which would then interface with glazed balustrades. Mr Martin did not favour direct access to the apartments from the street. He concluded that the modifications would result in an appropriate response to the streetscape in that it would allow some surveillance of the street and also some privacy for the courtyards at a slightly higher level.

Gatum Holdings Pty Ltd v Banyule CC [2004] VCAT 1035

At a glance

Court

Decision date

Source

Judgment (282 paragraphs)

Gatum Holdings Pty Ltd v Banyule CC [2004] VCAT 1035 (31 May 2004)

Parties

Legislation Cited (1)