Glenferrie Developments Pty Ltd v Stonnington CC [2006] VCAT 832

Glenferrie Developments Pty Ltd v Stonnington CC [2006] VCAT 832 - VCAT 2006 case summary — Zoe

[7]

(a)

Changes shown on the plans marked as Revision B, dated 2/5/06 comprising modified window positions, relocated bins, external clothes drying facilities, bicycle storage and modifications to the balconies unless alternative locations for bins, bicycle parking and external clothes drying are approved by the Responsible Authority. The elevations are to be corrected to be consistent with the changes shown on these floor plans.

(b)

The deletion of either Room 09 or 10 on the ground level to provide an internal accessway/passage to the communal open space. Additional floor area may be added to Room 11.

(c)

Modifications to windows in ground level rooms as follows:

(i)

Convert the west-facing window in Room 4 to a highlight window;

(ii)

Screen the north-facing windows in Room 09 or 10 (whichever is retained as a result of Condition 1(b)) to minimise overlooking from the communal open spaces and car park.

(d)

Obscure glazing to be retained in existing south-facing and west-facing windows in the building at the first floor level. These windows must be modified so that the lower panes are fixed shut and the top window panes are openable.

(e)

Screening to the west-facing windows in Room 12 at the first floor level and Rooms 01 and 02 at the second floor level. Screening also to the northern edge of the north-facing balconies. Details of screening devices must be supplied.

(f)

Notations that the northern ground level exit door and northern external stairs shall only be used for fire escape purposes.

(g)

The car space located close to the north-west corner of the land to be a minimum of 2.7 metres wide or the adjoining landscaping kerb is to be no higher than 150mm above the level of the parking spaces.

(h)

Clearly visible signage on the existing northern fire escape stairs specifying the clearance height to the underside of the stairway.

(i)

The location of all plant and equipment including air conditioning units.

(j)

Details of bicycle parking spaces to confirm that they comply with the applicable Australian Standard.

(k)

Identification of kitchenette facilities in each room providing a sink, cooking facilities, cupboard(s) and a fridge.

(l)

Correction to the description of the property at No. 4 Donald Street to refer to brick.

(m)

A Management Plan in accordance with Condition 11.

(n)

A Waste Management Plan in accordance with Condition 12.

[26]

2 The subject site is located on the west side of Donald Street. It has a frontage of 28.2 metres and a site area of approximately 1,042.6 square metres. The subject site is developed with a part two storey and part three storey L-shaped building. A marker on the building's façade indicates that it was erected in 1938 for the Villa Maria Society. I was advised that the Society operated a residential facility for visually and possibly hearing impaired persons including elderly persons. The site was sold several years ago and is now occupied by the Lighthouse Foundation. On my inspection, the building was unoccupied except for a small office area on the uppermost floor. An informal open car park is to the northern and western portion of the site. It is accessed via a 2.7 metre wide driveway to the north of the building. That access has high metal gates. Landscaping is mainly limited to trees within the front setback behind a low brick fence.

3 The property to the north of the review site, at No. 7 Donald Street, is a single storey double fronted Victorian dwelling. It has three habitable room windows facing toward the review site including a bedroom and two kitchen windows. It has a rear private garden with some planting and a rear carport. That carport has access via a rear lane. The review site also has a narrow abuttal to that lane but it appears to be un-used.

4 The review site's other direct abuttals include Nos. 17 - 23 High Street. These are four residential lots each with rear private courtyards. The two properties that I inspected have open glazing to the rear (north) of the dwelling and No. 23 includes a deck that is elevated above the remainder of the attractive rear garden. No. 23 is a corner lot. No. 19 High Street has a carefully tended garden with a very large olive tree, a large lemon tree and other plantings. The existing structure on the review site is obvious from this row of dwellings. The review site also shares an abuttal along its western boundary with Nos. 2-4 and 6-8 Alfred Street. The former is a block of two storey brick units while the later are single storey dwellings with rear private open space.

5 To the east of the subject site, on the east side of Donald Street, are a three storey centre for the visually impaired persons at No. 2 Donald Street and then a row of single and one double storey dwelling at Nos. 4-10 Donald Street. The north-east corner of High Street and Donald Street is occupied by the St Francis Xavier Church.

6 High Street is a main road with tram services while Donald Street is a local residential street with parking restrictions. Those restrictions apply on weekdays and include no parking on one side of the street to allow for garbage collection one day per week between 9am and 10am.

[40]

25 I find no reason to depart from these conclusions in the circumstances of the current proceeding.

26 Second is the physical location of the review site and whether a student housing proposal accords with the directions contained within the policies set out in the Scheme. There is no doubt that the provisions of Clause 21.08, 22.06 and other policies focus on the protection of residential character and amenity. I discuss the physical aspects of those provisions later in these reasons and the social/demographic issues shortly. These amenity and character considerations are, however, only several of the multiple policies that are the basis for assessing this permit application. It is also evident that the Council has recognised and sought to respond to the challenge of address the housing needs of the population. [7] The Municipal Strategic Statement adopts a vision that emphasises harmonious and cosmopolitan lifestyles. Provision of housing choice is part of that, as is (inter alia) recycling of older buildings. Encouraging "suitable student accommodation close to large institutions such as Swinburne" is a specific policy direction.[8] The phrase "close to large institutions" is not defined however, at a distance of around 450 metres, I think that the review site can be said to be reasonably proximate to the Prahran campus of Swinburne.

27 On this latter point, I was referred to a draft Student Housing Policy adopted by the Council. It is not at a stage that can be influential weight in these proceedings. Nonetheless, I note that it adopts a figure of 400 metres from the Prahran campus of Swinburne as a "secondary area" [9] into which student housing should be channelled. Such sites are expected to be in business or mixed use zones and beside specified arterial roads. It is self-evident that the review site would not meet these criteria should they be given weight. However, it must also be accepted that the subject land comprises a locally significant heritage building that desirably should be recycled rather than being proposed for demolition. The building is adaptable for a student housing use in the model proposed in this application. In my view, the reuse of the building is a significant factor in support of the proposal and I accept the point made by the Applicant that options to recycle the building are limited. The proposed use seems to be more intense than the most recent experience of residential occupation of the subject building and higher density housing is sought by local policy to be located on nominated main roads. However that does not mean that a lower intensity of use must automatically be dictated if, on a proper and informed assessment, an intensive residential use is found to meet other tests relating to car parking, traffic and potential off-site amenity impacts such as noise and overlooking.

28 Third is the question of the existing social fabric of the immediate environs of the review site and how the proposed use would relate or impact on the community.

29 The Donald Street community appears to be dedicated to its neighbourhood and each other, articulate and community-spirited. Residents who presented submissions regard their community to be rare and something to be protected from a new profile of residents and particularly a facility with 44 resident students. It is interesting to view this argument when reading the provisions of Clause 21.08 and 22.06. The basis of the policies is the relationship of a proposal to the physical environment and impacts such as traffic, parking and noise particularly at night. None of the objectives at Clause 22.06 make explicit the issue of the social character of a residential neighbourhood when considering a new residential use. Even the draft student housing policy I have referred to does not mention this element.

30 Despite this, I do not think that the social and demographic matters raised by the community should be excluded from consideration outright, insofar as the features they value can be said to be part of the feel of the area. However, it must be recognised that these matters are not given significant weight in any of the local policies. Social effects can be a relevant factor pursuant to the provisions of Section 60(1A)(a) of the Planning and Environment Act 1987 and the Tribunal can take into account other relevant matters as set out at Section 60. However, based on the information before me I find no reason to reject the proposal simply because the facility would bring with it a "different type" of resident, being students who would rent units and may be relatively short term members of this community (although some may well stay for some years as they progress through their studies). Other divisions of the Tribunal have been critical of submissions based on the notion of excluding specific housing groups such as tenants[10]. While I understand that the Respondent Objectors derive great support from within their community, that is not reason to prevent others residing in the area as a matter of principle. There are means by which incoming students and existing residents could interact but it will be an individual choice as to whether that occurs. Thus, I am not persuaded to reject the proposal because it will modify the social fabric of the area.

31 Fourth are concerns by Respondent Objectors that the use may change to another purpose. The use applied for in the permit application is for student accommodation and a range of permit conditions are possible to ensure that the use of the review site is confined to that purpose as I discuss later. It would not be appropriate to deny a permit for a use and development that is otherwise found to be acceptable on grounds that it might, unlawfully, change to another use.

[42]

35 A number of issues were raised by the parties in relation to the internal amenity of the proposed development. These focussed on an absence of amenities within rooms, an overall lack of communal facilities and detailed matters such as the position of windows relative to public spaces. Some other matters were raised during the course of the Hearing and led to Mr Kelderman being invited by the Tribunal to tender a plan with some changes he recommended. These plans are marked as Revision B, dated 2/5/06, and are retained on the Tribunal file.

36 The main internal amenity issue is the extent to which communal spaces, such as kitchens, lounges and open spaces, are provided for the proposed occupants. This was a matter that led the Council officer assessing the proposal to recommend a reduction in the number of units to enable communal spaces to be provided on each floor. As proposed, there is an external communal outdoor area with a BBQ and a third level lounge.

37 The proposal has been formulated on the basis of advice from Mr Wilson and it was his evidence that additional communal spaces would not be used. He stated that students can inter-relate without them and that they are not used because of factors such as religious and cultural differences that give rise to, for example, a desire by students to cook using their own facilities. Mr Jeffreson explained that each room would have a kitchenette although I do not think they are clearly nominated on the plans (but they can fit).

38 I am not persuaded that there is a deficiency of communal spaces and facilities on the basis of Mr Wilson's experience that indicates the contrary. Based on his evidence, there are opportunities for interaction between students and pastoral care is available (including through the university system). I am not persuaded to increase the communal facilities although the plans do require modification so as to identify kitchenettes within each room. I also find that there are grounds to improve access to the communal open space to facilitate its use and that can be achieved by deleting either Room 09 or 10 on the ground level to provide an internal accessway/passage to the communal open space. With this change (and noting a floor level difference as this space is currently a stairwell) additional floor area may be able to be added to Room 11 and that would improve what is otherwise a relatively confined room.

39 I consider that arrangements for external clothes drying, rubbish bin storage and bicycle parking have been improved by the Revision B plans although there may be scope for further review in association with the Council. That can be addressed by way of a permit conditions. The location of these facilities as proposed on the Revision B plans will require some additional minor window changes as discussed at the Hearing and that can be dealt with easily. Specifically modifications to the ground level rooms are required as follows:

[45]

41 The main issues canvassed in submissions in relation to direct off-site impacts focus on the potential for overlooking, noise and increased shadowing. Visual bulk was not specifically raised as an issue by abutting neighbours. I address each disputed matter with regard to each interface.

42 The property to the north, at No. 7 Donald Street, has several habitable windows facing the review site and already experiences overlooking into its rear private open space from windows in the existing building. While some windows are more than 9 metres from that rear open space, some are not. Despite this, screening is shown between the north-facing balconies but not to the edge or to the rooms in the northern wing of the building that are closer to No. 7 Donald Street and have the potential for unreasonable overlooking. Views to No. 9 Donald Street are limited and more distant.

43 There are grounds for screening in my view and this would also address the potential for views into the rear open spaces of properties to the west of the review site at Nos. 2-4 and 6-8 Alfred Street that are open to view. Proposed landscaping may assist but the certainty of screening devices is necessary in my view for this site.

44 The use of the northern fire escape stairs to access the lower levels of the development was the subject of some discussion at the Hearing. This metal framed stair has direct and close views into No. 7 Donald Street and other properties at a longer view range. I am not persuaded that this stair should be trafficable on a regular basis and I will require notations to be added to the plans that the northern ground level exit door and northern external stairs shall only be used for fire escape purposes. The provision of an alternative passageway through the building as discussed at paragraph 38 will provide a better and more direct avenue for occupants to access the car park, external facilities such as bicycle parking and communal open space.

45 The land to the south is developed with four residential lots. At present, there are first floor windows with obscure glazing in the lower pane and the previous use of the land, involving those with sight impairment, appears to have cause little concern to adjacent residents. Although not specified on the plans I was advised that these windows would be retained and the Applicant did not oppose them being fixed with the upper pane to be openable. This is an acceptable outcome. The upper level would not result in overlooking to the south given skylights to the communal space at the top level. Ms Groeneveld was concerned that the opaque window pane in the first floor front windows had been removed and that occupants would be able to open their windows and look into her rear yard that abuts the front setback and part of the side wall of the existing building. I note that concern but do not consider that modifications to the windows are required.

46 Ms Groeneveld was also concerned about increased shadowing particularly in winter when her rear open space is already extensively shaded. I note that concern but the relevant test set by Clause 55 is the September equinox. The shadow diagrams indicate that the minor increase in overshadowing is within reasonable limits having regard to the tests under Clause.

47 Noise was raised as an issue for all adjacent residents who made submissions as well as those opposite the subject land on the east side of Donald Street. The proposal would result in additional noise than is currently experienced and may have been associated with previous uses of the land. On the evidence and information before me, a student housing development of this type is relatively quiet and does not result in late night parties and activities that some might recall from their own days as a student. Moreover, adjoining property owners can derive some comfort in the form of permit conditions addressing site management that would not usually apply to a conventional housing development or if, for example, students set up a shared house in the rental property at No. 7 Donald Street.

48 The conditions can address noise on the subject land, including some limit on the use of the communal open space as discussed at the Hearing, but do not address activity in the public realm. My evening inspection and some of the evidence confirms existing pedestrian use of Donald Street at night and that could be from people going to/coming from Chapel Street, nearby hotels or other residents (among a range of possibilities). While the proposal may cause more pedestrians on street with some additional noise, I do not think that there are sufficient grounds to reject the permit application for that reason in the context of the review site.

[46]

49 One of the primary concerns raised by the Council and Respondent Objectors is the potential or likelihood for the proposal to result in additional on-street parking in Donald Street. The Council's concern focussed on visitor parking, it otherwise accepting a reduced rate for car parking proposed on-site. Conversely, Respondent Objectors submitted that more spaces should be required for the proposed use, noting that Clause 56.02 would require one space per lodging room. The bases for these submissions are two fold. One is a concern that an already pressured on-street parking situation would be exacerbated by the proposal. The second is that reliance on on-street parking would bring with it greater safety risks for pedestrians and children in the street, increased traffic congestion and greater inconvenience to residents who cannot find a car park in the street.

50 In response to these and related concerns raised by the parties, the Applicant relied on the evidence of Mr Walsh and Mr Wilson as to the lesser needs for on-site car parking resulting from a student accommodation facility directed toward international students. Again I do not recite the detail as the statements are retained on the Tribunal's file.

51 As a residential building, the provisions of Clause 52.06 apply in relation to the amount of car parking required. That would be one space per lodging room (ie. 44 spaces). This permit application is also affected by the provisions of Clause 55 which also has a requirement for parking set out at Clause 55.03-11 Parking Provision. In this case, that would be one space per one bedroom dwelling[11] and visitor parking at a rate of one space for every five dwellings. I note the provisions of Clause 52.06 that the requirements of Clause 52.06-1 do not apply if (inter alia) there is a parking requirement for the particular use under another clause and Clause 55.03-11 could be said to do so. Whether under Clause 52.06 or Clause 55.03-11, there is an ability to grant a permit for fewer parking spaces that required by the table to Clause 52.06-5 or Standard B16.

52 The decision guidelines in both Clauses are not identical but have common elements such as the availability of pubic transport and on-street parking, local traffic management and safety considerations. Moreover, consideration of proposals involving a reduction in parking is assisted by Clause 22.13 setting out relevant factors for a reduction including restoration of a heritage building, if the parking generated by the use is lower than the requirements of Clause 52.06, if public transport is available and will be used, whether sufficient parking is available in nearby streets during operational hours and where the amenity of nearby residents is not adversely affected through the use of local residential streets for parking.

53 The case presented by the proponent in relation to car parking demands associated with the proposal is persuasive. Based on case studies of other student accommodation facilities and the format of the proposal, the uncontested evidence is that the likely rate of parking required to service the development will be much lower than associated with many other forms of residential use. The evidence presented by Mr Wilson and Mr Walsh indicates low car ownership rates for occupants of like facilities. The list included in Mr Wilson's statement at Appendix C shows the rate of car park usage in three developments in 2005 at rates that I calculate to be 0.02, 0.11 and 0.13 spaces per student.[12] His list also includes approved student housing developments setting out the number of students permitted and number of car parks within the approved plans for properties Student Housing Australia will commence managing in 2006 and 2007. I calculate those rates to vary between 0.08 and 0.33 for the 11 projects nominated.[13] Rate vary given locational factors and the higher rates are for properties in Malvern East, Hawthorn and Burwood whereas lower rates have been accepted for properties in Prahran, Carlton and North Melbourne. Mr Walsh adopted a rate of 0.15 spaces per bed (7 spaces for 44 students) as appropriate based on four case studies. With eight on-site spaces and 43 rooms[14] a rate of 0.19 would be achieved.

54 I note that two of the case studies were also referred to by Mr Wilson. Mr Wilson's rates were higher than shown in Mr Wilson's survey.[15] Adopting the higher rate identified in Mr Wilson's evidence, the estimated demand is still below that provided for by this proposal.

55 No data was able to be presented in relation to car parking rates for developments with students originating from locations within Australia. Nor was any specific data available relating to visitor parking associated with the case studies referred to other than in relation to one of Mr Walsh's case studies that included on-site visitor parking within the figures.

56 Thus, on the information before me and based on the intended use of the facility for students drawn from overseas, and primarily Asia, the amount of car parking proposed on-site would satisfy the projected demands of students resident on the land and probably also enable some visitor parking on-site (accommodated by a student opening the gates for a visitor or another arrangement approved by management). Bicycle parking demands are similarly not high based on the information provided by Mr Wilson and 10 spaces as suggested by the Council is generally in accordance with a minimum of eight bicycle spaces recommended by Mr Walsh. If students had another mode of vehicle such as a motorbike or moped then there would be opportunity for that to be parked as well.

57 The main difficulty I envisage in relation to car parking provision is the prospect that the building is used by students from other originating home-bases who have a different profile in relation to car ownership or car use. As indicated, there is no data before me on this point. One way to deal with this situation is to include a condition that requires the managing entity to advise prospective students that no on-site car parking can be provided once a situation is reached where incoming students with signed leases have been allocated the eight spaces available. That suggestion was not opposed by the Applicant and it would cause those with a car to be encouraged or directed to search elsewhere for accommodation. That type of restriction is desirable when the building has been accepted on the basis that it would be for predominantly overseas student use. I note that the Council has stated that it would not make resident parking permits available to residents of the proposed development and I do not intend making any findings in relation to that except to say that it is not a permit condition suggested by the Council and it is not a condition that I would include on a permit.[16]

58 Some visitor parking will occur on-street and it is possible that residents may park on-street from time to time instead of using their designated on-site parking bay. On the information before me, including my two visits to the site, I am satisfied that there is scope for on-street parking to service those visitors who might come to the subject development. The parking situation in Donald Street is pressured given that many houses have no on-site parking or do not use access available from a lane or a road. However, the area is not "parked out" and there are convenient options including parking along High Street.

59 The other arm of the case against the permit application relates to increased traffic on-street including waste collection vehicles. I am not persuaded that the additional traffic, to the extent that it might occur and/or be perceptible, is unreasonable even given the confined width of the street when parking occurs on both sides of the road and the presence of older persons and children in the street. The proposal enables all cars to enter and depart the site in a forward motion. Although I would prefer the driveway gates to be further into the site to avoid a vehicle overhanging the footpath when waiting for the gates to open, the width of the accessway does not allow for that possibility.

60 That leads me to address submissions on the adequacy of the access. It is 2.7 metres wide and less with the gates. It does not comply with the relevant Australian Standard and the Council sought for the driveway clear of the building to be widened to 3 metres. I am not persuaded to require any changes to the access shown on the plans as the arrangement exists today and is workable albeit not as one would design it if this was a new building (rather than a conversion). Other detailed changes to the car park sought by the Responsible Authority are not required or can be addressed by conditions. I am not persuaded to reduce the car parking spaces to seven as suggested by the Applicant to allow for more flexibility in relation to bin and clothes line locations. I am satisfied those facilities can be provided without the loss of a car space.

At a glance

Court

Decision date

Source

Judgment (70 paragraphs)

Glenferrie Developments Pty Ltd v Stonnington CC [2006] VCAT 832 (15 May 2006)

Parties

Legislation Cited (1)