[2003] VCAT 1768

It is directed that a permit must not be granted for the land at 462-466 Barkers Road, Hawthorn East.

Ms Marita Foley of Counsel, instructed by Maddocks and assisted by Ms Mary-Ann Taranto, Town Planner, appeared for the City of Boroondara. Ms Foley called the following persons to give evidence:

* Ms Roz Hansen, Town Planner with Hansen Partnership;

* Mr Rob Galbraith, Arboricultural Consultant; and

* Mr Michael Durkin, Traffic Engineer with GTA Consultants.

* Mr Christopher Canavan, QC, with Ms Juliette Forsyth of Counsel instructed by Aitkin, Walker and Strachan, Lawyers appeared for the following respondents: Andrew McDonald, John and Irene Sutton, John and Sonia Karkar.

Mr Canavan called Mr Jamie Govenlock, Town Planner with Urbis, to give evidence.

* Mr David O'Brien of Counsel appeared for Mr Alan Muir.

* The following respondent objectors appeared in person: His Honour Mr Justice O'Bryan, Ms Marjorie Millingen, Mr Malcolm Mulcare, Ms Vicki Rainsford and Mr Roland Orchard.

Mr Ian Lonie, Solicitor of Clayton Utz Lawyers. Mr Lonie called the following persons to give evidence:

* Mr Warren Pump, Environmental Auditor and Geo-environmental Engineer with URS;

* Mr Simon Beal, Traffic Engineer with Andrew O'Brien and Associates; and

1 This was an application under Section 79 of the Planning and Environment Act 1987 for review of Boroondara City Council's failure to grant a permit within the prescribed time to:

* Construct 53 dwellings on land zoned Residential 1 under the Boroondara Planning Scheme;

* Construct buildings and works on land in a Heritage Overlay, being Heritage Place No. 151;

* Alter access to Barkers Road - a Category 1 Road Zone; and

* Reduce the standard parking requirement for dwellings pursuant to Clause 52.06 of the Scheme.

2 The land, which has an area of 6,324 sq m is located at 464-466 Barkers Road Hawthorn. The land is currently developed with three detached dwellings fronting Barkers Road and, to their rear, the playing fields and car parking area of the adjacent Aila College - formerly Preshill Middle School.

3 The playing fields and car park occupy land that was formerly a sand quarry, excavated to depths of up to 13m. It is now filled, according to test results so far received, with mostly low level but also some higher level, contaminated fill.

4 This proceeding was conducted over five days. On the second day we inspected the subject land and immediately abutting properties.

5 The unrepresented respondent parties, other than Mr Justice O'Bryan, presented oral submissions. The other parties or their representatives, as well as the witnesses called to give evidence (except Mr Crisanti) tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other documents tabled in the course of the hearing have been retained on the Tribunal's file. An exception is the Muir's book of photographs. Mr O'Brien indicated that the Muirs would like their photograph book returned. This may be retrieved from the Tribunal after a period of one month from the date of this order. Unless collected within a further one month the book may be destroyed.

6 On Wednesday 19 November the Tribunal delivered oral reasons for its decision that a permit must not be granted. The following constitutes a revised transcript of those reasons, commencing with an outline of the principal issues in review.

7 The principal issues in this proceeding were the siting, design, visual scale and bulk of the apartment building in the south-west corner of the site and the siting and design of the six duplex dwellings along the rear, eastern boundary. The questions to be decided were whether they would impact unreasonably on the amenity of surrounding residential properties, whether they could be said to respect the character of the existing neighbourhood or whether they would affect the significance of the heritage place, including the individually identified heritage place of Rotha.

8 Also in issue was the degree to which any re-development for residential purposes necessitates removal or part removal of the existing contaminated fill - thereby warranting or limiting re-development to an overbasement, apartment style complex and requiring removal of almost all trees, other than those along the Barkers Road frontage.

* The ease of access into and out of the site from Barkers Road and within the site itself;

* The degree to which overlooking might occur within and external to the land;

* The desirability of certain of the open space areas - in terms of their dimensions or below ground location - and the circuitous access to many of the dwellings; and

* The opportunities for off-site stormwater discharge.

10 Our primary conclusion is that the scale, bulk, siting and design of the apartment building and of the six duplex dwellings would not respect the character of the neighbourhood, would impact unreasonably on the amenity enjoyed by surrounding residential properties - given the very high level of amenity enjoyed by them - and, due to its impact on Rotha at 29 Harcourt Street, would not achieve the outcomes sought under the Heritage Overlay. A purpose of this overlay is to conserve and enhance those elements that contribute to the significance of the Harcourt Street - Rathmines Village Precinct, being Heritage Place No. 151 on the table to Clause 43.01. A common characteristic of this Heritage Place is of mansions in large gardens.

11 We have not been able to be persuaded that either the Metropolitan Strategy - Melbourne 2030 - or the fact that part of the land comprises contaminated fill, provides sufficient justification for a development that is otherwise out of character with its natural, cultural and built form context.

12 The land is no better served by existing physical and social infrastructure than most other parts of Melbourne's inner to middle ring suburbs and, importantly, is not within or adjacent to any activity centre or fixed rail transport stop or hub - where the strategic focus for higher density redevelopment is greatest.

13 There being no State or Local Policy imperative to maximise the yield from this site - regardless of its existing built form context - it follows, we hold, that the outcomes sought under the zone and heritage overlay purposes and under the State and Local Policies for Medium Density Housing, Heritage and Neighbourhood Character, stand as the principal tests or criteria against which this proposal should be assessed.

14 Principal among these is that a development must respect the existing character of the neighbourhood and must, in terms of its location, bulk, form or appearance, be in keeping with the character and appearance of adjacent buildings and the heritage place and must conserve and indeed enhance those elements which contribute to the significance of the heritage place.

15 In order to determine whether a development respects the character of its neighbourhood - or its natural or cultural context - the Victoria Planning Provisions format planning schemes promote the use of a comprehensive site analysis (Clause 19.03) as the starting point for the design of new developments. The aim we suggest is to achieve site responsive designs - that is to say designs that respond to the constraints and opportunities presented by the site in question.

16 We have already said that this site does not enjoy the benefits or opportunity of a strategic location as identified in Melbourne 2030 or indeed the Local Planning Policy Framework. Another element of the site's matrix of opportunities and constraints is its filled and contaminated nature. As we noted in the course of the hearing it is important, prior to determining whether the development constitutes an appropriate design response, to understand the implications of such a constraint. Hence our insistence that we heard the evidence of Mr Pump prior to that of the permit applicant's design response professionals, Messrs Biles and Caulfield and Ms Von Hartel.

17 We think it was clear in this case that the design response - as affirmed by the witnesses called by the permit applicant - proceeded on a premise that turned out ultimately to be a false premise - namely that removal or part removal of the fill is a pre-condition of any residential redevelopment of this site.

18 This was an important issue to address because, in the way put by the permit applicant, it restricted redevelopment opportunities to ones requiring extensive level changes and hence the elimination of the site's existing tree cover.

19 However, the evidence of Mr Pump confirmed that excavation is not the only or even a preferred response, given the odour and contaminated dust emissions likely to arise in the event of removal.

20 We do accept however that should partial removal be ultimately adopted, the evidence of Mr Pump confirmed that this could be dealt with by way of conditions on an environmental management plan and without undue risk to nearby residents.

21 It was Mr Pump's evidence that until the issue of groundwater contamination is better understood - and the applicants chose not to pursue this further investigation prior to the hearing - the nature of remedial measures, if required, cannot be stated. We note however that it was his opinion that removal of the fill as a remediation measure is unlikely.

22 To conclude then, as excavation is not a necessary consequence of the contaminated and filled nature of this site, the design response of almost total tree removal and a sub-terranean level one to the apartment block, is not an imperative.

23 We now turn to the issue of trees. The evidence of Mr Galbraith and the R & T Tree Services Report (commissioned by the permit applicant) confirmed that there are a number of notable trees on this site that warrant retention. In the words of R. & T. Tree Services, Tree No 101 on the western boundary (Eucalyptus Globula although Mr Galbraith says and we agree that it is Eucalyptus Maculata - Spotted Gum) and Tree No 72 on the eastern boundary (Eucalyptus Citriadora), are the outstanding trees on this allotment and are stunning features in the landscape.

24 Also ranking highly by R. & T. Tree Services are Tree No 88, a Liquid Amber at the front boundary and Tree No. 102 to the rear of No. 462 Barkers Road and outside of the formerly filled area - the Eucalyptus Cineria (although Mr Galbraith says and we accept that this is a Mana Gum).

25 The Peppercorn grove - at least Trees No. 55, 58 and 56 the latter being outside of the site - should also be kept if at all possible, per the evidence of Messrs Galbraith and Wyatt and the Report of R. & T. Tree Services. We were provided with insufficient evidence to suggest that the existence of fill precluded their retention. That is to say, there had been no soil testing within their root zone and indeed they may not even lie within the former quarry hole at all - the Golder Report shows only an inferred boundary. It was the evidence of Mr Pump that even if located on contaminated fill, methods can be employed to prevent soil exposure and therefore contaminated dust emissions.

26 Similarly, the evidence was insufficient to suggest that the Casuarinas and Grevillia Robustas on the southern and eastern boundaries require removal - that is Trees 3, 8, 11, 22 and 24 on the R. & T. Tree Services Plan.

27 However, we accept the evidence of Mr Galbraith that all but one of the very attractive central grove of Mahogany Gums is affected by borer or otherwise compromised. It was also the evidence of Mr Wyatt that the track record of this species for unheralded limb drop militates against their use in a medium density housing development, and we accept his opinion on this matter.

28 To conclude then we find that retention of Trees 101, 102, 72, 88, 55, 56, 58, 3, 8, 11, 22 and 24 is warranted. We would need far more persuasive evidence than was put to us to suggest that their removal is a necessary consequence of any residential redevelopment of this site. We have already found that the excavation supposedly warranting their removal is not the only means of responding to the filled nature of this land. Rather it is a means of getting down to a basement gradient in a manner that enables a semi-sub-terranean level of ground floor apartments thought - although we have not found so - to not impact on the perceived scale of the buildings as read from outside of the site.

29 We now propose to assess each of the site's interfaces with a view to assessing their impact on the amenity, neighbourhood character and heritage significance of the surrounding area. We start with the southern elevation of the apartments.

30 The southern face of the apartments would be set about 700mm below existing natural ground level at the site's southern boundary. The building would then rise to 12.07m above ground, set back 5.2m to 5.95m for Levels One and Two, 10.7m at Level Three and 12.1m at Level Four. It would have an east-west eave length of 28m, 25m and 16m, depending on the level, which is virtually the entire width of Rotha's rear boundary. It is also upslope of Rotha, its gardens and its notable outbuildings.

31 We accept the evidence of Ms Hansen that this southern elevation - its design, height and in particular its width - fails to respect the mansion in a garden with picturesque outbuildings character of the two John Beswick designed dwellings to the south and the State Registered Rotha in particular. This is due to the site's more elevated position, to the bland and overly horizontal architectural lines (compared to those of Rotha and other nearby structures) and indeed to the generally low quality of the building's architectural expression. We note that a design principle at Clause 19.03 is for new developments to aspire to high standards of architecture and to create worthy legacies for future generations. We find that this elevation fails to achieve this outcome.

32 We find that the apartment building's visual bulk and prominence would trivialise or overwhelm the otherwise mansion in a garden character of Rotha - particularly when standing in Rotha's rear garden.

33 We found Ms Von Hartel's and Mr Biles' evidence to be compromised by the fact that neither had entered the surrounding properties and in particular Rotha's garden, when forming their opinions as to the character of the neighbourhood that is to be respected by this development.

34 While we accept that the rear yard character of some neighbourhoods may be able to be inferred - due to the sometimes common characteristics of suburban development - we suggest that some neighbourhoods are so individual in nature that a view from surrounding properties is an imperative. This is supported by the observations on the nature of neighbourhood character discussed in the report of the VicCode 2 Review Panel and referred to by Mr Canavan:

Character is also used to refer to the "feel" of an area - the atmosphere perceived not only from the street but from the backyard. This is a much more amorphus concept, reliant on intangible qualities such as peaceful, secluded, quiet, friendly etc as on descriptions such as green and leafy.

35 Our inspection confirmed a sense of seclusion, of spaciousness and in particular a feeling of being within a picturesque setting as important elements of the character and amenity enjoyed by the properties to the south, and Rotha in particular.

36 We have been unable to find that the barrack like visual appearance of the southern elevation would respect this character or that Mr Biles' suggestion to set the fourth level back by a further 3m would overcome our concerns. Neither do we accept that Mr Wyatt's skills as a landscape designer could effectively overcome this sense of stretched out horizontal form, given the dual courtyard plus landscaped setting role to be fulfilled by the 5.2m to 5.9m wide southern setback.

37 We prefer Ms Hansen's suggestions for more discrete modules. Indeed, provided a majority of built form was set well back from this southern boundary, to facilitate the dual function of courtyards and landscaping we would accept that a rear structure might even come closer in part - including the south-western corner - if what was visible complemented rather than overwhelmed the picturesque rear garden and outbuilding setting. We also wonder at the seeming rejection of locating greater bulk towards the site's centre as opposed to its margins. A rationale for higher density development on larger sites is the potential to locate greater scale toward the centre while stepping down or feathering out to a more seamless interface at the site's periphery.

38 We accept that for the most part the apartment building's western elevation to 4 Higham Road - formerly Yallambie - is a legitimate response to the existing conditions and educational use of that site. The former mansion house, Sir Owen Dixon's library and the Kevin Borland School wing, face inwards towards each other rather than towards the subject land, and existing mature trees provide a useful filter.

39 However the apartment building's design should, we are persuaded, have had more regard to the grove of Peppercorn Trees, Trees 55, 56 and 58, given their obvious potential to make a positive contribution to any development of the subject land as well as a continued contribution for the adjoining properties. We also question the mostly unrelieved horizontal form of the 45m to 52m long third and fourth level rooflines - not withstanding the greater articulation of the walls themselves. As in the recent case of the Melbourne City Council, Carlton Residents Association and National Trust v Minister for Planning VCAT 1525 (30 October 2003), we think the roof articulation pointed out by Mr Biles is rather too subtle to really achieve the level of articulation or modulation suggested by him.

40 Our findings in relation to the western elevation are made in the context of the exiting conditions at No. 4 Higham Road. It was put to us that this may well change given the issue of a permit to demolish all buildings and to subdivide the land into three large allotments. We agree that in this event, the context would change. We find however that we are bound, primarily, to consider the existing context, as will any future developers of the 4 Higham Road lots.

41 We accept the evidence of Ms Hansen and Mr Governlock that the box-like, rear eastern elevation to the six duplex dwellings, adjacent to the Muir's driveway and rear garden, constitutes a poorly conceived design response to the built form, scale and character of surrounding development - notably the Muir's property. Relevantly also Mr Biles appeared to concede as much in his suggestion for greater articulation of the first floor levels. The 3m to 5m setbacks would not ameliorate the looming uniformity and lack of visual interest exhibited by this row of buildings - a character that we find contrary to the more naturalistic and picturesque attributes of surrounding properties.

42 We also agree that the design fails to address the issue of overlooking - including between the buildings themselves. An objective of ResCode is to limit overlooking. We are not persuaded that the design response has had regard to this objective.

43 A design response that was less straight jacketed by the symmetry and repetition inherent in the Neo-Georgian architectural style adopted for these buildings could be investigated. We agree that the Option A plans tendered by Mr O'Brien were more respectful, given their more varied setbacks and the opportunity for landscaping that did not compromise the functionality of the courtyard spaces. A different roof form and the use of large east facing but high silled windows could allow advantage to be taken of the Muir's high canopy vegetation, without a reduction to their privacy.

44 We should say here that we were unable to be persuaded that the Tasmanian Blue Gum (Tree 20) is a specimen worthy of retention. Only one leader stem appears to be still alive. The weight of expert evidence - including that of Mr Galbraith - was against its retention. Although lopping, might result in new growth, it would lead to epicormic shoots that are inherently unstable in this species.

45 The removal of this tree and in the siting of the Sutton's folly provides an opportunity for a limited amount of built form at the site's south-eastern corner. We see opportunity, in this relatively tucked away corner of the site, for something similar in conception to the folly and the Muir's dwelling. That is, for something of the scale and form of a mansion's outbuilding. It would of course require careful design in order to complement the surrounding rear lane and garden setting - including that of the O'Bryan's dwelling to the south-east which we note was also described as an outbuilding on the development plans - perhaps because of its mews style character.

46 The design response fails to acknowledge the presence of the Eucalyptus Citriadora to the north-west of Ms Rainsford's rear garden at 468 Barkers Road. This is despite the tree being described in the R. & T. Report as outstanding and a stunning feature in the landscape. It is the basement entry that compromises this tree.

47 Other than this, we accept that in general terms the siting of townhouses C and G responds to their context adjacent to Ms Rainsford's side drive and garage. Notably the siting avoids overlooking of the pool and rear yard area.

48 Similar observations apply in respect of the property at 458 Barkers Road. In general terms the design response is not inappropriate - save and except that the Spotted Gum (101) and Mana Gum (102) are ignored. This is despite the weight of evidence in favour of their retention. We agree that the Barkers Road properties exude, a different character against which the development's response must be assessed.

49 It follows from our conclusions so far that the design of the rear part of the site is misconceived. We were not persuaded by Mr Lonie's submissions to either adjourn the proceeding to enable ground water testing to determine whether all fill should be removed or to direct the preparation of amended plans. We acknowledge that this may further extend the already lengthy involvement of the applicant and respondent parties in this project. We believe however that a substantial re-think is warranted and note that this further delay may at least enable the results of groundwater testing and other assessments to be factored into any future design response. Before concluding however we need to refer briefly to the other issues raised by the respondent parties.

50 We accept that large vehicles will need to reverse in, in order to exit onto busy Barkers Road in a forward direction. This is not ideal but we accept the evidence of Mr Beal that this is not unusual and that a robust approach is warranted. Garbage trucks can be confined to outside of peak hours as can deliveries.

51 Other vehicles can enter and exit the site in a forwards direction. While there may be some impact from vehicles attempting to turn right, into the site, the principal impact in terms of congestion would be within the site itself as residents wait to exit onto Barkers Road at the morning peak hour. We suggest that widening the exit might allow right turn drivers to not block those turning left in the more free flowing direction. Mr Durkin agreed with this although he suggested it was not a mandatory requirement

52 The usual course in multi-dwelling applications is to include a condition requiring connection to a legal point of discharge. It was brought to our attention that there may be a need to obtain access rights over Rotha's private laneway that also provides access to the Muirs and the O'Bryans. Alternatively access over the Karkars new subdivision at No. 4 Higham Road could be beneficial.

53 However, even if the stormwater was required to go down Rotha's lane we do not believe that the resultant disruption to access for the Muirs and O'Bryans would have warranted the refusal of a permit.

54 We have not been able to be persuaded that the issues raised in relation to the quality of open space, the circuitous pedestrian access to certain of the dwellings or to overlooking were sufficient to warrant a refusal of permit. As acknowledged by most of the witnesses, most of the concerns could be addressed by conditions on a permit.

55 Whilst these latter issues would not have been sufficient to warrant the refusal of a permit, as we have said already there are other reasons for refusing a permit and it is for those reasons that we have directed that no permit issue.