Victorian Civil and Administrative Tribunal|2004-05-31

Harick v Stonnington CC [2004] VCAT 1065 (31 May 2004)

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit. Mixed Use Zone. Heritage Overlay. Clause 54 One dwelling on a lot. Neighbour Amenity

The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

A permit is granted for alterations and additions to an existing building at 42 Charles Street, Prahran, generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. 0813/03 issued by the Responsible Authority on 31 October, 2003, modified by the inclusion of the following new condition:-

1 Before the development 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 with the plans submitted with the application but modified to show cladding materials along the lane to the south amended to reflect a more understated expression consistent with the surrounding building stock.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application to review the decision of the Responsible Authority to grant a permit for the construction of alterations and additions to an existing building at 42 Charles Street, Prahran. The application is made on the following grounds:

1. The proposed development will be excessively high and massive.

2. The proposed development will result in an unreasonable loss of light and an unreasonable sense of enclosure for the occupants of 1/38 and 2/38 Charles Street, Prahran.

3. The proposed development does not properly take into account the existing conditions in respect of 38 Charles Street.

4. The proposed development includes significant increase in the height of the southern wall of the subject building. This does not adequately address the issues raised by the Tribunal with regard to a similar proposal (P51965/2001).

5. The application plans are inadequate and confusing.

6. The proposed development does not properly address car parking, and vehicle movements.

7. The proposed development is an overdevelopment of the land.

8. The proposed development will unreasonably impact upon the amenity of the dwellings at 1/38 and 2/38 Charles Street, Prahran.

9. Any redevelopment of the subject building should be generally restricted to the existing building shell.

10.The proposed development does not properly address neighbourhood and heritage issues.

2 I was advised that the building on the review site has been used as a photographic studio with a caretaker's residence for over twenty years. The existing building is a brick, single storey former warehouse with, internally, a "U" shaped first floor mezzanine comprising a caretaker's residence and studio/office, with a void in the central area between. The building is proposed to be "gutted" and it is proposed to construct within the existing building shell a new first floor to be used for a studio/office and caretakers residence and to construct a mezzanine on the second floor for use as a gallery and photography platform.

3 The proposed extensions and alteration are intended to provide a "daylight studio" with a ceiling height to allow photography to be carried out from above on the second floor platform, and to provide an office/studio area with 3.5 m ceiling heights to provide more effective lighting for photographic activities.

4 Mr Um provided the following description of the external features of the proposal, which I adopt :

Changes to front facade: replacement of the pedestrian door with window and the existing roller door with a steel cage screen wall.

Removal of the existing crossover resulting in the reinstatement of two on-street parking spaces.

ii. Replacement of existing roller shutter and glass box window with translucent windows iii. Insertion of two additional translucent windows

iv. Two existing front floor glass block windows to be infilled with brick to match existing.

Construction of a first floor daylight studio with associated studio kitchen, a rooftop terrace within the front setback (Charles Street frontage). Setback of the first floor daylight studio from the existing front facade is 6.8m. This front setback will accommodate approximately 90sqm of open roof terrace.

Extend the existing rear caretakers residence that comprises one bedroom, bathroom/toilet, a living room and 2 small terraces approximately 4sqm and 14.5sqm in size. The caretaker's residence will result in the increase in the overall height of the existing building by 2.2m above the parapet of the existing southern wall at a length of 6.8m.

Construction of a second floor mezzanine level above studio kitchen. Building works are as follows:

i. The third storey (mezzanine) will be 5.1m in height above the existing side parapet level (southern boundary wall) producing a total height of 10.8m from ground level. The depth/length of the mezzanine is 115m and the width is approximately 4.4m.

ii. Installation of two, 15m deep canopy at right angles to the west facing elevation.

iii. Installation of a frameless glass balustrade with access from the mezzanine.

The flat roofed mezzanine will be finished in a mix of traditional and contemporary materials, including render and frameless glazing to the front facade, angled copper panelling to the southern elevation (atop existing wall) and the building up of the southern and rear walls in brick to match existing.

5 Mr Um provided the following useful description of the site and its surrounds which I adopt :

The subject site is located on the eastern side of Charles Street, Prahran, 40m south of its junction with Greville Street and opposite the Doon Street intersection. The site is largely rectangular in shape, with a frontage to Charles Street of 15.6m and a depth of 26.4m. The site area measures 415sqm.

The site is occupied by a former two storey warehouse, currently used as a photography studio/office and a caretakers residence. The warehouse styled building has a 7Sm high frontage to Charles Street. It is located within a heritage overlay and has a 'c' heritage grading.

A two storey brick commercial building abuts the northern boundary of the site. It wraps around the rear of the site, separated from the rear boundary by a 3m wide right of way. To the south is a 3m wide right of way and a two storey plus mezzanine floor, brick, factory building, converted to residential use (1/38 and 2/38 Charles Street).

The immediate surrounding locality, in particular toward the Greville/Charles Street junction, is commercial in nature and is utilitarian in appearance. It consists primarily of two/three storey high warehouses and factories, with a variety of uses currently employed, including commercial (eg. 70 Charles Street), residential (38 Charles Street) and warehouses (eg. 11 Charles St.). The existing warehouse building on the south- western comer of Charles and Greville Streets has recently been granted a permit for a three storey, eight apartment plus office development.

While buildings within the immediate surrounds are commercial and warehouse style residential developments, single storey cottage and brick style dwellings also exists on the western side of Charles Street, immediately to the north and south of the Doon Street.

6 The review site is zoned Mixed Use under the Stonnington Planning Scheme. The purpose of the zone is :

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

7 The use of the land for the purpose of a photographic studio is a section 2, permit required use in the zone. A permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.04-1.

8 The site is also affected by a heritage overlay (HO126) and a permit is required to construct a building and to construct or carry out works. Decision guidelines at clause 43.01-5 require consideration to be given to the following relevant matters :

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

Any applicable heritage study and any applicable conservation policy.

Whether the location, bulk, form or appearance of the proposed building will adversely effect the significance of the heritage place.

Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

9 As I have outlined above, the review site is located adjacent to the Prahran Railway Station and in close proximity to the commercial centre focussed on Commercial Road, Greville Street and Chapel Street, an area designated as an Activity Centre under the State Government's Melbourne 2030 strategy. In broad terms, the applicable policy framework encourages a mix of compatible commercial and residential uses within and close to activity centres and public transport routes, and also encourages high standards of urban design which makes a positive contribution to the character of the area. Heritage policies aim to protect buildings, areas, places and streetscapes of heritage significance and to ensure additions and alterations to buildings are sympathetic to the heritage place.

10 The review site has been the subject of a previous application which involved the retention of the existing building and the construction of three, two bedroom dwellings over three levels with a roof top terrace. That proposal was supported by the Council and objectors sought a review of the Council's decision under section 82 of the Planning and Environment Act 1987 (P51965/2001 Paul Harrick & Charles Jamieson v Stonnington CC). The Tribunal upheld the Application for Review and directed that no permit issue.

11 The Tribunal in that case found that the proposal was acceptable having regard to heritage considerations, neighbourhood character, car parking and vehicular/pedestrian access, overshadowing and overlooking. The Tribunal did find however that the proposal's presentation to the adjoining residential development at 38 Charles Street to the south of the review site was unacceptable. The Tribunal said :

..............The dwellings at 1/38 and 2/38 Charles Street have been designed with a northern orientation. Habitable room windows and openings to private terraces at the upper floor level have been punched into the northern wall of the building to allow light penetration, views and an open ambience. Aside from some narrow windows in the western wall, extensive glazing to its terrace provides the primary light source for the dining and living areas, the kitchen and bedrooms 2 and 3 of Dwelling 1. Glazing to its terrace provides the only light source for the dining/living area, the kitchen and bedrooms 2 and 3 of Dwelling 2. Mr Hollow informed me that the responsible authority, in assessing the impact of the proposal on 38 Charles Street, relied on the plans for 38 Charles Street and no physical inspection of that property was conducted. I inspected the interiors and terraces of 1/38 and 2/38 Charles Street on 13/4/02.The ridgeline of the existing building on the subject land is approximately at eye level for persons standing on the terraces of these dwellings. The southern wall of the existing building is well below eye level. There are views of the sky above the wall to the saw tooth roof of the building to the north of the subject site and a more open vista to the northwest above the roof of the existing building on the subject site.

The southern elevation of the proposed development is such that there will be a wall and timber screening at or less than 3 metres from the openings to the terraces and habitable room windows of Dwellings 1 and 2 at 38 Charles Street and some 4.8 metres higher than the height of the southern wall of the existing building. The wall and timber screening will prevent any outlook to the north and it is my opinion that it would result in an unreasonable loss of light and an unreasonable sense of enclosure for the occupants of those dwellings. I have therefore allowed the Application for Review and set aside the decision of the responsible authority.

12 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality and the objector's property at 2/38 Charles Street.

13 Mr Pridgeon submitted that the proposal fails to respond to the concerns raised by the Tribunal in the earlier application and that the impact of the current proposal on the amenity of the adjoining residential properties is no less significant than that previously found to be unacceptable. Mr Pridgeon submitted that the proposed increase in height of the southern wall will have adverse impacts on solar access to the terraces and living areas of the properties to the south and will diminish the open outlook to the north and sense of space and light enjoyed by these properties.

14 Mr Pridgeon also raised concerns about car parking and vehicle movements in the lane separating the review site from the properties to the south. Concern was also expressed about the proposal's response to the neighbourhood character and the significance of the heritage place. It was Mr Pridgeon's submission that any development of the review site ought to be contained generally within the existing building shell in order to achieve an acceptable outcome from an amenity and heritage perspective.

15 While I am not bound by the earlier findings of the Tribunal, they are clearly relevant to my consideration of the merits of the current proposal and it is appropriate that I address the issues which were of concern to the Tribunal in that matter. During the course of the hearing I was provided with copies of the plans which formed part of the earlier application and I think it is very clear that the current proposal is substantially different from that previously considered by the Tribunal. The principal difference between the two proposals relates to the scale and massing of the extensions which in the earlier application extended continuously along 21 metres or 81% of the depth of the review site's interface with the properties to the south. The interface treatment presented as a solid mass comprising a combination of copper cladding panels, dark tinted glass and timber screens, all to a height of between 12 and 10 metres. Although the extension in the current proposal is of a similar height (5 metres above the existing parapet), its mass has been reduced so that it occupies approximately 50% of the review site's depth. Toward the rear of the site, an increase in height of the existing parapet of 2.125 metres is also proposed, but this is separated from the higher extension by a gap of 2 metres. A glass balustrade between the extension and the Charles Street frontage is also proposed to a height of 2 metres above the parapet, but sitting 1.2 metres above the parapet, the effect of which is to further break down the continuity of the built form.

16 It is significant that the Tribunal found that the previous proposal which was significantly more extensive in terms of mass and scale and continuity of solid built forms along the southern interface, was acceptable having regard to heritage considerations, neighbourhood character, car parking and vehicular/pedestrian access, overshadowing and overlooking. In my view the current proposal is superior to the earlier proposal with respect to all of these matters.

17 I am also satisfied that the current proposal appropriately responds to those matters which the Tribunal previously found to be unacceptable. With respect to the issue of solar access to the north facing terraces and habitable rooms in 1/38 and 2/38 Charles Street, I note that the terraces are open to the sky and have a northern orientation, and are separated from the review site by a 3.05 metre wide lane. The interface with the lane and the review site comprises openings in the high, solid brick wall which abuts the lane. Mr Pridgeon conceded that non compliance with the relevant amenity standard of clause 54 (A13) would only arise in the event that the openings in the northern wall could be regarded as north facing windows to a habitable room. In that circumstance, the non compliance with the standard would be of a small magnitude in any event and in my view may meet the relevant objective in this neighbourhood context. The openings do not however constitute north facing windows to a habitable room and both the objective of clause 54.04 - 4 to allow adequate solar access to existing north-facing habitable room windows, and the applicable standard A13 are met by this proposal

18 I am also satisfied that the proposal in its current form will not contribute to a sense of enclosure which could be considered to be unacceptable in this locality. I have described previously the pattern of development and land use in this locality, and I think it needs to be emphasised that this is a very urban environment where buildings typically exhibit high site coverage (often 100%), are usually two or more storeys in height and there is often little separation between them. In this neighbourhood context, I do not regard the proposed extension as excessive in terms of either its height, mass or scale. The proposed extension will clearly have an impact on the amenity of the dwellings at 38 Charles Street, in that it will be visible through the openings in the wall abutting the lane but I do not regard that impact as unacceptable.

19 In arriving at my conclusion I am influenced by the fact that the proposed extension will replace a view of the roof of the industrial building currently occupying the review site, with a modern architect designed structure, and will also partly obscure the view of the higher, unsightly, industrial building immediately to the north of the review site. It is also significant that while the outlook from the terraces at 38 Charles Street will change as a consequence of the construction of the proposed extension, an outlook to the north, east and west will continue to be available.

20 Mr Pridgeon's submission that any development of the review site ought to be contained with the existing shell of the building cannot be sustained. I have previously outlined the zone and policy provisions of the Stonnington Planning Scheme which give encouragement to the development and redevelopment of sites in localities such as this which are within or close to Activity Centres. There is nothing in the planning scheme which would persuade me that this is a locality in which on-going redevelopment and refurbishment of older building stock is anything but positively encouraged. The application of a heritage overlay does impose a constraint on the demolition, extension and redevelopment of existing buildings in that permits are required to carry out such works and it must be demonstrated prior to the grant of a permit that a proposal appropriately responds to the significance of the heritage place. The application of the heritage overlay does not impose a requirement that all such works must be carried out within the shell of existing buildings.

21 I have indicated above that I regard the current proposal as being superior to the earlier application in heritage terms and I also note that the Council's heritage adviser expressed the view that the general mass of the proposal will have minimal impacts on Charles Street and will be concealed from much of Doon Street. Concern was expressed however about the choice of cladding (copper) along the southern lane which will be visible from various vantage points within the heritage overlay area and a preference was expressed for a more understated external expression consistent with the valued building stock in the area.

22 I agree with that assessment of the proposal's response to the significance of the heritage place. I have imposed a condition requiring materials to be amended to the Council's satisfaction.

23 The decision of the responsible authority is affirmed and it is directed that a permit issue in accordance with the attached order.

Environment Act 1987

Harick v Stonnington CC [2004] VCAT 1065

At a glance

Court

Decision date

Source

Judgment (68 paragraphs)

Harick v Stonnington CC [2004] VCAT 1065 (31 May 2004)

Parties

Legislation Cited (1)