Hawthorn3122 Pty Ltd v Boroondara CC & Ors [2012] VCAT 196

1. The name of the permit applicant and applicant for review is changed from Urbaniste Town Planning Consultants Pty Ltd to Hawthorn3122 Pty Ltd.
2. Nineteen drawings (TP00 to TP18 - all Marked VCAT Revision and dated 19.12.2011) circulated to parties are substituted for the application plans.
3. The decision of the Responsible Authority is affirmed.[1] In permit application PP11/00248 no permit is granted.

Mr John Cicero, Solicitor of Best Hooper Solicitors. He called written and oral evidence from:

• Mr David Crowder, Town Planner of Ratio Consultants Pty Ltd.
• Mr Craig Czarny, Urban Designer and Landscape Architect of Hansen Partnership Pty Ltd.
• Mr Damien Hancox, Traffic Engineer of TTM Consulting (Vic) Pty Ltd.

Mr Andrew Clarke, Town Planning Consultant for Elizabeth Daniel; Richard Nunn; Kenneth & Joan Tomholt; Maryanne & Luan Lu; Sophia Stavropoulos; Thomas, Benjamin & Teresa Juzwin; Hugh Crosthwaite; Evelyn Tadros; Alistair Cossar (Mr Clarke provided a list of people he represented including Carolyn Olsen, Margaret & Paul Nieuwenhuizen, and Geoff & Frances Ogge who had not previously lodged statements of grounds).

Construction of a four storey building containing 24 dwellings over basement parking with 25 car spaces.

Cl. 32.01-4 (construct two or more dwellings on a lot in R1Z).

Cl. 52.06 (reduction in on-site car parking requirements).

The review site is located on the south eastern corner of Barkers Road and Findon Street. A 3.5 metre wide laneway abuts the southern boundary and provides a link between Findon Street and Little Church Street/Church Street to the east. The site is rectangular in shape, has an area of 848m2 and contains a single storey brick dwelling with a pitched roof. The surrounding area is residential. A two storey block of 60's style flats is located to the east, a group of three, two storey townhouses to the south of the laneway and an historic dwelling to the west on the opposite side of Findon Street. Further to the south are a mixture of single storey period dwellings and 2, 3 and 4 storey townhouse and apartment style buildings.

Barkers Road is a major east-west arterial road and contains tram lines, including tram stops almost directly outside the site.

1. Although Council failed to make a decision within the prescribed time, it has since decided to oppose the proposal as shown on the substituted plans for reasons summarised as:
   1. The site is not suited to the scale and density of housing and the height and scale of the development is excessive, detrimental to the character of the neighbourhood and is an overdevelopment of the land.
   2. The design and external appearance is too complex and over articulated; inadequate detail about front fencing.
   3. It will dominate and detract from the heritage place to the west.
   4. It will have a detrimental impact on the amenity of adjoining residents through visual bulk and overshadowing and will allow overlooking into the secluded open space of the property to the south.
   5. Poor internal amenity to open space areas in apartments 3, 4, 5, 10, 14, 20 and 23.
   6. The extent of hard surfaces is excessive and there are limited meaningful landscaping opportunities and space for screen planting.
   7. The basement car park is poorly laid out and designed, and vehicle access is unsafe and inefficient.
   8. Insufficient conveniently accessible visitor bicycle parking.
2. Nearby property owners also oppose the proposed development for similar reasons to those raised by Council, including strategic policy context, character, height, boundary setbacks, site coverage and landscaping opportunities, adverse amenity impacts to neighbours, inadequate parking and access and poor internal amenity. Mr Clarke made comment on these matters in his written and oral submissions.
3. Mr Cicero rejected these criticisms and submitted that the development was appropriate given the strategic support in the Planning Scheme for development of such large sites. In addition, he submitted that its location on a main road corridor, on the Principal Public Transport Network (PPTN), close to a Neighbourhood Activity Centre, within an established residential area, and on land zoned Residential 1 without any overlays, all support a development of the scale proposed in this application.

1. Having regard to submissions and evidence I consider that the key issues are as follows:
   1. Does the Residential 1 Zone and relevant policy support redevelopment of this site with a building of the form and scale proposed?
   2. Does the new building represent an acceptable response to its site context and to neighbourhood character, and are there any unacceptable external and internal amenity impacts?
   3. Are the car parking and vehicle access arrangements acceptable?
2. I now address each of these in turn.

Does the Residential 1 Zone and relevant policy support redevelopment of this site with a building of the form and scale proposed?

1. The Planning Scheme recognises and gives support for an intensification of development on well serviced sites in good proximity to a full range of urban services, including public transport routes, schools, recreation centres, parkland, employment centres, shops, community facilities and the like. Although not within the Neighbourhood Activity Centre to the east along Church Street, the site is located in a fully serviced and well established residential area. It is within walking distance of the activities located in Church Street, and within walking distance (or a short tram ride) of Victoria Gardens to the west and Kew Junction to the north east. The tram routes along Barkers Road and Church Street provide access to the city and suburbs such as Richmond, Box Hill and Balwyn.
2. The area is not affected by any design, neighbourhood character, landscape or heritage overlays aimed at recognising valued local character or providing particular guidelines or controls over new development. However, Clause 22.07 of the Planning Scheme includes a neighbourhood character policy based on the findings of the City of Boroondara Urban Character Study 1996 and associated documents listed at Clause 22.07-4. The review site is within Area 66. The study is now over 15 years old and I agree with Mr Clarke that not a lot really turns on it and that it is more a statement of what existed when the study was undertaken. The built form has changed since that time and the double storey dwellings to the south of the laneway and on the corner of Pine Street are examples of more recent medium density development in the area.
3. In a recent decision in Riversdale Road[2], Member Gray and I commented about development along tram routes in Boroondara in the following way:

[5] ...While there can be debate about whether new buildings should be 3, 4, 5 or more storeys, any suggestion that new buildings could be two storeys (or two or three storeys as suggested by Mr Daniel) neither acknowledges the extent of medium density development that has been built in the area nor the clear directions set out in the Boroondara Planning Scheme. This is not a remote outer suburban area where one and two storey dwellings are the norm and where policy does not specifically encourage more intensive built form. Although the multiple ownership arrangements in the existing one and two storey medium density developments in this section of Riversdale Road make redevelopment a more complex process than sites with single ownership, we suspect that even those sites will, in the future, attract proposals for higher and more intensive buildings. The history of urban development is a tale of constant renewal and, perhaps with the exception of outstanding historic sites, one that almost inevitably involves an intensification of built form and activity.

[6] This is not a low scale, suburban streetscape where one or two storey houses are the norm. Taller, more imposing buildings have for a long time formed part of the character of this part of Hawthorn. Although more recent developments are generally higher than those constructed in the past, they have responded both to the site context and planning policy encouraging more intensive development in such locations. They also reflect the intensification or 'upsizing' of built form across Melbourne. Two, three or four storey apartment blocks may have seemed very high when most dwellings in Melbourne were only of one or two storeys, but as dwellings have become larger and taller then so too have apartment buildings. What was once considered tall now appears quite ordinary in terms of height. That applies to this section of Riversdale Road where the one and two storey villa unit and apartment style buildings seem very low compared to the newer buildings along both sides of the street.

[12] There is no question in our minds that buildings of 4 or more storeys will become increasingly commonplace along tram routes across Melbourne. It is also clear that such buildings will look different and be taller than most of the older buildings along the tram routes and they will be more visible. Provided the off-site impacts are managed having regard to what the Planning Scheme suggests is 'acceptable' then there is no justification to refuse such proposals simply because they are one, two or more storeys higher than existing buildings.

1. Although this section of Barkers Road has not experienced the same extent of redevelopment as the area along Riversdale Road referred to in the decision above, policy encourages taller and more intensive built form along main roads, along the PPTN and close to or within activity centres. Although this section of Barkers Road largely contains single storey dwellings, with relatively few two storey dwellings, the residential area to the south does contain taller, more imposing buildings. While the proposed building may be the first modern, taller, apartment style building in this section of Barkers Road, that alone does not justify its rejection.
2. In principle, I consider there is considerable policy support for a taller, more intensive residential development on the review site. However, despite that broad policy support and the many positive locational attributes of the site, I am not persuaded that a building of the particular form and scale proposed is an acceptable response to the site context. For the reasons I now discuss, I am not persuaded that the design is one that warrants support.

Does the new building represent an acceptable response to its site context and to neighbourhood character, and are there any unacceptable external and internal amenity impacts?

1. Nearly all of the flaws with the proposed building arise because of the excessively large footprint and the pushing out of the built form to site boundaries, particularly to the eastern and western boundaries. In referring to building footprint I do not want to engage in a long discussion about what represents site coverage although there is a difference between the area of land covered by building (for example the area occupied by a basement) and the extent of visible built form above ground level. It seems obvious that the extent of land coverage by a basement has an impact on the space available for water percolation and the extent of in-ground landscaping, but in assessing the impact of building bulk and scale, it is the built form above ground level that is the critical factor. Although Mr Clarke's written submission made reference to site coverage of approximately 85%, in his right of reply he agreed with Mr Cicero that assessment of site coverage is all about visual impact. In this instance the above ground coverage is approximately 60%, which is not excessively high for a development of this type.
2. It is therefore the built form above ground level which has caused me greatest concern. Along the eastern boundary the setbacks are zero, 1 metre or 2.55 metres. Along the western boundary to Findon Street they are either 2.1 or 3 metres. The front setback to Barkers Road is 5.4 metres nearest Findon Street and increases to 7 metres towards the adjoining apartments at No 40 Barkers Road. The southern setbacks vary from 2.1 to 6.2 metres. I now discuss each of these boundaries and various built form and amenity impacts.

1. Along the street frontages, the building has adopted what Mr Czarny describes as a defined 3 storey profile to each public interface with a recessed top level ...a robust 3 storey form to Barkers Road and a more open permeable form to the southern half of the site. I do not disagree with his description of the Barkers Road appearance but I consider that the description applies equally to the Findon Street frontage where, aside from a stepping back from 2 metres at the northern end to 3 metres at the southern end, the building rises for 3 storeys with articulation largely provided by recessed balconies and entrance way. I consider that the much smaller setbacks along Findon Street compared to Barkers Road, together with the much longer expanse of wall of 34 metres compared to 16 metres along Barkers Road, combine to create a very 'robust' built form similar to that along Barkers Road.
2. While the Barkers Road built from is generally acceptable given its main road frontage, larger setbacks and space for in-ground taller landscaping, I consider that the built form to Findon Street is unacceptable. It is also a built form that cannot be softened to any great extent by taller landscaping because of the necessity to provide secluded open space for the ground level dwellings. I agree with Mr Clarke that the 900mm width of these spaces is inadequate. As discussed at the hearing, the 1.2 metres wide landscaping strip behind the tall fence along the street frontage could be narrowed to provide a wider secluded paved area, but it serves to reinforce my concern (and that of others) that the building has been pushed too close to Findon Street.
3. As I discuss in the next section, Mr Clarke suggested that the setbacks from the eastern boundary could be increased by combining the eastern group of 4 dwellings in to two by reorientating them in a north-south direction. Although Mr Czarny did not agree with that suggestion when asked about it by Mr Clarke during cross examination, I consider that such a reorientation on both the eastern and western sides of the building, along with increased setbacks, would transform this building and how it is viewed within its site context. While it may not be as simple a solution as the redesign I have suggested above, additional setbacks from Findon Street would overcome the sense of visual bulk created by the 'robust' 3 storey built form, provide more useable and useful secluded open space for residents, and allow more width for taller filtering landscaping along the Findon Street frontage.

1. The eastern side of the building does not have the 'robust' 3 storey built form evident along the two street frontages. It is the only part of the site that has a direct abuttal to residences, in the form of a two storey block of apartments at No 40 Barkers Road. Those apartments are perhaps typical of the period with no secluded outdoor open spaces. The building is orientated north-south along the lot and positioned close to the eastern boundary. Each dwelling is orientated with east and west facing windows, except that the front two dwellings also have windows facing north towards Barkers Road. The only outdoor space is to non secluded west facing decks/balconies which look out over a concrete driveway and parking area located between the building and the boundary with the review site. The driveway is open to Barkers Road and to the laneway at the rear, and provides one-way car movement through the site.
2. Along this eastern boundary, the proposed building has a stepped profile with the first floor setback 2 and 2.5 metres, the second floor setback 3 metres and the third (top) floor setback 4 metres except for a protruding staircase. In considering the visual and amenity impacts along this boundary, I have had regard to the B17 standard in ResCode. Although the B17 ResCode setback envelope does not apply because the building is over 3 storeys in height, the use of ResCode standards does provide a useful guide as to how well a building sits within its site context and was used by all three planners in this case. I found Mr Crowder's setback diagrams particularly useful in assessing impacts on the neighbouring dwellings. I would make the perhaps obvious point that an assessment against ResCode standards is of more relevance for a building just one or two storeys above the 3 storey ResCode threshold than a 30+ storey residential skyscraper in Southbank or Docklands.
3. Mr Crowder's working diagrams indicate that compliance with the B17 setback envelope depends on where the base of the envelop is positioned. If it is positioned at the edge of the decks/balconies then there is very easy compliance. If it is positioned at the line between the driveway and parallel car spaces then there is easy compliance except for the top level. If it is positioned at the property boundary then part of second and all of the top floors are non compliant. Although the driveway and parking area are not secluded open space areas, they do form part of the amenity and outlook of these small apartment dwellings.
4. If the issue was simply about the B17 envelope and whether and how it should be used as a guide for this 4 storey building, then the setbacks as now proposed are acceptable. However there is a more basic problem with the setbacks which is similar and yet different to the problem with setbacks along the western boundary. It is that insufficient space has been allowed for secluded open space and landscaping. It particularly affects Units 6 and 7 where the secluded open space includes a landscaping strip 1 metre wide with the result that the paved area behind the landscaping is just 1.5 metres wide. These spaces also abut the concrete paved parking area next door where there are no opportunities for landscaping. I also note that the two areas of open space for Units 6 and 7 have three storey high walls on three sides. The landscape planting along the eastern side boundary includes Lily Pilly trees that have a potential height of 3.5 metres. While trees of this height will help filter the building when viewed from the east, they also have the potential to create poor amenity for these narrow and enclosed secluded open space areas fro Units 6 and 7.
5. A similar, although potentially worse problem arises for those bedrooms in Units 5 and 8 which only have east facing windows. Those windows face the 1 metre wide landscaping strip where the same type of Lilly Pilly trees are to be planted. While these may help screen the windows from viewing next door they also have the potential to block light to these rooms. I consider that the setbacks along this boundary need to be increased so as to provide more useable and useful secluded open space for residents and allow more width for taller filtering landscaping between these two residential sites.
6. A related issue concerns the potential for overlooking and overshadowing. I accept that overlooking has been dealt with adequately, or could be conditioned if there were areas of overlooking within 9 metres of habitable room windows or secluded private open space.
7. Overshadowing was a point of discussion at the hearing where I expressed concern about the extent of mid afternoon overshadowing to the decks and balconies to the east. As previously noted, these dwellings all have their decks/balconies facing west towards the review site and although open to public view, they represent the only outdoor private spaces for these dwellings. The shadow diagrams indicate that from approximately 2.30pm at the equinox these spaces will be shadowed by the proposed development. However, the ResCode standard (B21) only applies to secluded private open space and is therefore not a relevant test given the non-secluded nature of these decks and balconies. Although I would not require changes to the proposed building because of the small amount of shadowing after approximately 2.30pm, and the non-secluded nature of these decks and balconies, my refusal of this application and the necessity for greater setbacks should lessen any shadowing impacts.

1. The setback from the southern boundary along the laneway is 4.5 metres but it includes the ramp to the basement and the secluded open space for Unit 5. The building above the ramp (first floor) cantilevers to within 2.1 metres of the laneway The second floor is setback 3.7 metres and the third (top) floor is setback 6.2 metres. Although this part of the building is north of the dwellings on the southern side of the laneway, and hence has potential to create overshadowing, I am satisfied that when measured at the equinox the building does not create any unreasonable overshadowing, Although the B17 ResCode setback envelope does not apply because the building is over 3 storeys in height, I do note that there are minor areas of non-compliance if the base of the envelope is positioned on the southern boundary of the review site but that if the envelope is positioned on the southern side of the laneway (a scenario contemplated in the decision guidelines to standard B17) then there is easy compliance with the envelope. Subject to the provision of additional articulation or highlight windows, I would not reject the proposal because of its presentation along the southern boundary.

1. I have not specifically commented about height and whether four storeys is acceptable or achievable on this site. In principle I do not reject a four storey building although the additional boundary setbacks starting at ground level but flowing through to the rest of the building may result in a much smaller or non existent fourth storey. Although Mr Cicero made reference in his submission to this being a large site, that is a relative concept. At 848 square metres it may be large by inner metropolitan standards but it is not particularly large compared to many sites in this part of Melbourne. For example, the previously cited 4 storey, 27 dwelling SPEC Property Developments proposal was on a site of 1,395 square metres in area. The other case cited by Mr Cicero for a 4 storey building containing 41 dwellings at 454-456 Barkers Road was on a site with an area of 2,431 square metres.[3]
2. One of Council's criticisms concerned the poor amenity for units with south facing balconies. I have recently considered a proposal for a 6 storey building in Brunswick West. Although I refused the proposal, it was not for reasons of internal amenity, which was very high for all apartments. In that case the building had a central atrium but importantly none of the apartments had south facing balconies. A redesign of this building may well enable a similar outcome.

Are the car parking and vehicle access arrangements acceptable?

1. Council and residents raised concerns about traffic generation and access arrangements and noted that at certain times of the day traffic and parking around the review site can be quite congested, particularly in Findon Street by what appear to be commuters catching trams from the nearby stops in Barkers Road.
2. A total of 25 car spaces are provided in the basement car park of which all are available for the dwellings and none for visitors. There is therefore a waiver required for visitor spaces. While I accept that on-street parking near the site varies during the day, with high usage during the weekdays and little usage at night, I am not convinced that there is justification for waiving visitor parking. Although the site is on the PPTN it is not within or next to a principal or major activity centre where lower parking rates are now being accepted. Despite the permit applicant's experience with another recently completed development in the vicinity of Belmore Road, I am not convinced that visitor parking will be unused or underutilised in this location. In this case I consider that there should, as a minimum, be full compliance with ResCode car parking rates for both residents and visitors.
3. Council's traffic engineers did not support the proposal and made a number of detailed criticisms about the design and layout of the crossover, the ramp and the basement. The location of the basement ramp adjacent to the laneway was a particular issue raised by Mr Clarke. He submitted that the ramp should be separated from the laneway in accordance with the relevant Australia Standard.
4. Mr Hancox was called to give evidence about car parking and traffic related issues and a number of these criticisms about layout and access were discussed with him, along with the reliance on car stacker units and on street visitor parking.
5. While the substituted plans include some changes to the basement car park, I do not accept that the layout of the basement car park (including ramp grades) should be approved without further changes. However my refusal of this proposal will allow parking and traffic issues to be revisited, including the location and grades of the basement ramp.

1. For all of the above reasons I will direct that no permit is to issue.

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

[2] SPEC Property Developments Pty Ltd v Boroondara CC [2010] VCAT 1369

[3] PE & Associates Pty Ltd v Boroondara CC & Ors [2011] VCAT 1717