Hogan Carrum Property Pty Ltd v Stonnington CC & Ors

Hogan Carrum Property Pty Ltd v Stonnington CC & Ors - [2013] VCAT 16 - VCAT 2013 case summary — Zoe

[36]

At the statewide level there are three key objectives that underpin housing policies - diversity, urban consolidation, and affordability. There is a particular emphasis on the provision of increased housing densities in established urban areas utilising existing urban infrastructure and on sites in close proximity to activity centres and public transport.[1]
In the present case, the site is located approximately 500m from the edge of the Chadstone Principal Activity Centre.
The site's location relative to this large centre generated considerable debate at the hearing. While there was general agreement that the site is suited to some form of medium density housing, the Council and objectors submitted that this proposal is too distant from this centre to warrant a residential development of this intensity, scale and design.
Mr Song referred me to the Council's local policy framework in support of these arguments, in particular the Strategic Framework Plan and locational policies which direct higher density development and buildings that are greater than two-storeys to particular areas. These areas shown on the Strategic Framework Plan are identified at Clause 21.02 and comprise sites which are:
- on a main road (that is, fronting a Road Zone Category 1);
- in Principal Activity Centres;
- identified gateway localities and large sites.
The review site is not designated on the Strategic Framework Plan as having any of these characteristics.
Nor, in the Council's submission, is the site said to be one where housing diversity policies apply under Clause 21.03, as the site is not:
- in an activity centre as part of new development and shop tops;
- in a mixed use area;
- a large redevelopment site where the infrastructure capacity can be optimised;
- an arterial road where a high proportion of medium density housing already exists.
Although this site is not one which is discretely identified for housing development of this scale and intensity under the local planning policy framework, this is not a sufficient reason to reject this proposal. I consider that the site is one that in strategic terms is suitable for this proposal and in so doing is consistent with the broad intent of housing diversity and urban consolidation policies.
The applicant's case relied heavily on statewide policies that promote the more efficient use of land in established urban areas and in particular large residential development on strategic redevelopment sites. The attributes of strategic redevelopment sites are described at Clause 16.01-3 and are as follows:
- In and around Central Activities Districts.
- In or within easy walking distance of Principal or Major Activity Centres.
- In or beside Neighbourhood Activity Centres that are served by public transport.
- On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
- In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
- Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.
It was Ms Heggen's evidence that the site qualifies as a strategic redevelopment site, being within easy walking distance of a Principal Activity Centre which has a bus interchange servicing approximately ten routes and because of the site's ability to accommodate more than ten dwellings.
In terms of walking distance, the site is within about 750m of the bus interchange and is a similar distance from the nearest entry to the centre itself.
While greater than the often referred to 400m or 5 minute benchmark for easy walking distance, I regard these distances as being reasonable and achievable for most people within about 8 minutes.
I accept that the site has some of the hallmarks of a strategic redevelopment site, given its ability to accommodate 10 or more dwellings and its proximity to a Principal Activity Centre and bus interchange. However, I consider that the magnitude of the distances involved and the limited nature of readily accessible public transport options on foot[2] render this site as one that does not score highly as a strategic redevelopment site. I also observe that the site is visually isolated from buildings in the Chadstone activity centre whose sphere of influence in a built form sense is limited. Moreover, this site is within a mid-block location where single storey development prevails and its overall dimensions, while large at more than 1500sq.m, is comparable to just two typical sized lots[3] in this particular locale.
These factors are by no means fatal to this proposal. They simply serve to demonstrate that ultimately, a site by site assessment with reference to the physical and planning context remains an important consideration in determining what is an acceptable outcome. As the Tribunal commented in Common Equity Housing[4] this will result in "different responses in different settings". For example, a 6-storey proposal for 60 dwellings on a 1500sq.m lot in an inner city location within 400m of a tram and train route and major activity centre may be acceptable in that location but in the particular context of Carrum Street and the existing strategic framework it is unlikely to succeed here.
It is against this backdrop that I have assessed this proposal. In doing so, I acknowledge that this development will be more intense and overtly different to existing housing forms and styles nearby.
Nonetheless, with some minor modifications, I consider that this 3-storey proposal strikes an acceptable balance between its more immediate and broader physical and planning contexts in a way that is respectful of its surrounds while creating limited off-site impacts.
I now turn to a detailed assessment of the design response explaining more fully my reasons for these findings.

[40]

As there is no statement of preferred character expressed for this area, it is the existing character of the area to which this proposal must respond.
I agree with Ms Heggen's evidence that the area is characterised by a diverse range of building types and styles, including the highly modified Victorian era dwelling on the review site, some interwar Californian bungalows, post-war dwellings comprising modest single cream brick dwellings from the 1950's, 'six-pack' style flats from the 1960's, villa units from the 1970's and larger two-storey town houses and single dwellings from more recent decades.
The quantity and type of vegetation is also variable and includes garden settings with mature trees that screen dwellings from the street (such as No. 10 Carrum Street) to some very open front gardens with large amounts of paving or low level planting.
The backyard character is similarly variable, with the size, dimensions, outlook and vegetation cover within and surrounding the properties I visited during my inspection generally differing from site to site. It is apparent however, that neighbouring properties, particular those to the east, derive considerable benefit from the unusually large backyard of the review site with its established gardens and perimeter planting. This creates the impression of a pleasant verdant backdrop devoid of built form. Given the somewhat anomalous nature of the review site, its redevelopment will bring about a noticeable change to the existing backyard character. On one view, the amenity enjoyed by neighbouring properties arising from the review site's atypical characteristics is somewhat fortuitous and not one that can be reasonably maintained in perpetuity. Nonetheless, the key question remains whether the proposal is an acceptable one.
Assisted by my inspection, I will refer to each of the building's interfaces in my assessment of this proposal.
Before doing so, I find that overall, the design of the building is well resolved and of a high architectural standard. That is consistent with urban design policies in the Stonnington planning scheme.[5] It is also a consideration which weighs heavily in favour of this proposal.

[41]

I agree with Mr Song that the central break between the northern and southern arm will have a limited effect on oblique views, but nonetheless, the varied setbacks and different architectural handling of these two arms will create a varied an interesting addition to the street.
Although the building will, at three storeys, be higher than its immediately abutting neighbours, there are numerous examples of larger scaled buildings in Carrum Street that, while two-storeys are either comparable in overall height to this proposal or which have a very strong visual presence, by virtue of their mass, volume and architectural presentation.
These include the single dwellings at No.'s 26 and 27 Carrum Street and the large rectilinear forms of the flats at No.'s 5 and 25 Carrum Street and the recent double storey townhouses at No. 8 Carrum Street.
Given this varied built form context, I am satisfied that this 3-storey building can be comfortably absorbed into the streetscape. In saying this, I note that the third level will be visible in Carrum Street, but I consider that it will not present as an unduly dominant element given the setback and design of this level. I have also taken into account the presence of the large street tree in front of the site which will soften and partially screen the development.
In relation to front setbacks, to fully comply with the numeric ResCode standard B6, a front setback of 7.45m is required. Proposed setbacks from the irregularly aligned frontage range from 3m to approximately 9.5m at the first two levels with the third level further recessed. The closest element is Unit 10's shade 'hood' which partially overhangs Unit 1's ground level courtyard.
Although open to the street, I consider that the 3m setback to this otherwise walled element on the second level would have an unreasonably dominating visual impact in the street. This is particularly so when viewed obliquely from the south.
I will require this to be setback a further 1.5m from the street through a reduction in the internal floor area so that it has a minimum setback of 4.5m. In doing so, I consider that it is important to maintain some visual differentiation between the second and first level of the building. I will therefore require Unit 1 to be further setback not less than 0.8m from the street, so as to have a minimum front setback of 5.3m.
With these modifications to front setbacks, I find that the building will transition in an acceptable way to its neighbours.
I will also require the installation of a tree in the garden bed between the front entry stairs (adjacent to the landing) and the driveway. While Ms Dowey suggested planting a Crepe myrtle in this location, I consider it preferable for a taller growing species with denser foliage, such as the evergreen Magnolia Grandiflora "Exmouth" or a suitable Ornamental pear (Pyrus) species which although deciduous is noted for its longer leaf retention.
A further minor modification that I will require involves the provision of a garden bed in place of the paved splay on the south side of the driveway at the front boundary. Low level planting such as ground covers or ornamental grasses should be used in this location so as not to obstruct pedestrian sight lines.
I am otherwise satisfied with the development's presentation to the street including landscaping arrangements subject to the modifications I have outlined.

[43]

There are two abutting properties to the north - No.'s 18 and 20 Camira Street - whose owners are parties to this proceeding.
Both properties and their dwellings are elevated above the review site. In the case of No. 20 Camira Street, the dwelling is situated on an upper terrace, surrounded by shrub and tree planting with a limited outlook to the review site. Existing and proposed vegetation would soften and partially screen views of the north elevation from the lower level area of open space. I find that the proposal would not be unreasonably intrusive from this property.
I am however concerned about the visual impact of the development, primarily the third level, when viewed from the rear of No. 18 Camira Street. This neighbouring dwelling is elevated about 1m above ground level and enjoys an expansive outlook towards the review site from the backyard and habitable room windows including the meals and kitchen. I regard this as the most sensitive interface.
While ground level setbacks will allow a reasonable degree of tree planting to occur at this interface, I consider that Unit 22 on the third level would be quite exposed and unreasonably intrusive on its east side. I will therefore require the setback of this dwelling to be increased to align with the central recess at a distance of 10.8m. An internal redesign of this unit and those surrounding it will be necessary. This may result in the loss of one unit or alternatively changes in the number of bedrooms, or both. As many suitable options are possible, I will not specify how this is to occur other than to require no reduction in boundary setbacks, the provision of screening techniques described under Standard B22 at Clause 55.04-6, private open space that accords with Standard B11 at Clause 55.03-6 and the standard number of car parking spaces for the resulting dwelling types specified at Clause 52.06 of the Planning Scheme.
Mr Mead expressed misgivings about the proposed removal of the Giant Bird of Paradise in the north-east corner of the review site. I agree that the removal of this vegetation is unfortunate but I accept Ms Dowey's evidence that a better landscape outcome will be achieved by its removal and replacement with new vegetation which will comprise a Chinese Elm at a height of 2m at the time of planting and which reaches a height of 10m at maturity, two Crepe Myrtles and a Magnolia Grandiflora (Exmouth).

[44]

The dwelling at No. 10 Carrum Street has its long axis adjacent to the northern boundary with a side setback that varies from 1.2m to 2.1m. Rooms with windows on this side include two bathrooms which also have skylights, a bedroom, study, kitchen and living room.
I acknowledge that the development will be partially visible from these windows. However, the proximity of this neighbouring dwelling to the common boundary will limit the degree to which the south elevation is exposed. The well-articulated form of the building and the proposed setbacks which range from 3.1m to 4.8m at ground level and except for two cantilevered balconies progressively increase over the next two levels, lead me to conclude that any visible built form above the new 1.8m boundary fence will not be unreasonably intrusive. New vegetation proposed along this side of the building will also create an improved green edge and assist in softening the building.
In relation to the backyard interface, I consider that while the development will be visible from oblique views in a north-westerly direction, I find that such impacts would be acceptable. In addition to the well-mannered side boundary setbacks, degree of building articulation and landscaping opportunities mentioned above, I have also taken into account:
- the configuration of the dwelling and the lot itself at No. 10 Carrum Street whose orientation does not lend itself to a highly exposed outlook towards the review site;
- the location of the covered outdoor dining area on the south side of the dwelling removed from the review site;
- the proposed footprint of the building which extends to approximately the same distance as the rear of the dwelling at No. 10 Carrum Street except for balconies which extend further east.
The final issue at this interface concerns the appearance of the two-storey blank wall on the south side of Units 9 and 19. I agree with Mr Song's submission that this element will have a visually bulky presentation.
I note that greening of this 2-storey wall is proposed by training Chinese Star Jasmine to a tensile wire trellis. While this has the potential to be an attractive feature, its success, particularly at the more highly exposed second level, is highly dependent upon a good maintenance regime in perpetuity, best managed via the Owner's Corporation. Given that this element is within the secluded private open space of Unit 9, I think the preferable outcome in the circumstances is to provide additional architectural articulation instead of or in addition to a modified green wall treatment. Thus, I will require the installation of an additional window to Unit 19's bedroom 1 with a design and dimensions identical to that used in bedroom 2, including obscure glass to the lower pane. I acknowledge that this may necessitate some internal modifications to this dwelling, or alternatively a 'false' window could be installed and the wardrobe retained in its current location.

[60]

Before the development starts, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans prepared by Orbit Architecture, Job No. A12006 dated 8 October 2012, Ref: TP001, TP101, TP102, TP111, TP121, TP122, TP131, TP211, TP221 to 224 inclusive, TP241, TP 301, TP302, TP401, TP721, TP811, TP814, TP817 and the landscape plan prepared by John Patrick Pty Ltd dated October 2012 but modified to show:
- (a) Unit 10's shade 'hood' which partially overhangs Unit 1's ground level courtyard setback a further 1.5m from the front boundary so as to have a minimum front setback of 4.5m, through a reduction in the floor area of this dwelling.
- (b) Unit 1 setback by at least a further 0.8m from the front boundary, so as to have a minimum front setback of 5.3m through a reduction in the floor area of this dwelling.
- (c) Provision of a tree in the garden bed between the front entry stairs (adjacent to the landing) and the driveway with a semi-advanced species having dense foliage, capable of growing to a minimum height of 8m at maturity such as the evergreen Magnolia Grandiflora "Exmouth" or a suitable ornamental pear (Pyrus) species.
- (d) Provision of a garden bed in place of the paved splay on the south side of the driveway at the front boundary. Low level planting such as ground covers or ornamental grasses are to be used in this location so as not to obstruct sight lines.
- (e) Unit 2's setback increased to align with the central recess at a distance of 10.8m from the east boundary. Consequential internal modifications are to be shown. Modifications to affected dwellings must be undertaken so as to meet the following:
  - (i) no reduction in boundary setbacks,
  - (ii) balconies and windows are to be screened in accordance with Standard B22 at Clause 55.04-6 of the Planning Scheme,
  - (iii) private open space is to accord with Standard B11 at Clause 55.03-6 of the Planning Scheme, and
  - (iv) the standard number of car parking spaces for the resulting dwelling types specified at Clause 52.06 of the Planning Scheme.
- (f) The provision of an additional window to the south wall of Unit 19's bedroom 1, identical in design and dimensions to that used in bedroom 2, including obscure glass to the lower pane. Any internal modifications to this dwelling are to be shown, or alternatively a 'false' window could be installed and the wardrobe retained in its current location. The wire tensile lattice and associated creeper may, if desired, be modified or deleted.
- (g) The make and model of the mechanical car stacker system, with required dimensions and operating system clearly shown on the plans.
- (h) Dimensions of the vehicle crossover to the satisfaction of the Responsible Authority.
- (i) The southern perimeter of the deck outside Unit 24 screened in accordance with the screening requirements of Standard B22 at Clause 55.04-6 of the Planning Scheme.
- (j) A full schedule of external materials and colours including the provision of samples, to the satisfaction of the Responsible Authority.
- (k) Any changes as required by condition 13.
The development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.
Prior to the occupation of any dwelling, the landscaping works as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
Before the development (including excavation and demolition) starts, a tree protection fence must be erected around the Lophostemon confertus (Queensland Brushbox) street tree in front of the site. Fencing must be 1.8m high, be of steel mesh construction, run from kerb to footpath, and 2m either side of the tree stem. The tree protection fence must remain in place until all construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority
During construction any new service to the existing gas meter in front of the property must not be open trenched within the Structural Root Zone of the significant tree and should be bored at a minimum depth of 600 mm below surface to the satisfaction of the Responsible Authority.
Prior to the endorsement of plans under Condition 1, a parking management plan must be prepared and submitted to the satisfaction of the Responsible Authority for approval. When approved, the parking management plan will be endorsed to form part of the permit. The parking management plan must not be amended without the further written consent of the Responsible Authority and must provide:
- (a) The allocation of car spaces to each dwelling and for visitors in accordance with the rates set out in Clause 52.06 of the Planning Scheme;
- (b) Details of proposed signage to indicate the above allocation of parking spaces;
- (c) Details of car park control equipment which must show the location of any intercom or other security device at the entry and method of accessing the basement by visitors, to the satisfaction of the Responsible Authority;
- (d) Details of an induction program carried out by suitably trained persons which will be given to each new resident allocated a mechanical car space. Such induction is to demonstrate the features of the system, including method of its safe operation and is to be provided on an on-going basis.

[62]

Prior to commencement of works, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:
- (a) Dimensions of waste areas.
- (b) The number of bins to be provided.
- (c) Method of waste and recyclables collection.
- (d) Hours of waste and recyclables collection to correspond with Local laws.
- (e) Details of bin transfer arrangements to and from the basement to kerbside before and after waste collection.
- (f) Sufficient turning circles and clearance heights for the waste collection vehicles to access waste collection areas.
- (g) Strategies for how the generation of waste and recyclables from the development will be minimised.
A report for the legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
All drainage for the basement must be isolated from the internal drainage system, to the satisfaction of the Responsible Authority.
All plant and equipment (including air-conditioning units) shall be located or screened so as to minimise visibility from any of the surrounding footpaths and from overhead views and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority. Ventilation systems must be designed and installed in accordance with relevant Australian Standards.
Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the application requirements of the draft Stormwater Management (Water Sensitive Urban Design) Policy to the satisfaction of the Responsible Authority.
The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
Prior to the commencement of any site works whatsoever (including demolition and excavation), the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works (including demolition and excavation) are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:
- (a) hours for construction activity;
- (b) measures to control noise, dust, water and sediment laden runoff;
- (c) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows;
- (d) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
- (e) contact details of key construction site staff;
- (f) the location of any site sheds and the like; and
- (g) any other relevant matters.
Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
Prior to the occupation of any dwelling, all screening devices designed to limit overlooking hereby approved must not have more than 25% openings or they must be of solid translucent panels, permanent, fixed and durable and designed and coloured to blend in with the development to the satisfaction of the Reasonable Authority.
This permit will expire if one of the following circumstances applies:
- (a) The development is not started within two years of the date of this permit.
- (b) The development is not completed within four years of the date of this permit.

At a glance

Court

Decision date

Source

Judgment (69 paragraphs)

Hogan Carrum Property Pty Ltd v Stonnington CC & Ors (Correction) [2013] VCAT 16 (4 January 2013)

Parties