OBJECTORS: Coles Supermarkets Australia Pty Ltd

MEDIUM NEUTRAL CITATION: [2003] VCAT 148

1. The Responsible Authority's decision is varied. The Responsible Authority must issue a permit for a four storey building generally in accordance with the permit dated 12 September 2002 but amended in the following ways:

Condition 1(f) is deleted and replaced with the following words:

"(f) The parapet to the front balconies shall be shown as transparent (unless otherwise approved by the Responsible Authority)".

Condition 1(k) is omitted. (Condition 1(l), (m) and (n) are to be renumbered accordingly).

Condition 1 (n) as appearing in the permit dated 12 September 2002 (now referred to as Condition 1(m) is amended to read:

"The windows and walls associated with the development fitted with appropriate acoustic treatments to the satisfaction of the Responsible Authority. In particular, to address potential noise from existing retail activities adjacent to the site (including deliveries, plant and equipment), the acoustic treatments for any dwelling must contain as a minimum:

* 10.38mm laminated glass to all glazing facing Waltham Street, including glass doors to balconies;

* raven acoustic seals to all doors and windows along the south wall and wall facing Waltham Street;

* 75mm acoustic installation to the south wall and wall facing Waltham Street".

Condition 14 is deleted and a new condition 14 is to be inserted to read:

14. Prior to the commencement of development documentation demonstrating that the building has a 4 star energy rating using the Energy Victoria's House Energy Rating Score Sheet must be submitted to the satisfaction of the Responsible Authority".

Ms J Bowdern, Lawyer represented the Responsible Authority.

Mr M Dwyer, Lawyer represented Coles Supermarkets Australia Pty Ltd.

Mr M Naughton, Lawyer represented the Applicant for Review. Mr Naughton called Mr P Borelli, Town Planner as a witness.

1. This is an Application for Review pursuant to s.80 of the Planning and Environment Act 1987 against various conditions imposed by the Bayside Council on a Notice of Decision.

2. At the commencement of the hearing Mr Dwyer on behalf of Coles Supermarkets Australia Pty Ltd advised that his client, the Responsible Authority and the Applicant for Review had come to an agreed position regarding Condition 14 and Condition 1(n) appearing in the Notice of Decision. It was agreed that Condition 14 could be deleted and the original wording to Condition 1 amended to address potential noise from external retail activities. This included additional acoustic treatment for any dwelling in the proposed development and this would obviate the need for a s.173 Agreement requiring notification to purchasers of the subject building. As all parties in the hearing agreed to the revision, I ordered such changes to the permit condition.

3. It was also agreed amongst the parties in the hearing that the Condition 1(k) could more appropriately be written as a separate planning permit condition. This would require documentation demonstrating a 4 star energy rating prior to commencement of the development. Subsequently I ordered the removal of Condition 1(k) and insertion of new wording requiring documentation about the 4 star energy rating to be provided prior to commencement of the development in the vacated Condition No. 14.

4. Following this matter being dealt with Mr Dwyer was excused from any further participation in the review hearing.

5. The sole issue of dispute between the Responsible Authority and the applicant for review relates to Condition 1(f) which essentially requires amending plans to show "the building to have a maximum height of 3 storeys".

6. Application 2002/7292 sought approval to construct a four storey building with eight apartments and one shop. The proposed development involves partial demolition of an existing building and construction of a new four storey building. Five of the apartments will have two bedrooms and three of the apartments will have three bedrooms. There will be a carpark containing ten standard car parking spaces plus three `elevated stacker' spaces, together with pedestrian access to a stairway and lift connecting the car park internally to the apartments. Vehicle access to the site will be via a driveway at the existing crossing into Waltham Street.

7. The subject site is located on the north eastern side of Waltham Street south-east of Abbott Street. The site is irregular in shape with a frontage of Waltham Street of 30.21m, a south-eastern boundary of 17.12m, a north-western boundary of 13.64m and a combined north-eastern boundary of about 30m. Land area is about 455m2. The site currently contains a single storey red brick building formally used for the Sandringham Telephone Exchange. A small section of this building is to be retained as part of the proposed development.

8. The subject land is zoned Business 1 under the Bayside Planning Scheme. The site is also subject to a special building overlay. A permit is required to construct a building and works pursuant to Clause 34.01 of the Bayside Planning Scheme.

9. Other planning controls and policies of relevance are included in the following clauses:

10. The primary issue in dispute derives from the Sandringham Urban Village Policy Clause 22.04-1. The Policy Basis states in part "In response to concern that Sandringham's Population and Business Activity is in a state of decline, Council has developed the Sandringham Urban Village Strategy to promote the concept of self-sustaining communities where living, working, recreating and shopping can all occur within walking distance".

11. The relevant objectives in Clause 22.04-2 are:

* To encourage development of Sandringham Shopping Centre as an active, safe, attractive coastal, commercial, community and housing node.

* To maximise views of the bay and public street areas.

12. Clause 22.04-3 states that "it is policy that":

* Buildings and works complement Sandringham's unique character with sympathetic contemporary design that respects heritage places.

Ø follow the general 2-3 storey height of buildings at the street frontage in the shopping centre;

Ø incorporate attics and setback of upper storeys from the frontage to complement scale of streetscapes;

Ø respect the form and orientation of adjoining buildings.

* In the retail core area, a fourth storey be permitted on corner sites or other sites where the setback of the fourth storey from the street frontage has a minimum visual impact from the ground level.

* Balconies and rooftop courtyards provide views of the street being encouraged in commercial areas.

13. At the review hearing all parties tabled and read from written submissions. The Tribunal undertook an inspection of the site and neighbourhood prior to the review hearing. The Tribunal was provided with an array of information including zoning plans, plans and elevations and graphic representations of the proposed building. At the end of the hearing the Tribunal advised the parties that it would vary the conditions and direct the issuance of a planning permit. It notes that Conditions 1(k) was omitted, Condition 1(n) was varied and Condition 14 was deleted and replaced with a different condition, all of which were done with the consent of all parties.

14. Ms Bowdern on behalf of the Responsible Authority submitted that the Council considered that the proposal was appropriate subject to the reduction in the height of the proposed building to three storeys. She argued that the proposal provided an important opportunity to implement the Sandringham Urban Village Policy, but that Council considered that the proposal is too high. She argued that a building of three storeys is considered to be appropriate from the site and will not detract from the existing streetscape and neighbourhood character. She advised a retention of part of the facade of the old Sandringham Telephone Exchange Building is considered a positive aspect as it ensures that the Edwardian character of Sandringham is respected. She claimed the Council considered that the proposed building will sit comfortably in the Waltham Street streetscape.

15. Ms Bowdern argued that the reduction in the building height to three storeys will result in the building being consistent with the design and scale of surrounding development. She referred to approval on an adjoining site which will be part four storey and part three storey. She claimed however that that site was on a corner which was seen as a gateway to the Sandringham Urban Village. She also submitted that the total height of that building was 13.5m and is considerably shorter than the subject building which proposes to be 16.2m. She claimed that four storeys is considered more appropriate for a corner location and the subject building should not exceed the predominant height of the approval building which is three storeys. She claimed the proposed apartments will have an appropriate sense of address to Waltham Street with entry to apartments and the shop being provided from a centrally located entrance off Waltham Street.

16. Mr Norton on behalf of the Applicant for Review referred to the Council Officers report including the Urban Designer's comments. He advised that whilst the Urban Designer raised concern about the upper level of the building, he did not oppose the fourth storey perse.

17. Mr Norton submitted that the retention of the fourth level complies with Clause 22.04 of the Planning Scheme and promotes a number of planning policies as expounded in Mr Borelli's expert witness statement. Mr Norton called evidence from Mr Phillip Borelli, Town Planner, whose evidence on this issue was:

The development is to be located in the core precinct of a major activity centre on land within easy walking distance of a suburban railway station. State planning policy says that higher density development is to be encouraged in such locations, as these precincts are to accommodate a large proportion of Melbourne's increased housing needs over the next 30 years.

The Business 1 Zone objectives seek to encourage intensive development and the Local Planning Policy Framework (Clause 22.04-3) specifically envisages four storey development on sites such as this that are within the core retail precinct of the Sandringham Urban Village.

A four storey building has already been approved on the adjacent site at 1-7 Waltham Street and the top level of this building will be conspicuous, as the site is a prominent corner property and the upper level is not set back from this corner. In contrast, the fourth level of the current proposal is set back substantially from all surrounding streets and will barely be visible from nearby viewing locations. The Sandringham Urban Village Policy supports this scale of development "where the fourth storey is set back from the street frontage and has minimal visual impact from ground level".

The inclusion of the fourth level allows greater dwelling diversity as it enables three of the apartments to contain three bedrooms and larger living areas in contrast to the other five smaller two bedroom apartments. This is a significant benefit as housing diversity is an important policy objective and large, modern, three bedroom apartments are not common in the Sandringham area.

The additional upper level will also enhance the amenity of these three apartments for future residents, allowing a larger private open space with an excellent view towards the bay. Maximising views of the bay and public street areas is a specific objective of the Sandringham Urban Village Policy (Clause 22.04-2).

In a streetscape sense, the top floor adds only 2.3 metres to the height of the building and is set back 4.8 metres from the parapet. The perspective images of the development show that, as a result, the fourth floor structure will not be significant in terms of the building's streetscape scale and will not be visible from street level immediately opposite the site. From further away, it will be visible, but at greater distances from the site the additional height has no adverse impact and could, in fact, be considered to enhance the appearance of the building by adding interest and modulation.

The top floor does not cause any off-site amenity impacts either. The only other residential building adjacent to the site will be the development to the north-west and this has been designed with dwellings facing Waltham and Abbott Streets, rather than towards the application site. As a result, none of its apartments will suffer adverse amenity impacts from the proposed development.

18. Mr Norton also referred to a recent Tribunal decision of Lex Carter CMA v Bayside City Council & Others in which Member Cimino considered that the reasonable implementation of the planning schemes policies in relation to increased density of commercial and community facilities, must embrace the notion of larger, more intense development, including additional height. Mr Norton referred to Member Cimino's conclusion that the four storey building proposed in that case located in Bay Street Shopping Centre provided a "reasonable balance between facilitating the intensification of commercial and residential activity within an existing activity centre, whilst not being overtly excessive increment in terms of height".

19. During the discussion about external treatments of the building, Mr Norton advised that part of the facade of the building had been modified to appease the Council's Urban Designer, this included reduction in the height of the central masonry feature. The Tribunal enquired whether removal of the front parapet on the fourth level and replacement with transparent materials, such as glass, may assist to reduce the visual prominence of the building. Mr Norton after discussing the matter with his client advised that his clients preference would be to replace the parapet on the balcony with glazing, although he considered that there were other alternative treatments available. This led to a discussion about the appropriateness of the height of the stone feature at the front of the building. The Tribunal advised that the discussion about the general appearance of the building did not appear to be an issue, but it advised that the application for review may take this matter into consideration and provide an opportunity for further negotiations between the Applicant and the Responsible Authority on this detail. In this regard whilst not being an issue which is the subject of the Application for Review there appeared to be some room to reduce the visual bulk of the balustrade to the balconies, and in turn have transparent materials on the upper level of the building. On the other hand for architectural reasons there may be opportunity to increase the height of the stone wall feature up to the same height of the balustrade.

20. Having considered both parties submissions and viewing the subject site I am satisfied that the proposed four storey building does meet the objectives of Clause 22.04 of the Planning Scheme. I am satisfied that the upper level, including the balcony detail, which has been amended to read as a transparent feature will be sufficiently setback so that it reads as a three storey building when viewed from Waltham Street. It is acknowledged that from further distant views, such as in Chalmers Street or Abbott Street that part of the building will be seen as four storey, but such features on the top level of the building are recessive in appearance and will not dominate the streetscape.

21. I have modified Condition 1(f) by insisting on transparent materials (for most part) of the balustrade so that the upper level of the building appears less bulky and therefore has a minimal impact on the streetscape. This would also assist to increase viewing opportunities to the Sandringham foreshore and Port Phillip Bay.

22. I am satisfied that the Waltham Street face of the building will be read as a three storey building. The fourth level, by being recessed about 4.8m from the property frontage will then not be immediately visible from outside the site in Waltham Street. Its visual impact will be minimal and therefore meet Clause 22.04-3 of the Planning Scheme.

23. I note the upper floor level footprint is much smaller than the footprint of the floors below it. It has also been setback 5m from its southern boundary, abutting the old Sandringham Post Office Building. Accordingly, the building has been designed to respect nearby heritage buildings.

24. I acknowledge Mr Norton's assertion about the benefits of higher density development in a Business Zone and in particular his references to the Bay Street, Brighton case (P2228/2002). I do not consider that case has strongly influenced my decision in this matter as I consider the two shopping centres have different urban design characteristics. That being said I consider the most relevant matter which supports approval of this is found within the Sandringham Urban Village Policy (Clause 22.04-3).

25. Accordingly, it is directed that the Responsible Authority issue a permit generally in accordance with its earlier decision but revised in the relevant parts of Condition 1 and Condition 14. Some parts of Condition 1 will need to be renumbered to take account of the deletion of Condition 1(k).