[2003] VCAT 830

The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for the land at 8-10 Browns Road, Clayton.

The construction of fourteen apartments together with associated car parking and landscaping in accordance with the endorsed plans.

1. Before the development starts, three copies of amended plans drawn to scale and dimensioned 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 generally in accordance with the following plans prepared by Robert Pellicano & Co Pty Ltd.

* plan 1476.TP4D.Dwg 1476.TP5D.Dwg, 1476.TP6D.Dwg, 1476.TP7D.Dwg and 1476.TP8D.Dwg dated 16 January 2003; and

(a) the provision of eaves or shading devices to all north facing habitable room windows;

(b) a 500mm wide landscape strip provided along the southern side of the driveway to Apartment 7;

(c) screening to west facing balcony of Apartment 12 and west facing habitable room windows of Apartments 11, 12 and 13 to prevent overlooking to the adjoining properties in accordance with standard B22 of Clause 55.04-6 of the Monash Planning Scheme;

(e) compliance of the access ramp to the basement car park with Section 2.5.3 of Australian Standard AS2890.1 Parking Facilities - Off Street Parking, avoid cars bottoming out or scraping; and

(f) the crossover to the south of the site constructed as a 6.0 metre wide double crossover incorporating the existing crossover servicing the adjoining property.

2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. Prior to the commencement of the development, a schedule of construction materials and colours must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will form part of the permit.

4. Before the development starts, three copies of an amended landscape plan drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority. When approved the landscape plan will be endorsed and will then form part of the permit.

The landscape plan must be generally in accordance with the Landscape Design prepared by Urbanitas Pty Ltd dated May 2003, but modified to show:

(a) additional landscaping and planter boxes within the courtyard area especially outside the habitable room windows;

(b) a 500mm wide landscape strip provided along the southern side of the driveway to Apartment 7;

(c) planting to soften the appearance of hard surface areas such as driveways and other paved areas;

(d) a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material;

(f) the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site; and

(g) details of all proposed hard surface materials including pathways, patio or decked areas.

When approved the plan will be endorsed and will then form part of the permit.

5. Before any of the dwellings allowed by this permit are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

6. The plans must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to the nominated point of discharge. The nominated point of discharge is to the north-west corner of the property where it must be collected and piped to the 450mm Council drain in the Monash Medical Centre car park via a Council approved connection to be constructed to Council standards.

7. All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties (including the road reserve).

8. Driveways are to be designed and constructed using appropriate engineering standards.

9. Stormwater discharge is to be retained on site to the predevelopment level of peak stormwater discharge. Approval of any retention system is required by the Responsible Authority, prior to works commencing. A drainage contribution of $9880 may be accepted in lieu of the installation of the retention system.

10. This permit will expire if one of the following circumstances applies:

* the development is not started within two years of the date of this permit;

* the development is not completed within four years of the date of starting.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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For the Applicant for Review: Mr How S Ng, Planning Consultant, H and G Town Planning Pty Ltd.

For the Responsible Authority: Mr Nicholas Crawford, Solicitor, Maddocks, for Monash City Council.

For the Respondent/Objectors: Mr Leslie K Morgan and Mr Chris Georgiou appeared in person and presented oral submissions.

1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Monash to refuse to grant a permit (in Application No. 29882) for the land at 8-10 Browns Road, Clayton to be used/developed for the purpose of fifteen apartments together with associated car parking and landscaping.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr How Ng requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

3. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 4 June 2003 detailing the changes and outlining the Permit Applicant's intention to seek approval for their substitution.

4. Mr Ng briefly outlined the nature and extent of the changes. These included:

* a copy of the landscaping plan and a revised copy of the proposed ground floor plan (1476.TP-3F).

5. There was no objection to the substitution of these plans. The Tribunal agreed to make the amendment in the manner requested.

6. The subject site is located on the west side of Browns Road between Fortuna and Lantana Streets. The site is regular in shape and has a frontage of 34.37 metres, a depth of 45.72 metres and an area of 1571 square metres. The site is currently vacant.

7. The Tribunal finds the following description of the site and locality, taken from Mr Crawford's written submission, to be an appropriate one:

The Land falls 1.36 metres from the north-east to the south-west and is currently vacant but for 2 large trees in the south-west corner of the Land. It is not proposed to retain any existing vegetation on the Land.

The surrounding neighbourhood is characterised by a mix of single and double storey brick and weatherboard dwellings.

The Monash Medical Centre (MMC) car park abuts the Land to the north. Three single storey units abut the Land to the south. The properties adjoining the Land to the west are single storey detached dwellings.

Clayton railway station and Monash University are located in close proximity to the Land.

8. Mr Crawford described the proposal in the following terms:

The application seeks approval for the construction of 15 apartments over a basement car park. The building is a combination of single, double and three storeys.

The three storey portion of the development is oriented towards the north and west of the Land. The single storey portion is oriented towards the south-east.

The basement car park provides 2 tandem car spaces for each apartment except for Apartment 7 which will have its own garage. Two visitor car spaces and storage areas are also provided in the basement car park.

The garage of Apartment 7 is accessed from a single crossover to the south of the Land. The basement car park is accessible from a double crossover to the north of the Land, adjacent to the MMC car park.

Pedestrian access to all apartments is via a central courtyard.

The proposal provides 7 two bedroom apartments at the ground floor level, 6 two bedroom apartments at first floor level, and 1 two bedroom and 1 three bedroom apartment on the second floor level. All apartments have a kitchen, meals area, lounge, bathroom and laundry. The apartments range in size from 65m2 to 136m2.

In addition to the communal central courtyard, individual private open space areas are provided for each apartment. Private open space ranges from 10m2 to 30m2.

Rubbish and recycling bins are to be located in the basement car park. The Applicant advises that private contractors will collect the garbage from the base of the access ramp.

9. The relevant planning controls were summarised at pages 3-4 of the Responsible Authority's submission, which I adopt for the purposes of this determination.

10. The subject application for permit (No. TPA29882) was lodged with the Responsible Authority on 7 November 2002. Following the giving of notice of the application, seven objections were received. The grounds for objection were summarised in the officer's report as follows:

* Proposal does not comply with the Desired Future Character Statement;

* The design of the building does not fit in the neighbourhood character which is single storey with pitched roofs;

* Lack of private open space area provided for Units 1 and 7;

* Each dwelling does not have a sense of identity;

* Proposal does not comply with the plot ratio guidelines;

* Detrimental impact on traffic and increase in accidents;

11. At its meeting on 18 February 2003 the Council resolved to issue a notice of refusal to grant a permit on the following grounds:

1. The proposed development fails to respect the existing neighbourhood character and is therefore considered to be inappropriate having regard to the objectives of the Monash Planning Scheme and Council Policy for residential development in this precinct.

2. The proposed development will have an adverse impact on adjoining properties and the neighbourhood in respect of overlooking and car parking issues.

3. The proposed development fails to provide adequate useable private open space for a number of ground level apartments.

12. The subject application for review was lodged on 26 February 2003. The stated grounds for review were that:

1. The proposal is well designed, more than substantially complies with ResCode and responds well to the locality and the zoning of the land.

3. The refusal is unreasonable and all grounds of refusal will be contested.

13. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area.

14. The principal issues for consideration in respect of this application for review fall into four categories:

15. The City of Monash is experiencing an increasing demand for a range of different housing as older dwellings are removed and sites are redeveloped to meet current needs. State and local planning policies emphasise the need to balance residential amenity considerations with those of urban consolidation and the diversification of housing.

16. The residential strategy at Clauses 21.04 of the MSS identifies the subject site as being within Character Area B of the Monash Urban Character Study. Area B is characterised by development in the post-war years, 1945-1965, in an area of flat topography with a grid subdivision pattern. A key issue is that "residential character needs to be enhanced by ensuring that new development and redevelopment is in keeping with and contributes to the garden city character of Monash".

17. The subject site is also situated in an `Investigation Area', which is the subject of the first of the residential strategies at Clause 21.04-3:

Nominate "Investigation Areas" where substantial change may be expected. These areas have the potential to be improved by promoting high quality, higher density development, distinctively different to the type of medium-density development to be found in other parts of the municipality. Demand is high for student accommodation around the Monash University precinct. Apartment and serviced apartment living is sought after around the Monash Medical Centre and the Glen Waverley Regional Activity Centre. The form of development should be site responsive design. It is likely to have greater scale than traditional forms of multi-dwelling development and be on larger sites. It will also exhibit greater articulation while achieving high quality design standards, quality residential environments and enhanced local amenity. Specific design standards will apply to developments in these areas.

18. The MSS acknowledges that further strategic work is required to identify the status of the Investigation Areas and to prepare design and development guidelines for those areas. I note that the officer's report stated that:

Excluding minor design deficiencies relating to the provision of private open space and tandem car parking, the proposed development generally complies with the draft guidelines for this form of development in the "Investigation Areas". These guidelines have not been adopted by Council.

19. It is apparent from the foregoing that the development of a more intensive residential apartment complex in this location is consistent with the strategic and planning policy thrust of the municipality.

Design Response In The Context Of Neighbourhood Character

20. As a result of Objector concerns following notification of the proposal, the plans were amended to include:

* the use of building materials more consistent with the abutting residential properties; and

* the third floor set back further from boundaries.

21. Despite these changes, Council and Messrs Morgan and Georgiou maintained that the basement and three level proposal was an overdevelopment of the site in an area of predominantly single storey dwellings and as such was out of character with the neighbourhood.

22. I agree that the changes to the external appearance have given the proposal an added sense of linkage with the surrounding area. However, those changes have not addressed the issue of bulk and the perception of dominance that is given by the third level elements.

23. Apartments 14 and 15, which constitute the top level, have been situated in the north-west corner of the site with balconies to the north overlooking the car park. Both apartments have flat roofs and are clad with weatherboards to reduce height and to give a lighter appearance. However, in the case of Apartment 15, it is situated directly above the private open spaces of the two single detached dwellings immediately to the west of the site at Nos. 30 and 32 Kanooka Grove, albeit set back six metres from the boundary, one metre more than the setback of the ground and first floors.

24. Although there are large institutional buildings, namely the Monash Medical Centre and its associated facilities within the broader locality, the task of a new more intensive group of apartments must still be to relate to the residential neighbourhood in its immediate surroundings.

25. In other respects, the disposition of building bulk on the site has been well handled with reasonable setbacks, essentially a double storey form to the frontage and with Apartment 7 designed to accommodate a person or persons with disabilities providing a detached single storey transition from the similarly structured unit development to the south.

26. While Apartment 14 will be visible to people approaching the complex from the north along Browns Road due to its situation on the northern side of the building, it will be less evident from the south and largely invisible form the east (Browns Road) and the west.

27. Accordingly, I have found that the size and location of Apartment 15 is such that it will give the proposal the impression of excessive visual bulk and dominance. A condition of permit will therefore require that it be deleted.

28. Two large trees, a pine tree and an unidentified deciduous tree, are situated in the south-west corner of the site. Although the Council expressed a preference for the trees to be retained, no arboricultural evidence was before the Tribunal and no vegetation controls apply to the subject site. My inspection of the site revealed that the pine tree is a large apparently healthy specimen with much growth still to occur. The deciduous tree has a bifurcated trunk, which originates close to ground level. In my opinion neither tree makes an important contribution to the amenity of the site or the surrounding area. In the longer term the development will be better served by landscape planting designed to complement the available spaces.

29. Mr Morgan and Mr Georgiou also expressed concern regarding the additional traffic likely to be generated by the proposed development given the already large volumes associated with the existing car parks for the Monash Medical Centre on the north side of the site and adjacent to the Clayton Primary School to the south. I note from the Council officer's report that Browns Road functions as a collector road within the network with an average volume of 4,270 vehicles per day and that it is expected that the subject proposal will generate an additional 120 vehicle movements per day which was described as having a minimal impact on the current traffic levels. The conditions of permit will require changes to the crossover on the southern portion of the site and changes to the grade transition from the ramp to the basement car park in accordance with the relevant Australian Standard.

30. The proposal provides for 28 resident spaces and two visitor spaces in the basement car park together with two spaces associated with Apartment 7 at street level. Concern was expressed in the officer's report that the use of `tandem' parking within the basement may cause an overspill to Browns Road. However, where the majority of apartments are two bedroom dwellings it is more than likely that occupants will arrange their movements to facilitate effective use of the basement car park as happens successfully in many other instances.

31. I am satisfied that the screening measures required under the permit conditions for the west facing first floor windows and balcony will provide an adequate level of visual privacy to the dwellings fronting Kanooka Grove.

32. In summary I have found that the proposed development of fourteen apartments at

8-10 Browns Road, Clayton represents an appropriate development of the site that is consistent with the strategies of the planning scheme and will offer an appropriate standard of internal amenity for future occupants without generating adverse impacts on nearby properties.

33. Accordingly I will direct that a permit issue.

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