[2003] VCAT 895

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for two dwellings at 22 Ruabon Road, Toorak generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts, 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 show:

a. The basement access ramp as shown on the plan attached to the decision of the Victorian Civil and Administrative Tribunal in Application For Review P249/2003, together with any changes to the fence design necessary to achieve a reasonable sight distance;

b. Larger lounge room windows for each dwelling, together with any trellis required to extend the height of boundary fences opposite these windows to achieve a satisfactory degree of privacy;

c. The location of all plant and equipment, which must be contained within the proposed building envelope.

d. A landscape plan, indicating the area or areas set aside for landscaping and a schedule of all proposed trees, shrubs and ground covers (including size at maturity and botanical names), must show:

i. Appropriate screening along the sites southern boundary to minimise the potential for the sites private open space to be overlooked.

ii. Screening vegetation along the sites eastern and western boundaries, and

iii. Appropriate landscaping the dwellings front setback, including the terracing of the setback areas, to minimise the dominance of the development;

All to the satisfaction of the Responsible Authority.

e. The exterior treatment to a scale of at least 1:100 including details of all materials, finishes and colours.

2. The vehicular crossing shall be constructed to Council's standard vehicular crossing specifications.

3. The development allowed by this permit and sown 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.

4. 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 this permit.

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.

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 refuse permission for two attached dwellings on land in Ruabon Road, Toorak. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposal fails to further the objectives of Council Local Planning Policy Framework, in particular Clause 22.02.

2. The proposal fails to meet all objectives of Clause 55 of the Stonnington Planning Scheme.

3. The proposal fails to respond to the neighbourhood character of the surrounding area.

4. The proposed development is a poor design response for the site.

5. The basement car parks have the following deficiencies:

6. No opportunity for meaningful landscaping has been provided in the proposal.

7. The provision and useability of private open space is poor.

2. The parties at 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 land and its locality.

3. At the commencement of the hearing Mr Verhoeven applied to amend the permit application by the substitution of amending plans as foreshadowed in notice given in accordance with the Tribunal's practice requirements. No one opposed the amendment of the permit application in this way and the Tribunal ordered its amendment.

4. Ruabon Road is a short east west street connected to Malvern Road via Canterbury Road at its eastern end and a laneway at its western end. The topography of the locality falls quite steeply from Malvern Road northwards to the Dandenong Railway line. The dwellings on the north side of Ruabon Road, between the road and the railway line, tend to be smaller late 19th century and early 20th century cottages. The character of existing dwellings on the south side of Ruabon Road, is somewhat more varied, both in style and scale, with a number of the dwellings sitting above street level as a consequence of the topography. The character of this side of the street is also heavily influenced by very substantial 1960's flat developments located immediately to the south. The subject site is occupied by a very unattractive flat roof yellow brick dwelling which was also probably constructed during the 1960's.

5. The proposal is to construct two, two storey attached dwellings sitting side by side on the lot above a basement car park to be accessed by a single ramp located adjacent to the east boundary of the site. Each dwelling is to have three bedrooms at first floor level, and two car spaces within the basement car park. It is intended that vehicles within the basement should be able to exit the site in a forward direction.

6. The primary issue in this application for review is neighbourhood character with its first cousin streetscape character, together with some more restricted issues in respect of internal and external amenity.

7. I do not agree that from a streetscape perspective the rhythm, height, mass, articulation or frontage setback of the proposal leads to an outcome which is unacceptable either from the perspective of the immediately adjoining properties or the street as a whole particularly on its south side ie.

* The proposal for attached dwellings, both fronting the street, respects the rhythm and character of dwellings in the immediate environs of the site;

* From a broader neighbourhood character perspective, the proposed buildings are massed within the line of buildings evident on the south side of Ruabon Road, and on immediately adjoining sites, this is not the case where there are two storey buildings impinging upon what is presently and open and unimpeded outlook from adjoining private open space.

* The proposed buildings are reasonably large two storey dwellings somewhat elevated above street level, nevertheless from an architectural perspective the buildings are well articulated, the streetscape elevations provided demonstrate that the transitions in height between the proposed buildings and the buildings on adjoining sites is respectfully managed. The Tribunal has observed on many occasions that the mere fact that nearby buildings are single storey does not constitute a basis for the proposition that only single storey dwellings are acceptable from a neighbourhood character's perspective; and

* The proposed frontage setbacks provide an appropriate transition between the frontage setback evident on the dwellings to the east and west of the subject land, and will aid in moderation of the apparent scale of the proposed buildings.

8. Mr Dalton sought a further small reduction in the overall height of the buildings by reducing the basement level. While I accept Mr Verhoeven's argument that any further reduction in height would be difficult to achieve as a matter of practicality, I do agree that the landscape approach to the frontage setback area, and in particular the terracing of the landscaping, should be utilised to reduce the apparent height of the proposed building when viewed from the street.

9. In relation to the more specific amenity issues raised during the course of the hearing, I make the following observations:

* The amended plans proposed highlight windows to the east and west, while these measures certainly have the effect of ameliorating any privacy concern there might be, I do agree with Mr Verhoeven's submission that the proposed lounge rooms will as a consequence have inadequate access to daylight, and that in relation to these rooms a highlight window is an inappropriate design solution. It is my view that these proposed windows should be replaced by much larger windows, and that any privacy issue which flow from this change, can be readily addressed by the use of trellises on the boundary fences opposite these windows, if necessary. I note that Mr Verhoeven's proposal to enlarge the lounge room windows, and to rely on trellis for privacy screening, was opposed by the adjoining neighbours. Nevertheless, I believe that when one balances the competing amenity interests in this regard, Mr Verhoeven's proposal is to be preferred and is in an objective sense acceptable.

* The overshadowing of the south facing areas of private open space for the proposed dwellings does not quite meet the relevant ResCode standard. In relation to the adjoining sites there would be some additional overshadowing in the early morning, or the late afternoon respectively. In both cases it is my view that the impacts are well within acceptable limits having regard to the relatively urban character of the locality and the orientation of the site.

* While it was argued on behalf of Mr Edwards that notwithstanding the compliance with the ResCode's requirements the proposed car parking provision is inadequate in the context of the limited car parking supply in Ruabon Road. I do not agree that there is any basis for the argument that this proposal should provide for more car parking than that required by the ResCode standard. Four car spaces can be parked within the basement, and there is space for at least one and perhaps two car spaces adjacent to the kerb immediately in front of the subject site. This is a reasonable outcome. I note that Mr Verhoeven produced a plan showing a slight variation to the design to achieve a somewhat improved ramp grade, and I agree that the implementation of this proposal is warranted.

10. It follows from the above discussions that I am of the view that it is appropriate to direct the grant of a permit subject to conditions which include a requirement for an approach to the landscaping of the front setback area to reduce the apparent height of the building, and to require the redesign of the basement ramp in accordance with the plan submitted by Mr Verhoeven, and in association with that attend to the design of the proposed front fencing so that site distances to and from the car park ramp are reasonable.