117-119 Camberwell Road, 34-38 Harold Street and 2-4 Graham Place, Hawthorn East

JG (VIC) Pty Ltd v Boroondara CC [2007] VCAT 1152

1. The Permit Applicant is to advise the Registrar and the Responsible Authority in writing within 21 days of the date of this interim decision ('notification date') whether it intends to lodge amended plans in accordance with the opportunity and leave given, and in accordance with the Tribunal's recommendations.
2. Within sixty days of the 'notification date' the Permit Applicant must complete any modified plans ('completion date').
3. Within seven days of the 'completion date', the Permit Applicant must file with the Tribunal and serve on the parties and the Responsible Authority as follows:
   1. fully detailed plans drawn to a scale of 1:100 showing the proposal with any and all modifications;

b) an accompanying letter pointing out each modification made;

1. two such copies are to be served on the Responsible Authority - one for its own use and one for parties not sent their own copy (see f)) below;
2. one such copy is to be served each on Mr Ross Walker, Mr Rob Favata, Ms A Rappos, Mr Ian Angus (for the Boroondara Residents Action Group) and Mrs Mary Drost; and
3. For parties not listed in e) above -who did not attend the hearing - a letter indicating that an amended set of plans is available for inspection free of charge at the offices of the Responsible Authority.

1. The date by which the Applicant must complete service in accordance with the foregoing direction is the ('circulation date').
2. The Applicant must file with the Tribunal within seven days of the 'circulation date', a statement of service evidencing its compliance with these directions, together with a copy of the form of letter and any other document sent with it.
3. Within 28 days from the 'circulation date' the Responsible Authority and other parties must give to the Tribunal and the permit applicant its comments (if any) on the modified plans.
4. Upon receipt of written comments the Tribunal will finalise its determination.
5. If the Permit Applicant does not respond to Direction 1 or indicates that it does not wish to prepare amended plans, the Tribunal will disallow the review application and direct that no permit is to issue.

Mr John Cicero, Solicitor of Best Hooper Solicitors. He called as expert witnesses:

Mr John Rantino, Solicitor of Maddocks. He called as expert witnesses:

Mr Jim Holdsworth, Urban Designer and Architect; and

Mr Ross Walker, Mr Rob Favata, Ms A Rappos, Mr Ian Angus (for the Boroondara Residents Action Group) and Mrs Mary Drost.

1. JG (VIC) Pty Ltd opposes Council's refusal to grant a permit for a five storey mixed use development (comprising offices, serviced apartments, café and basement parking) on land located with frontages to both Camberwell Road and Harold Street in Hawthorn East. The site has an area of 2,675m2, is occupied by six single storey buildings used for a variety of purposes and is located approximately 400 metres from Camberwell Junction to the south east. Land along both sides of Camberwell Road in the immediate vicinity has been developed in the recent past for 2, 3, 4 and 5 storey office buildings. In contrast, Harold Street near the review site is used for residential purposes with older style flats to the east, newer apartments to the west and period homes along the north side of the street.
2. The application considered by Council was for a mixed-use development within a 6-storey building over three levels of basement parking. Subsequent to the applicant's request for review, amended plans were submitted which amongst other more detailed matters, reduced the height of the building from six storeys to five. [1]

1. The site is zoned Business 2 and is affected by an Environmental Audit Overlay.[2] Various state and local planning policies were highlighted for our consideration[3].
2. We inspected the site and locality on the day following the hearing. Documents, including previous Tribunal decisions, submitted at the hearing have been retained on the Tribunal file.

1. The starting point for any assessment of this application must take into account the following key factors:

1. The land is zoned Business 2. 2. The land is not affected by any overlays dealing with built form (including those targeting demolition, heights and setbacks).

1. The land is within the Camberwell Junction Activity Centre.

1. The land is earmarked on the Framework Plans in Clauses 21.07 and 21.08 as being within a Mixed Use Corridor (Office, Commercial, Manufacturing, High Density Residential) or a Primary Mixed Activity Corridor (Industry, Office and Residential). 2. The land is within an area where policy contemplates office buildings to generally not exceed four storeys but seemingly inconsistently is also within an area (at least along Camberwell Road) where policy contemplates buildings up to 11 metres in height and with 3 metre setbacks to both Camberwell Road and Harold Street.

1. The local policy framework singles out this strip as the Primary Mixed Activity Corridor on the Commercial Framework Plan and Clause 21.08-3 requires implementation by:
   • Applying the Business 2 Zone to encourage appropriate office development in defined areas and precincts (particularly the Burwood/Camberwell Road Corridor, and on the fringes of existing shopping centres).
2. Policy in Clause 22, and in particular the office policy at Clause 22.08, provides more specific guidance as to what Council is seeking in terms of office development in the municipality. Clause 22.08 includes detailed policy for new office development utilising 10 subject areas (land use principles; façade design; building setbacks; design bulk and height; ground level frontages/entries; forecourt setbacks; car park layout, design and access; footpath network; pedestrian crossings; and laneways). Decision guidelines then provide further guidance on these and other subjects.
3. Submissions and evidence dealt at some length with this policy and with Clause 22.02 (which we discuss shortly) and in particular the policy that new office development generally not exceed four storeys. Apart from the fact that the word 'generally' means that buildings higher (or lower) can be considered, policy and individual parts of policy are not mandatory and, as required by Clause 11.01, responsible authorities (and the Tribunal on review):

will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

1. We note that Clause 22.08 also includes, amongst a long list of matters, policy that new office development:
   • contributes to creating streetscapes which maintain interest and provide a rich visual environment.
   • Completes and enhances existing streetscapes and residential interfaces.
   • Creates an integrated streetscape.
   • Be setback in accordance with the recommended setbacks under Clause 55, where site adjoins residential land use to minimise overlooking and overshadowing. (In certain circumstances greater setbacks may be warranted).
2. Other local policies seek to achieve a 100% self containment rate for employment in the City (whatever that might mean in terms of practical achievement) and to encourage office and other commercial development within the City.
3. Clause 22.02 applies to all applications for use and development within Camberwell Junction as defined on the map attached to the policy. The review site is within but on the edge of the policy area. Perhaps surprisingly, the written parts of the policy are largely silent about office use and development and instead focus on retail and residential activities, together with design, built form, traffic, parking and amenity impacts. The Structure Plan (Map 2) referenced in the decision guidelines (22.02-4) does identify preferred locations for various land uses although inexplicably the review site and land in the immediate area has not been numbered (although the area has been shown as being a 'potential development site' and as 'existing and potential parking area'). Maps 3 and 4 are more helpful - Map 3 (Scale and Character) shows a minimum landscape setback of 3 metres to both the Camberwell Road and Harold Street frontages while Map 4 (Heights and Setbacks) shows an 11 metre height limit to the commercial part of the site (Camberwell Road) but nothing for the balance of the site. We understand that Council is currently reviewing both the structure plan and policy for Camberwell Junction, and that some of the preliminary work suggests that recommended heights along Camberwell Road may be increased from 11 to 18 metres. Apart from the fact that this review is at a very preliminary stage, it does not assist us in assessing whether this particular proposal is appropriate to its site context.
4. We have already commented that policy is not a mandatory requirement but instead provides guidance about what may be an appropriate outcome.

1. So where does that leave this site and this proposal? Of the three experts who gave evidence about the design aspects of the proposal, it was only Mr Milner who did not support the fifth storey. Both Mr Holdsworth for Council and Mr McGauran for the permit applicant found the fifth storey acceptable, although Mr Holdsworth's support was conditional on the building being setback at the ground floor street frontage, and stepped back progressively the higher the building.
2. We make the point that there is nothing 'magic' about seeking to limit buildings to four storeys (or to 11 metres as suggested on Map 4 in Clause 22.02) and each proposal must be assessed having regard to its particular site context. Our site inspection enabled us to assess the relative merits of the different opinions about the built form and to view the proposal having regard to the site context. This part of Camberwell Road is now re-developing with much higher buildings and most of the new buildings in the immediate vicinity of the review site are substantial, and of three, four and even five storeys in height. Most have some setbacks and landscaping to Camberwell Road and it appears that Council's policy to encourage more intensive use and development along the Camberwell Road/Burwood Road corridor is working.
3. We agree with Mr Holdsworth and Mr McGauran that the review site can sustain a taller building of the height proposed here. Whether it is 2 or 5 metres taller than existing buildings is irrelevant to whether it is appropriate in its context. Having assessed this site from various vantage points including higher ground in Harold Street and from points along Camberwell Road, we are satisfied that it will sit well within its context. However, we do not accept the minimal or non-existent street setbacks, which we consider are not reflective of the taller buildings along Camberwell Road. We therefore support additional setbacks of the order suggested by Mr Holdsworth. Appendix 1 includes a diagram of what we propose.
4. We now turn to the Harold Street frontage, and the way in which the building interacts with the street and with residential properties opposite and to the west. Although the Boroondara Residents Action Group and Mrs Drost raised more general concerns about the scale of the development, they and nearby residents had a major issue with how the building appeared in Harold Street. We share those concerns although we do not in principle reject the uses proposed for the review site or the notion of a substantial building being constructed facing Harold Street. It is a fact that the review site and adjoining land is in a Business 2 Zone and forms part of a major centre that has existed and been evolving and expanding for over one hundred years. Although the land uses along Camberwell Road and the south side of Harold Street have changed, Harold Street has never been a quiet residential street and has always been a busy vehicular link between Prospect Hill Road and Camberwell Road. This is an interface location and we accept the well established view that interface properties, on which ever side of a zone boundary, have different opportunities and constraints than sites well removed from zone boundaries. Owners of residential properties next to or opposite a business or industrial zone cannot realistically expect the same level of residential amenity as someone residing in the middle of a purely residential area. Similarly, owners of commercial or industrial sites abutting or opposite residential properties cannot expect the same opportunities with regards to their building design as owners of sites well removed from residential areas. This is explicitly recognised in planning policy as evidenced by the many references to commercial development maintaining and enhancing residential amenity and interfaces (see for example Land Use principles in Clause 22.08-3).
5. However, as noted, it works both ways and development within a business zone must also be modified to take account of nearby residential uses. As with the height issue and setbacks to Camberwell Road, the expert witnesses also presented different views about setbacks and the presentation to Harold Street. We have considered the various viewpoints having regard to our site inspection and our appreciation of how the building will be viewed and how it will operate as serviced apartments. Although the proposed façade is articulated and upper levels are setback, we consider that the major shortcomings at this end of the building stem from its minimal setback at ground level. We consider that the overall building height to the Harold Street frontage of the ground, first, and second level is excessive. The basement up stands, ground floor, and first level must be setback a minimum 3 metres from the footpath, and upper levels then setback progressively beyond the levels below. Appendix 2 is a diagram of how this might be redesigned.
6. We also have major reservations about the way in which residents will come and go to the serviced apartments. At the hearing, we questioned Mr Fairlie about vehicle movements associated with people coming and going, but are not convinced by his suggestions as to how it might operate. We do not find it acceptable that taxis may park below the flats to the east. We observed on our site inspection that the eastern part of the 'laneway' in this location is actually private land and we can imagine residents objecting to the noise associated with vehicles and people moving around below their windows, especially at night. Nor do we find it acceptable that vehicles may park in Harold Street or further south in Graham Place. This is all too ad hoc and unplanned and results in potential amenity and safety issues that we are not prepared to support. We therefore require the development to be modified to incorporate a practical and useable vehicular 'drop off zone' within the review site. This 'drop off zone' should be parallel to the street, within the site boundary, and be a minimum size to accommodate the access and egress of one vehicle. This 'drop off zone' may adjust the north east corner of the proposed building, and would require the approval of the Responsible Authority.
7. One of the issues raised by Council and residents was how the building would be viewed from along Harold Street and from within houses on the north side of Harold Street. There is no doubt that the building will be clearly visible from along Harold Street, from front gardens of houses in Harold Street and from further way in Camberwell Road. That in itself is not a reason to refuse the proposal and we reject the notion that buildings should be made invisible or as inconspicuous as possible.

1. Mr Walker who lives in an apartment to the west of the review site, Mr Favata who lives on the north side of Harold Street and Ms Rappos who also lives on the north side of Harold Street raised some specific concerns about overlooking, overshadowing, noise from air-conditioners, tree removal and other detailed matters of direct impact on them. Our decision to require an amended application will enable the permit applicant to re-assess and if necessary make adjustments to prevent any unreasonable impacts to neighbours. In the case of overshadowing or overlooking this would involve consideration of the relevant standards in ResCode. Noise, fumes and other amenity issues can be dealt by permit condition (as was proposed by Council in the draft conditions circulated to parties - see for example conditions 11, 12, 13, 15, 20, 21, 22 and 29). There are no tree clearing controls in the Planning Scheme applying to this site and hence no ability to prevent the removal of the large elm tree.

1. Mr Fairlie gave traffic and car parking evidence. We have already commented about the arrangements for drop off and pick up at the serviced apartments and the changes we require to deal with our concerns. Two of Council's grounds of refusal concern inadequate car parking provision and insufficient provision of loading/unloading facilities. Council's concern about inadequate car parking is based on its fear that the serviced apartments may later become separate dwellings. Council concedes that car parking is adequate provided the serviced apartments are used as such. Despite Council's position, we note that the substituted plans now provide sufficient parking whether for serviced apartments or for dwellings. Mr Rantino conceded that other shortcomings in the parking arrangements could be dealt with by permit conditions if a permit is eventually issued. Vehicle loading/unloading can be dealt with in a similar manner.
2. Although residents were concerned about traffic to and from the development, we note that Council did not raise this as a ground of refusal and was satisfied that traffic can be accommodated on the surrounding road network. We note that neither VicRoads nor Council raised concerns about the number or safety of vehicle movements and we accept Mr Fairlie's evidence that:

The overall volume of additional traffic generated by the mixed use development is not expected to create any unacceptable traffic impacts in the vicinity of the site.

1. Ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. Rejecting new development on sites such as the review site does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located close to public transport, in a long established and very important centre and in areas where people live nearby, may eventually encourage a slowdown in the growth of traffic volumes. It may be an optimistic and long-term outcome, but it is one that planning policy seeks to achieve.

1. As previously noted, the issue of substance to this matter is principally the built form (height, visual bulk and setbacks) rather than the uses proposed or the fact that the land could sustain a building much taller than the existing single storey buildings on the site. The amended plans have resulted in an improved outcome, although one that we find needs further modification. We consider that a refusal at this time would not be productive, given the amount of effort that has been expended by everyone and because we have a clear view as to how the development can be further improved. An interim decision provides an opportunity for the permit applicant to consider the matters raised at the hearing and in our reasons and respond accordingly. If it chooses not to take up that opportunity then we will affirm Council's decision to refuse the application.

1. We here summarise our recommended modifications to the development as expressed above:
   1. On the Camberwell Road frontage:
      • The first 3 levels setback a minimum of 3 metres from that frontage.
      • The fourth level set back a further minimum 5 metres (ie. 8 metres in total).
      • The fifth (top) level set back a further 5 metres (ie. 13 metres in total).
   2. On the Harold Street frontage:
      • The whole building for the first two levels (including the protruding basement) setback a minimum of 3 metres from that boundary line.
      • The third level to be setback so that it matches the setback now provided for Level 4 (ie. setback to front of balcony to be a minimum of 9 metres).
      • The fourth level to be setback so that it matches the setback now provided for Level 5 (ie. setback to front of balcony to be a minimum 12 metres).
      • The fifth top level setback a further 2 metres more than Level 4 below (ie. setback to front of balcony a minimum of 15 metres).
   3. The north east corner of the proposed building may require redesigning to provide a dedicated vehicular 'drop off zone' within the property boundary (ie the angled corner of the site provides an opportunity for a space to be positioned parallel with the angled short splay and thereby utilise both Harold Street and Campbell Place to enter/exit the site).
   4. There will need to be a consequential redesign of the basement carpark and the internal layout of each floor (this may include a relatively minor re-allocation of floorspace between office/serviced apartment uses).
   5. Any changes necessary to prevent unreasonable overlooking or overshadowing or other off site amenity impacts to neighbouring properties.

[1] We agreed to the substitution of amended plans circulated to parties on 11th April 2007 in accordance with the relevant VCAT Practice Note. These plans are identified as Job No 05187 Drawing No's TP10 Revision G, TP14 Revision C, and TP15 Revision D, TP16 Revision C, TP17a Revision E and TP18a Revision E.

[2] Business 2 Zone provisions are at Clause 34.01. A permit is required to use the land for offices, café and serviced apartments and for buildings and works. A permit is also required for car parking, to waive the loading/unloading bay requirement and for signs. Note that there is no request to waive the car parking requirement.

[3] Relevant provisions include Clauses 11, 12, 14, 15.12, 17.01, 17.02, 18.01, 18.02, 18.03, 19.03, 21 (various) .22.02, 22.03, 22.08, 22.10, 52.05, 52.06, 52.07, 52.34, 52.35 and 65.