Victorian Civil and Administrative Tribunal|2004-02-13|Before: Ms J

Jolin Holdings Pty Ltd v Moreland CC [2004] VCAT 225 (13 February 2004)

Planning and Environment List; s.79 Planning and Environment Act 1987;

Moreland Planning Scheme; Residential 1 Zone; Design and Development Overlay (DDO5); Environmental Audit Overlay; redevelopment of an industrial site; relevance of recent rezoning; height; character; adjacent to parkland.

The order of the Tribunal is that it is directed that a permit be issued for the development of No. 22 French Avenue, Brunswick East for sixteen dwellings subject to the following conditions:

1 Before the development commences, three copies of amended plans must be submitted to and approved by the Responsible Authority. When approved, these plans will become the endorsed plans and will form part of this permit. These plans must be generally in accordance with the original plans submitted, but must be amended to show:

(a) the recommendations contained in the Acoustic Report required by Condition 2 incorporated into the design of the development;

(b) a pedestrian and bicycle path of a minimum 1.2m in width (with details of proposed surface treatments) connecting from French Avenue to Methven Park generally in accordance with the alignment shown on the plan of John Patrick Pty Ltd (Ref 03-145-TP January 2004);

(c) bedroom 1 and 2 of Dwelling 1 at first floor level along the eastern and southern elevation be screened to a height of 1.7 metres in accordance with Clause 55.04 and Standard B22 to prevent overlooking into existing habitable room windows of the abutting property to the east and south;

(d) the first floor plans to be corrected to show the bedroom 2 window of Dwelling 1 and the powder room window of Dwelling 2 as detailed on the southern elevation plan;

(e) the residential entry to Dwellings 7 to 15 to be orientated directly to French Avenue;

(f) an energy rating report to demonstrate how the development will achieve a five star energy rating when measured against the Sustainable Energy Authority of Victoria `First Rate' system or equivalent;

(h) car parking space 17 to be at least 2.75m wide to allow doors to open next to the wall, as required by the Australian Standard for Off-Street Parking (AS2890.1);

(i) vehicular entry from French Avenue constructed as a vehicle crossing;

(j) provision of gas boosted solar hot water to service all dwellings.

(k) non-openable glazing to the south elevation of Unit 3 and the relocation of the accessway into the open space of Unit 3 to the west side of the dining room;

(l) the reconfiguration of the entrance to Unit 7 in accordance with the plan of John Patrick Pty Ltd. (Ref 03-145-TP January 2004).

All amendments must be to the satisfaction of the Responsible Authority.

2 Prior to the commencement of the development, a detailed acoustic report prepared by a qualified acoustic engineer must be submitted to and approved by the Responsible Authority detailing how the development will incorporate noise attenuation measures to attenuate noise levels from adjacent industrial buildings.

3 The development as shown on the endorsed plans must not be altered unless with the written consent of the Responsible Authority.

4 The columns in the car park are to be placed in accordance with the Australian Standard for Off-Street Parking (AS2890.1).

5 Prior to the commencement of the development, a Waste Management Plan must be submitted to and approved by the Responsible Authority showing and detailing:

(a) the provision of dual bins in cupboards in each unit to encourage separation of garbage from recyclables;

(b) a plan and calculations showing that all units will be sufficiently catered for with the proposed number of garbage and recycling bins;

6 Prior to the commencement of buildings or works, a plan (generally in accordance with the plan of John Patrick Pty Ltd - Ref 03-145-TP January 2004) indicating the area set aside for landscaping which is to include proposed planting and a schedule of all proposed trees, shrubs, ground covers (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces and prepared by a suitably qualified designer must be submitted to and approved by the Responsible Authority. Flora selection should be based on species recommended in the Moreland City Council Landscape Guidelines and Technical Notes. The plan is to show details of a 1.8m high transparent fence on the south elevation to Methven Park and a 1.2m high transparent fence adjoining Units 1 and 2 to the satisfaction of the Responsible Authority.

7 Before the occupation of the development approved by this permit, the 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.

8 Prior to the commencement of the development, an Environmentally Sustainable Development (ESD) Management Plan must be prepared by a suitably qualified environmental engineer or equivalent, elaborating on the design initiatives and construction methods suggested in the Environmental Innovations report prepared by Integrated Eco-Villages for the development. The Plan must include, but not be limited to the following:

(e) Schedule for monitoring of the ESD Management Plan; and

(f) A demolition and construction Waste Management Plan.

When submitted and approved to the satisfaction of the Responsible Authority, the Plan will form part of the endorsed plans under this permit.

9 Prior to the commencement of the development, a detailed stormwater drainage plan must be submitted to and approved by the Responsible Authority.

10 Prior to the commencement of construction or carrying out works either:

(a) (i) A Certificate of Environmental Audit for the land must be issued in accordance with Section 53Y of the Environment Protection Act 1970; or

(ii) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of that Act that the environmental conditions of the land are suitable for the use and development that are the subject of this permit.

(b) Where a Statement of Environmental Audit is issued for the land pursuant to Condition a(ii) above, the buildings and works and the use/s of the land that are the subject of this permit must comply with all directions and conditions contained within the Statement.

(c) Where a Statement of Environmental Audit is issued for the land pursuant to Condition a(ii) above, prior to the commencement of the use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988, and prior to the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions and conditions contained within the Statement have been satisfied.

(d) Where a Statement of Environmental Audit is issued for the land pursuant to Condition a(ii) above, and any condition of that Statement requires any maintenance or monitoring of an ongoing nature, the owner must enter into an Agreement with Council pursuant to Section 173 of the Planning and Environment Act 1987. Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, and prior to the issue of a Statement of Compliance under the Subdivision Act 1988. All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, are to be met by the owner.

11 The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must, to the satisfaction of the Responsible Authority:

(a) be completed prior to the occupation of the development;

(d) be drained and surfaced with an all-weather seal coat;

(e) have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan;

(f) not be used for any other purpose other than the parking of vehicles unless with the written consent of the Responsible Authority.

12 Access to the site, any vehicle crossover and any ancillary road and road drainage works must be constructed in accordance with any requirement of the Responsible Authority.

13 Before the occupation of the development, an automatic system of external lighting on the land must to the satisfaction of the Responsible Authority be installed and maintained to illuminate access to the rear dwellings, operating between dusk and dawn with no direct light emitted onto adjoining property.

14 Air-conditioning and other plant and generator equipment installed on the subject building shall be positioned and baffled so that no noise disturbance is caused to occupiers of adjoining properties.

15 Air-conditioning and other plant and generator equipment must be appropriately screened from the view of adjoining properties and the street to the satisfaction of the Responsible Authority.

16 All telecommunications and power connections (where by means of a cable) and associated infrastructure to the land must be underground to the satisfaction of the Responsible Authority.

17 Any plumbing pipe, ducting and plant equipment must be concealed from external views. This does not include external guttering or associated rainwater downpipes.

18 Electricity, gas and water meters must be located to the requirements of service authorities.

19 Every dwelling must be connected to reticulated water, drainage, sewerage, electricity, gas and telecommunications to the satisfaction of the relevant service authority.

20 Prior to the occupation of the development hereby permitted, the owner shall create a carriageway easement limited to pedestrian and bicycle access in favour of the Responsible Authority over the pedestrian and bicycle path referred to in Condition 1(b).

21 Prior to the commencement of the development, a site survey plan prepared by a licensed surveyor must be submitted to and approved by the Responsible Authority.

22 A brush fence 2.2m in height must be provided at the cost of the Applicant along the northern boundary of No. 32 Lord Street.

23 A mailbox containing a newspaper holder must be provided to each premises. The mailbox dimensions, location and height must be consistent with the standards specified by Australia Post to the satisfaction of the Responsible Authority.

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

* the development is not commenced within two (2) years of the date of issue of this permit;

* the development is not completed within four (4) years from the date of issue 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.

A copy of the Certificate of Statement of Environmental Audit, including the complete Environmental Audit Report must be submitted to the Responsible Authority within seven days of issue in accordance with Section 53ZB of the Environment Protection Act 1970.

Where a Statement of Environmental Audit is issued for the land a copy of that Statement must be provided to any person who proposes to become an occupier of the land, pursuant to Section 53ZE of the Environment Protection Act 1970.

The land owner and all its successors in title or transferees must, upon release for private sale of any part of the land, include in the Vendor's Statement pursuant to Section 32 of the Sale of Land Act 1962, a copy of the Certificate of Statement of Environmental Audit including a copy of any cover letter.

Where a Statement of Environmental Audit issued for the land contains conditions that the Responsible Authority considers to be unreasonable in the circumstances, the Responsible Authority may seek cancellation or amendment of the planning permit in accordance with Section 87 of the Planning and Environment Act 1987.

Ms J Bremner, Mr S Doyle, Mr D Anderson, Ms L Weaver and Ms H Fehring appeared on their own behalf.

Mr J Cicero, Solicitor, Best Hooper Solicitors. Mr Cicero called the following persons:

* Ms V Jackson, Harlock Jackson Pty Ltd, Planners;

* Mr J Patrick, John Patrick Pty Ltd, Landscape Architects;

* Mr N Sideridis, C S Traffic Surveys, Traffic Engineers.

* Failure to grant a permit within the prescribed time under Section 79 of the Planning and Environment Act 1987.

1 The application for review was set down for hearing on 2 and 3 February 2004. On 28 January 2004, a request for an adjournment was received from neighbouring objectors (S Doyle and J Bremner) noting that the applicant had failed to provide the expert witness reports within ten working days of the hearing. There were five reports in all and it transpired that these had been received on 23 January (three reports) and 27 January (two reports). It was claimed that insufficient time had been provided to examine the reports and prepare for the hearing.

2 The applicant for review opposed the request based on the fact that, notwithstanding the lateness, the three main reports had been available for perusal for over ten days (allowing for weekends) and that the two other reports, while submitted later, were very brief and easy to digest.

3 The Deputy President declined the request for an adjournment because of the lateness of the request however the matter was again raised at the commencement of the hearing. I indicated that while I took a dim view of the lateness of lodgement, I did take into account the holiday period (including Australia Day) had been a factor in the late transmittal. Indeed, the objectors were also on holiday at this time although that was not a determining factor as to whether the hearing should proceed. I also took into account the fact that the three main reports had, in effect, formed part of the original submission of the application which had been with Council since early 2003 allowing ample time for detailed assessment. In the end, I was satisfied that sufficient time had been allowed for consideration of the reports however, so as to ensure that the objectors were not disadvantaged at all, I directed that the normal sequence of submission would be altered allowing the objectors to present their case last after completion of the applicant case and examination of witnesses.

4 It also transpired that two objectors (L Weaver & D Anderson) had not been notified of the proceedings. Mr Cicero did not oppose both individuals being jointed as parties to the hearing.

5 The process which has led to the application has been a lengthy one. Amendment C1 (Part 2) to the Moreland Planning Scheme rezoned the subject site at 22 French Avenue Brunswick East from Business 3 to Residential 1 in May 2002. At the same time, Amendment C1 also covered the property with a site specific Design and Development Overlay (DDO5) and an Environmental Audit Overlay. The Independent Panel considering the merits of this rezoning heard from Council, the landowner and resident objectors and concluded that:

The Panel is of the view that the proposed residential zoning of the land generally complies with both State and Local planning policy and in strategic planning terms is a zone that is better suited to the land than the present Business 3 zone.

In considering amenity issues, the Panel is of the view that the DDO will provide a level of control that will enable the amenity of adjoining properties (residential, industrial and the park) to be protected.

6 Application No. MPS2003/0010 was lodged with Council on 3 January 2003. The relevant background facts in relation to the proposal, the subject site and the surrounding area were comprehensively set out in the written submission of the Council and Ms. Jackson and I do not propose to repeat them here save for the fact that it is proposed to replace an existing industrial use on a site of 1782m2 with a residential development comprising of 16 two bedroom dwellings of either one, two or three levels. I have had the benefit of an extensive array of maps, plans, photographs and other material, as well as two site inspections and this has given me a good understanding of the proposal, the land and its context.

7 The application was advertised by Council and six objections (plus a petition) were received citing grounds including, but not limited to:

8 Council did not make a decision on the application within the required time and as a result, an Application for Review was lodged in September 2003.

9 At the meeting of Council's Urban Planning Committee of 5 November 2003, it was resolved that the Tribunal be advised that, had Council been in a position to make a determination, it would have approved the proposal subject to 22 conditions.

10 In forwarding these conditions to the Tribunal, Council also summarised its attitude to the application as follows:

The proposal to develop the site at No. 22 French Avenue, Brunswick East, for sixteen dwellings comprising nine, three-storey dwellings, six double storey dwellings and one single storey dwellings fully complies with relevant policies and strategies within the Moreland Planning Scheme. Council considers that there would not be any adverse impacts on the amenity of adjoining and surrounding properties arising from the development. The proposed development has been designed in such a manner as to respect the existing built form around the subject site, is respectful, and has responded positively, to its interface with the adjoining Methven Park, and makes a positive contribution to the future character of the area. Subject to the amendments listed in Condition 1 below being met, the proposal also fully complies with the standards and objectives of ResCode.

11 Council advised that the subject site is now within a Residential 1 Zone with a Design and Development Overlay (DDO5) and an Environmental Audit Overlay. The site is not covered by a Heritage Overlay (HO) but the adjoining sites to the south (No. 32 Lord Street and Methven Park) are within a Heritage Overlay.

12 All of the statutory and strategic detail of the scheme was provided to me and there is no need to repeat it here except to note the clear MSS strategy (at Clause 21.06-1) to promote increased residential densities in Council's "urban villages" and close to public transport. The subject site is within a designated urban village and is close to public transport on both Lygon Street and Nicholson Street. It is also particularly important to record the objectives of the recently introduced site specific DDO5 which are:

* To provide a high quality interface between housing in French Avenue and Lord Street and Methven Park.

* To enhance the public realm through landscaping and give informal surveillance of Methven Park.

* To consider the visual impact of any new development on the heritage value of Methven Park.

* To provide a high quality example of the use of energy efficient design and environmentally sustainable development.

* To improve pedestrian access from French Avenue to Methven Park.

* To encourage contemporary and innovative design that reflects (sic) is respectful of the urban character and landscape attributes of the location.

* To provide for quality design treatments which facilitate the development of urban villages within the municipality.

* To ensure that new development includes appropriate acoustic measures to attenuate noise levels from adjoining industrial uses being audible within the building.

* To provide a design that respects and protects the recognised heritage value of adjoining properties.

* To ensure that any new development is compatible with the existing scale and character of residential buildings on adjoining and nearby sites.

13 The DDO also specifies height controls including:

* Buildings and works must not exceed a height of 9 metres. Building height should be greater at the north western extremity of the site, and not exceed 7 metres on the eastern extremity of the site.

* Building height on the southern boundary should be articulated and in keeping with the park interface

* Setbacks to French Avenue should be characteristic to the street and current residential development.

* Setbacks from the southern boundary should enable the utilisation of northern light for the adjoining property in Lord Street and Methven Park.

* Setbacks to the eastern and southern boundary should provide a landscape buffer/green space function, and address visual bulk, overshadowing and overlooking impacts on adjoining properties.

14 I have considered all of the submissions lodged with respect to the application and I have inspected the subject site and the surrounding area on two occasions. I have also had regard to the relevant matters under the Moreland Planning Scheme and the Planning and Environment Act 1987.

15 Having considered these, I believe that the key issues to address in the application are:

* Impact on neighbouring land especially heritage assets

16 I regard it as most relevant that the site has recently been rezoned from a Business 3 Zone to a Residential 1 Zone. Clearly the intention was to replace an under-utilised industrial site with new housing able to take advantage of the site's access to an attractive public park, to nearby public transport and to all the commercial and community attributes of this inner city location. An Independent Panel (and the Minister for Planning) has already decided that a Residential 1 zone is to be preferred to the former Business 3 zone as it complies with state and local planning policy. Such a rezoning is entirely consistent with state policy as embodied in Melbourne 2030, and local policy as expressed in Council's MSS. I particularly note that the proposal dovetails with the strategic direction of Clause 21.06-1 in terms of consolidating development within urban villages; and it complies with the specific direction of that Clause with respect to determining increased densities.

17 I also regard it as relevant that at the same time as the land was rezoned, a site specific Design and Development Overlay was applied to the land which sets out an array of design objectives, height limits, setbacks, design controls and decision guidelines applying specifically, and only to No. 22 French Avenue, Brunswick East. As discussed below, I am completely satisfied that the proposal accords with all of the relevant controls specified in the DDO. The rezoning of the land and the application of the DDO are not matters which are before me - they have already been determined by the Minister for Planning. What is before me is a development which purports to satisfy the relevant detail of the zone and overlay. I am more than satisfied that this has been achieved.

18 There is yet another level of compliance which I also need to be satisfied with and this involves Clause 55 of the Moreland Planning Scheme which was introduced into all schemes in 2001 as part of the "Rescode" package. While it was common ground that the application substantially complies with this Clause, Ms Jackson fairly conceded that there were some areas of non-compliance (to varying degrees) including site coverage, setbacks, walls on boundary and solar access to open space.

19 Of the areas of non compliance, the matter of the site coverage of 69% was most criticised by the objectors as being inconsistent with Clause 55.03-3 and was therefore a measure of the overdevelopment of the site. Ms Fehring quite fairly queried why a site coverage of 69% could even be considered when the planning scheme only stipulated 60%. Clause 55.03-3 has as its objective, "to ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site". Standard B8 then says that the site coverage should not exceed 60%. The preamble to Clause 55 importantly explains the provisions in the Clause and notes that a development must meet the objectives; and should meed the standards. The objective is the critical initial test and I believe that the site coverage of 69% does respond to the features of the site. I note that it replaces a similarly covered area; is abutted to the north and west by industrial buildings with very full coverage; and importantly, it leaves a large undeveloped slice through the site which provides an important link and "breathing space" on the property. I am satisfied that the objective of Clause 55.03-3 has been met.

20 I am satisfied that in all instances the variations to Clause 55 are justifiable given the circumstances of the site and its abuttals especially to the industrial properties to the north and west. The most critical interfaces are to the residential properties to the east and south; and to the park to the south. These interfaces are sensitively handled and comply with all the relevant objectives and standards.

21 The last aspect of Clause 55 which I think requires comment is Clause 55.02-2 which has two residential policy objectives being:

* To ensure that residential development is provided in accordance with any policy for housing in the State Planning Policy Framework and the Local Planning Policy Framework......

* To support medium densities in areas where development can take advantage of public transport and community infrastructure and services.

22 I have already noted that I am satisfied that the proposal accords with state and local planning policy and I regard this as a strong factor in support of the grant of a permit. I also believe that this is a site which can support medium density housing as it is in an area which is very well served by public transport and by community infrastructure and services such as Methven Park.

23 Another relevant aspect of Clause 55 is neighbourhood character and there is no doubt that there is an apparent "clash" of character at the point where French Avenue changes direction at the point outside the front of this site. By virtue of the new zoning of the land, that character must obviously change, and this is reflected in the "City of Moreland Urban Character Study" which includes the site within Area 88 and which suggests that the older industrial areas, "..... offer excellent opportunities for new residential, or residential and mixed use conversion over time. Innovative medium and high density developments might be encouraged on larger sites". While I appreciate that a current amendment (Amendment C43) is before Council, I regard the above extract from the Character Study as Council's "preferred character" (in the context of Clause 55.01). I am satisfied that this design accords with Council's ambitions for the area in that it is an innovative medium density development on a large site. I also note that in the immediate and wider area, more modern designs have and are being undertaken including a dual occupancy at Nos. 20 and 20A Lord Street. The proposed development seems typical of the "innovative" designs which are being invited by the scheme.

24 While much was made of the issue of the building height and while I was encouraged to view the immediate area to determine prevailing (and alien) examples of building height, I am completely satisfied that the proposal is suitable in the context of its site, its environs and most importantly, the planning scheme. Mr McGauran and Ms Jackson were extensively examined on this issue and pointed to some, but not many, examples of two or three storey buildings in the general vicinity. They acknowledged that, for the most part, the area was dominated by detached single storey dwellings. On my inspections, I observed a three level building at 149 Glenlyon Street; as well as a three storey building on the corner of Lygon and Edward Streets. But most relevantly, I observed that the westerly vista on Jarvie Street (to the south) is terminated by a four and five level building on the west side of Lygon Street less than 400 metres from the subject site. These buildings are clearly visible from within Methven Park (near the playground equipment). I regard the proposed development which is partly up to three levels is not an alien intrusion into the existing built form in the area.

25 The height of the proposal is not simply a three storey response in any event. The development cascades from three levels (two storey above car park) in the north west adjoining existing industry, to single storey in the south east adjoining existing single storey residences. I regard this as both deferential and responsible to all neighbours and is clearly in accord with the specific DDO which states:

26 In addition, the property has an unusual site context bordered as it is on two sides by existing industry, another side by the opportunity provided by the park and on the other side by single storey dwellings which it matches. I commend the drafters of the DDO in establishing a clear urban design framework which takes all of this into account and I commend the design for satisfying this objective. It is a good example of the strategic vision in the planning scheme being implemented by a subsequent development application.

27 I also note the peripheral discussion about height and its nexus with density, with the assumption being that anything above (say) two storeys represents high density. Density is a relative term. A dual occupancy in a metropolitan context could typically be labelled "low density" whereas in a country town it can draw criticism as being "high density". I do not regard the redevelopment of a large inner city site such as this at a density of about one dwelling per 112m2 of site area as being high density at all. It has all on-site amenities including open space and parking while devoting a substantial portion of the land to a publicly accessible link between the residential area to the north east and Methven Park. I believe that there will be a net community benefit flowing from this application.

28 In terms of the interface between Unit 3 and No. 32 Lord Street, I am suitably impressed with what is proposed although I agree with the occupants of No. 32 Lord Street that it could be further improved. It is unusual in an inner urban setting and on such a major redevelopment site to have a design which is so respectful of its immediate residential neighbour that it drops its height to single storey; has open space as the intervening land use; and screens it all behind a 2.2m high fence. While the occupants of No. 32 Lord Street may from time to time hear some outside activities of the occupants of Unit No. 3 this really places them in much the same position as most people in a metropolitan environment. However, with the suggested repositioning of the accessway from the dining room from the south to the west; and the continuation of the brush fence along the property boundary, I am satisfied that the residential amenity of the neighbours will be protected.

29 Comments were made in relation to some anti-social activities in the park which were disputed by the residents. I don't place much store in these comments as I am less concerned with whether or not that has taken place than I am with the express call in the DDO to "..enhance the public realm through landscaping and give informal surveillance of Methven Park." I believe that the proposal will open up the park to its north side which will result in a much more active role for the park. Having dwellings facing onto the public park is preferable to the current situation of a wire fence with old sheds behind it; and is preferable to a redevelopment which turns its back on the park.

30 The proposal will also undoubtedly open up Methven Park to the wider community and make it more accessible for pedestrians and cyclists. I regard this as a significant matter in support of the proposal, notwithstanding that it may mean a change in the manner in which immediate residents use and enjoy the park. The fact of the matter is that the park is a community asset (one of only three heritage parks in all of Moreland) and its improved accessibility is strongly supported by the planning scheme.

31 While the subject site is not affected by any heritage controls, it does border both the park and No. 32 Lord Street which are within separate heritage overlays. In terms of the park, I am satisfied that the proposal, while visible from the park, is sufficiently recessive (especially at the third level) not to overwhelm its heritage qualities. On my inspections, and with the mature vegetation within the park providing an important screen, I believe that the development will sit comfortably at its northern edge softened as it will be by landscaping on or near the boundary. I am also satisfied that the impressive southerly elevation of No. 32 Lord Street will not be impacted by the design when viewed from Methven Street because of the lower level nature of development behind this property. I have already commended the design (subject to modified conditions) on the northern interface between the site and No. 32 Lord St. with its preference for a single storey development as it adjoins the heritage property.

32 I believe that there is an appropriate level of car parking provided on site for two bedroom units and that the surrounding road network can accommodate the anticipated increase of about 130 extra vehicle movements per day. Some visitors and perhaps even some residents will from time to time have to park on surrounding streets but on the available evidence, and on my inspections, this area is unlike many other inner city precincts where on-street parking is saturated. The fact that some people may have to use publicly available on-street parking from time to time is an everyday occurrence in the metropolitan area.

33 Having considered all submissions and having inspected the site and the surrounding area, I conclude that the proposal:

* Is overwhelmingly in accord with the strategic direction of the Moreland Planning Scheme;

* Is the logical outcome of the recent and specific rezoning of the land to Residential 1 Zone.

* Accords with the objectives, detail and standards of the DDO which has also recently and specifically been applied to the land;

* Is designed in a manner which accords with the zone and overlay;

* Is designed in a manner which conforms with Council's ambitions for neighbourhood character;

* Is respectful of its heritage abuttals to the south;

* Links with and opens up the community asset of Methven Park;

* Has no off-site amenity impacts especially to No. 32 Lord Street;

34 I therefore agree with the conclusion in the Council officer report of 5th November 2003 which noted:

Policies and strategies within the Moreland Planning Scheme encourage the level of change proposed. To this end, it is summarised that the proposed medium density residential development is considered to be situated comfortably in the context of adjacent developments.

The proposed development has been designed so as to respect the existing built form and protect the amenity to adjoining properties. The two and three storey dwellings have been sited and graduated at the western and northern ends of the site abutting the existing industrial uses.

Overall, it is considered that the proposed development will make a positive contribution to the urban fabric, within a site that has been designated for a medium density through to the preparation and adoption of Amendment C1 to the Moreland Planning Scheme.

35 Having determined to grant a permit there is the matter of the proposed conditions which were forwarded by Council. While I will retain the majority of the conditions, I have:

* added reference to the extra conditions to protect the amenity of the residents to the south including the need for 1.7m screening to the windows of Unit 2, the reconfiguration of Unit 3 and the new brush fence at the expense of the applicant;

* added a condition requiring a site survey to be undertaken;

* deleted the condition requiring identified bike spaces as there is more than enough room in each of the storage areas for this;

* cross referenced the landscape plan to the one provided at the hearing by Mr. Patrick including the fencing details;

* retained the need for the acoustic report limiting its reference to noise attenuation only from adjacent industrial buildings and not residential as I believe that it is only to the south where this may ever be an issue and this is accommodated by design and other conditions;

* added a condition requiring a formal carriageway easement for the path to be provided in favour of Council.

36 The Tribunal directs that a conditional permit be issued.

Environment Act 1987

Jolin Holdings Pty Ltd v Moreland CC [2004] VCAT 225

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Jolin Holdings Pty Ltd v Moreland CC [2004] VCAT 225 (13 February 2004)

Parties

Legislation Cited (1)