Kalpanis v Stonnington CC [2007] VCAT 30

The decision of the Responsible Authority is affirmed. In permit application 1127/05 no permit is granted.

Ms Karina Shpigel, solicitor with DLA Phillips Fox on behalf of Vic Roads

Mr Emil Gilels on behalf of Toorak Village Residents Action Group Incorporated.

Ms Clare McArthur on behalf of Ausvest Holdings Pty Ltd

1 This case concerns a proposal to construct a balcony at the Quaff restaurant for al-fresco dining. The balcony would overhang the footpath of Toorak Road in Toorak Village.

2 The Council required notice of the application to be given to the owners and occupiers of adjoining and surrounding properties and 3 objections were received. The application was also referred to Vic Roads who ultimately objected to the proposal. The Council subsequently decided to refuse to grant a permit on the following grounds:

The proposal is contrary to the purpose of the road zone.

The proposal is a road and public safety hazard.

The proposal is inconsistent with State Planning Policy and Local Planning Policy by way of failing to address urban design principles and policy.

The proposal will have a detrimental impact on a valued urban streetscape.

The proposal undermines the enhancement and protection of the public realm.

The proposal extends beyond the title boundaries and the site has no land title rights to undertake the works proposed.

3 James Kalpanis is now seeking a review of the Council's decision.

4 The key issues for determination in this case are essentially whether:

i

the proposal enjoys policy support and is consistent with the land's zoning;

ii

the proposal would have an adverse impact upon the Toorak Road streetscape.

5 At the commencement of the hearing Ms Shpigel, acting for Vic Roads, sought leave to be joined as a formal party to this proceeding.

6 There being no objections from the parties I granted the request.

7 Ms Shpigel also raised the question as to whether permission would be required for the use of the balcony associated with the existing restaurant use (not just development) given that the balcony overhangs the footpath which is in a Road Zone Category 1.

8 The parties agreed that permission would be required for both use and development in this zone.

9 The review site is located within the Toorak Village shopping centre, on the south side of Toorak Road between Mathoura Road and Carters Avenue. The land is developed with a 2-storey commercial building which is used as a licensed restaurant known as "Quaff Restaurant and Events". An existing verandah extends to within about 300mm of the kerbline over the footpath. The restaurant operates under an existing permit[1] which allows seating for:

•

up to 86 patrons until 6pm and 127 patrons after 6pm on weekdays;

•

127 patrons day and night on weekends.

10 There are at present 4 dining areas on the premises - inside at ground level, on the footpath, within an upper level terrace at the rear (up to 28 seats) and inside at first floor level (up to 23 seats). The first floor dining room may only be used in the evenings and on weekends.

11 Surrounding properties in Toorak Road are used primarily for commercial purposes including specialty shops, cafes, restaurants and offices. Most buildings lining Toorak Road are 1 to 2 storeys in scale.

12 A particular feature of development in Toorak village is the presence of Tudor revival styles buildings which have been classified by the National Trust. These buildings are located at No.'s 451 to 457; No.'s 475-479; No.'s 476 to 478 and No. 541 Toorak Road.

13 Immediately abutting the site to the east at No. 440 Toorak Road is an ANZ bank while to the west (No. 434) is a shop at ground floor and dwelling above.

14 At the rear, immediately south is a car park while residential development continues further south again.

15 Toorak Road is an arterial road operated by Vic Roads. The footpath is managed by Council who issues permits for outdoor seating and the like, while air-rights over the footpath are managed by Vic Roads.

16 This proposal is for the construction of a first floor balcony which will extend the full width of the frontage - a distance of 6.12m. The structure will involve either re-use or full re-construction of the existing verandah.

17 The plans considered by the Council indicate that the balcony would have a depth of 2.25m - being offset about 300mm from the kerb resulting in an additional 13.7sq.m of floor space. Glass balustrades proposed at a height of 1m would encircle the balcony.

18 The applicant proposes placing up to 12 seats on the balcony by re-allocating existing seats approved under the current planning permit. I understand from submissions made by Mr Crawford that when functions are held, the balcony could be used by patrons of that function in conjunction with the first floor dining area.

19 Other works include the replacement of two windows on the front façade with bi-fold doors to allow balcony access.

20 The restaurant premises itself is within a Business 1 zone. A planning permit is required for buildings and works - in this case that permission relates to the new bi-fold doors.

21 As I have mentioned, Toorak Road including the footpath area is within a Road Zone Category 1 ("RDZ1"). A restaurant use requires a planning permit and buildings and works associated with such uses also require planning permission. The purposes of this zone are:

To implement the State Planning Policy Framework and the Local Planning Framework, including the Municipal Strategic Statement and local planning policies.

To identify land which has been acquired for a significant proposed road.

22 There are no overlay controls affecting any of the land.

23 There were a number of State planning policies referred to at the hearing and I have taken them into account.[2] I note that Toorak Village is identified as a Major Activity Centre under the reference document Melbourne 2030.

24 Local planning policies of most relevance are to be found at:

•

Clause 21.03 - Vision;

•

Clause 21.03-3 - Strategic framework plan;

•

Clause 21.05 - Urban environment and character;

•

Clause 21.09 - Retailing areas viability;

•

Clause 21.10 - Identity of commercial areas, their focus and residential interface;

•

Clause 22.02 - Urban design policy;

•

Clause 22.09 - Retail Centres Polic.

25 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering permit applications. Of relevance are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

26 I was referred by Ms Neumann to strategic work being under way as part of a draft Structure Plan for Toorak Road.[3] One finding relevant to issues/key findings and opportunities in the retail core is to:

Utilize air rights and below ground area to enable appropriate balance between amenity and supporting infrastructure and capacity building.

to encourage an appropriate built form, including facilitating air rights development where its impacts on the public realm can be minimised and it enables enhancement of infrastructure, activity and quality of pedestrian spaces.

27 The use of air rights was said to weigh in favour of this proposal. I note that this draft Structure Plan is in its infancy and is not part of the planning scheme. I therefore cannot regard it as a seriously entertained policy at this stage. Even if I could, this document cautions the need to minimise the impacts on the public realm whilst also enhancing activity and the quality of pedestrian spaces - matters for consideration that I regard as relevant in the context of existing planning scheme policies and to which I will return.

28 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

29 Both Mr Murray and Mr Crawford referred me to a number of Tribunal decisions in support of their respective positions. Mr Murray relied upon:

•

Gardner Group Pty Ltd v City of Port Phillip [2001] VCAT 608;

•

Webb Management v City of Port Phillip [2002] VCAT 1568;

•

Stafford v Stonnington CC and ors [2001] VCAT 500;

•

Enterprise Pharmacy v Colac Otway SC [2005] VCAT 933;

•

Kaczmarski v Stonnington CC [2002] VCAT 2270.

30 I have taken into account these decisions in reaching my findings on this proposal.

31 In giving her evidence, Ms Neumann also referred to and supported a modified plan of the balcony with lesser proportions than that which was refused by the Council. Although there was some confusion about the proposed modifications to the balcony dimensions and the existing footpath width, by the conclusion of the hearing I was told that the balcony could have depth of 1.5m, it would be offset at least 750mm from the kerb line and the width of the footpath pavement is presently 2.75m.[4]

32 I have taken into account the proposed modifications.

Does this proposal enjoy zoning and policy support?

33 It was Ms Neumann's evidence that the installation of the balcony would be consistent with the purpose of the Business 1 zone whose purpose includes the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. While one of the purposes of the Road Zone is to identify significant existing roads, which Toorak Road is, she contended that land in a Road Zone is used for a range of purposes including verandahs, kerbside seating, signage, and awnings. Ms Neumann contended that the use of a balcony as proposed would not be inconsistent with these other examples.

34 In forming my view about this issue it is relevant that the balcony is primarily situated in the Road Zone. This is not to say that the provisions of the Business 1 zone are irrelevant given that access between the building and balcony would occur. But rather I attach more weight to the provisions of the Road Zone given the balcony's location within this zone.

35 In relation to the zone purpose, it is true that this proposal would be inconsistent with the purposes of the Road Zone - Council's first ground of refusal. It would be wrong however to conclude that such proposals should never be permitted in a Road Zone Category 1. As Ms Neumann correctly observed land in a Road Zone may be used for a variety of purposes unrelated to its role as a road. I do however agree with the Tribunal's findings in the Webb Management case that there are limits to the use of the public realm - but I think that is ultimately a question of degree in each case.[5] In this instance the balcony's use would have visual implications which I find is problematic for reasons to which I will return.

36 In terms of road safety considerations, in addition to State and local policies and the matters set out at Clause 65 of the Scheme, when deciding on permit applications in the RDZ1, decision makers are required to consider the following guidelines:

•

The views of the relevant road authority.

•

The effect of the proposal on the operation of the road and on public safety.

37 Importantly, neither Council, Vic Roads nor the objectors sought to pursue submissions that the proposed balcony is inappropriate on traffic safety grounds. Ms Shpigel confirmed that Vic Roads' earlier concerns in relation to traffic safety could be adequately addressed with appropriate conditions on any permit issued. She referred to a VicRoads internal policy document on the issue verifying this position.[6] Such conditions include:

•

offsetting the balcony from the kerb by a minimum of 750mm;

•

provision of a balustrade or barrier to a height of 1.8m around the balcony;

•

the submission of detailed plans to Vic Roads for approval;

•

entering into a lease or license agreement with Vic Roads to cover such matters including indemnification of Vic Roads for any claims or liability, maintenance of public liability insurance and the applicant's duties in relation to use of the road reserve and maintenance of the balcony.

38 One of the purposes of the first condition is to minimise the risk of large vehicles accidentally making contact with the balcony structure. While there remains a risk, I accept that this is ultimately capable of management with appropriate measures as proposed by Vic Roads.

39 In relation to the proposed 1.8m high balustrade, Ms Shpigel submitted that this is necessary to reduce the risk of objects being either thrown or accidentally falling onto the road reserve below.

40 It was Mr Crawford's view that the ultimate height of the balcony was a matter that ought to be the subject of further negotiations with Vic Roads potentially allowing the balustrade height to remain at 1m. It was also Ms Neumann's evidence that from a diner's amenity perspective, it would be undesirable to be surrounded by balustrading up to 1.8m in height.

41 I agree with Mr Crawford that this is a matter that could be the subject of further negotiation with Vic Roads. I do however give substantial weight to the views of Vic Roads in relation to safety issues, given that they are the relevant authority responsible for the management of Toorak Road in this instance. Notwithstanding, the height of the balustrade would not alter my final conclusions about the visual impacts of this proposal for reasons I will explain shortly.

42 From my review of policies there are essentially a number of key themes that emerge. In broad terms local planning policies, which generally complement the thrust of statewide policies:

•

Seek to ensure that existing retailing centres remain viable.[7]

•

Recognise the importance of maintaining a balance and mix of uses in retailing centres as distinct from a dominance of uses such as restaurants and licensed restaurants in activity centres.[8]

•

Identify a retail hierarchy which designates Toorak Village as a "Group 3 - Neighbourhood Centre" below other larger centres which are described as being "Regional" (including Chapel Street-Toorak Road) or "Sub-regional" (Glenferrie Road). The primary role of Neighbourhood centres is described as being:[9]:

Larger local centres, catering for both local everyday needs and wider specialty markets. Retail should be the predominant use of ground floor premises with complementary office and service uses above. The scale and type of future development should be consistent with the centre performing a local role.

•

Seek to manage the effects of activity associated with commercial uses at the interface with residential areas, including impacts arising from late night patrons of entertainment venues and licensed premises;

•

Encourage a high standard of urban design that is respectful to the existing character and streetscape.[10]

43 These policies variously fall into two categories - use based implications of proposals and design related considerations. I propose to deal with the first of these here before returning to a detailed discussion of the visual impacts of this proposal upon the streetscape.

44 In use terms, it was Ms Neumann's evidence that the proposal would assist in adding to the life and vitality of Toorak Village. The balcony's use was also said to improve opportunities for surveillance of the street, allow more effective use of the premises, better floor space circulation such as access to bathroom facilities and provide patrons with a dining experience and level of ambience not otherwise available. Ms Neumann also expressed the view that the use of the balcony would potentially limit the use of the outdoor terrace at the rear on the first floor level and thus the prospect for noise nuisance to impact upon residents living in neighbouring dwellings. These outcomes were said to be consistent with relevant local policies.

45 In terms of policy based use arguments, my first observation is that there are no specific policies either in support of or which discourage the provision of balconies overhanging footpaths. Nor do policies actively encourage a dominance of restaurant uses in activity centres or the establishment of such uses above ground level although it is relevant that this is an existing use at both levels of the building and no intensification is sought.

46 What is apparent however from my reading of relevant State and local policies is the emphasis on activity that enhances the economic viability of centres as a whole with benefits deriving, in this case, to local communities, and with improved choice of goods and services within vibrant centres. The viability of individual businesses will of course impact upon the viability of centres as a whole and policies do not seek to undermine the viability of businesses per se. A balance does however need to be struck between competing interests - including the interests of private individuals seeking to use and develop land on the one hand and that of the broader community on the other. Indeed it is a fundamental planning principle that uses should handle amenity impacts on the site while minimising adverse external effects.

47 In the present case, I am not persuaded that this proposal will result in an outcome which achieves a net community benefit - a matter which decision makers are required to consider when balancing conflicting objectives.[11]

48 In use terms, this proposal will no doubt offer a different dining experience to patrons than that which is presently available. It will provide an outdoor experience while offering a degree of privacy not available at footpath level. On the face of it there is nothing inherently problematic about that outcome, except that this proposal for reasons I will shortly explain, will, with its reliance upon air space in the public realm, detract from the streetscape character of this centre at a cost in visual amenity terms to the community.

49 In addition, as well as detracting from the visual amenity of the centre, I am not persuaded by arguments that this proposal will bring benefits to the centre at ground level in terms of improved surveillance and added vitality and activity at street level. I consider that the physical characteristics of the balcony with balustrading and its elevated location would be such that these outcomes are more likely to be achieved by the use of the footpath area by pedestrians and patrons seated in this area and by people driving past or using the tram.

50 Nor were arguments advanced that this proposal is somehow necessary to ensure the viability of the premises or the centre. Indeed the impression I gained during my inspection which I conducted at around 2:30pm on Thursday 28th December, is that this premises and the centre as a whole is vibrant and successful.

51 While approval of this proposal may well provide this business with a competitive edge that differentiates this premises from others, that may in turn raise the expectations of other venue operators at the centre to seek permission for the construction of similar structures. Although ultimately each application must be considered on its merits, I think the approval of this proposal has the potential to set an undesirable precedent on visual amenity grounds as submitted by Mr Murray and Mr Gilels - a matter to which I will return.

52 I am also not persuaded that this proposal will bring amenity benefits to neighbouring residents by shifting activity away from the existing terrace at the rear. In the first instance, Ms Neumann confirmed that while amenity related problems with residential neighbours had arisen under the management of the previous venue operator, no such amenity related problems had arisen under the present management arrangements. In addition, when I asked him, Mr Crawford was not supportive of reducing the number of chairs and tables permitted in the terrace area - a position which is understandable in terms of allowing flexibility of seating arrangements.

53 The addition of new floor space beyond the site's title boundaries together with the maintenance of existing patron numbers, does not in my view support Ms Neumann's contention that this proposal will result in a more effective use of the premises within the context of the policy at Clause 21.09-3 which states:

•

Encourage the more effective use of all commercial land and buildings, including the re-use or redevelopment of land and buildings that become vacant, and the full use of upper floors for retail, office or residential use depending on the location.

54 On the basis of these findings I am unable to conclude that this proposal draws support from relevant policies but nor does it offend them to the extent that refusal is warranted.

55 Rather, it is the visual impact of the balcony that I find is fatal to this proposal and to which I now turn.

Would the balcony have an adverse impact upon the Toorak Road streetscape?

56 All parties opposed to the proposal expressed concerns with the visual impact of the balcony. Mr Murray described it as an unwarranted intrusion in the public realm, compromising the village atmosphere of the centre including the unique Tudor built form.

57 Ms Neumann on the other hand relied upon the diverse architectural styles of existing commercial premises and the absence of any heritage overlay controls under the Planning Scheme in relation to the Tudor building styles as justification for the proposal. It was also said that the transparent nature of the balcony's balustrade would ensure that the structure would not have a dominant appearance. The presence of two other balcony structures nearby was also referred to in support of the proposal - a 1m x 3.6m structure at the "M Bar" at No. 448 Toorak Road and a 1.5m wide glazed structure partly along the façade of a commercial building at No. 414 Toorak Road. Thus it was contended that this proposal would not represent the first intrusion of this kind at the centre.

58 Based on my inspection of the area, it is true that there is a mix of building styles. Despite their limited number I find that the Tudor revival style buildings being dispersed location along Toorak Road do stand out as a particular feature giving the centre a certain unique 'village feel'. While they are certainly important contributory elements to the centre's ambience and character, I do not however rely on the presence of these buildings alone as a reason to refuse this development.

59 Despite the diversity of architectural styles, I think the more important and striking feature of development at the centre is the presence of cantilevered verandahs together with void space above relatively free from the clutter of above verandah signs (sitting atop verandahs) or other incursions. In addition, where verandahs are not present, front façades are also uncluttered, which tends to accentuate the vertical form of these buildings and the architectural detailing of their facades (such as Vintage Cellars premises at No. 481; the Commonwealth bank building on the south-west corner of Toorak Road and Carters Avenue and the Tudor style buildings). Where bay windows are part of the façade treatment of Tudor style buildings, they are minor in depth and read as part of this particular architectural theme.

60 I consider that the balcony with its balustrading whether at a height of 1m or 1.8m together with chairs and tables would tend to interrupt the particular streetscape rhythm which is evident here. These proposed features would create a sense of clutter above the verandah line, filling this void zone with incursions that are uncharacteristic at this centre. While I accept that the balustrading is to be glazed and that it may be to a height of 1m rather than 1.8m, it will nonetheless have a degree of reflectivity. The reflectivity associated with this structure together with chairs, tables and people behind will also tend to bring these incursions uncharacteristically closer to the road edge. This would disrupt the existing pattern of development which presently sees buildings either stepping back behind verandahs at the upper level or in the case of buildings without verandahs, rising vertically at the title boundary - well behind the kerb line. Although I accept further permissions may be necessary, the prospect of other incursions being introduced onto balconies such as outdoor heaters or sun shading devices is I think very real, which add to my concerns.

61 I do not believe that the two examples referred to at No. 448 and 414 Toorak Road can be relied upon in support of this proposal. In relation to No. 448, none of the parties were able to confirm whether this structure lawfully exists as no documented planning permission for it could be found. Notwithstanding, I accept that this is an existing structure - a fact that cannot be ignored. It is however much smaller in dimensions than the proposal before me and does not have the presence or visual impact that this proposed structure would have.

62 The building at No. 414 was built in the last 4 years or so with Council approval. Office suites appear to occupy the upper level. Plans of the building tabled at the hearing by Mr Murray indicate that only one door provides access to the balcony structure from inside the building although my inspection from footpath level only suggests that a window rather than door has been installed. None of the parties, including Ms Neumann and Mr Gilels, had seen people use the balcony. Even if internal access is available and my observations and those of others are incorrect, this balcony has an open quality, reads as a fully integrated part of the architecture of this building's façade, is associated with an office use which is of a lesser intensity than a restaurant and is free of the clutter of tables and chairs. These are important factors that distinguish this structure from the proposal.

63 I conclude therefore that the development would adversely impact upon the existing streetscape character, contrary to policies such as the Urban Design Policy at Clause 22.02 whose objectives relevantly include:

•

To ensure the design and scale of new development makes a positive contribution to the built form of the area and is respectful to the existing character and streetscape. ...

•

To ensure the use of materials and form of construction respects the character of the area.

•

Use and development maintain the character of the area

64 Similarly, policies at Clause 22.09 seek to ensure that:

•

The proposal retains the individual character of the centres, while complementing the area as a whole, that is: ...

s Predominantly retail, catering for everyday and some specialty needs, with a unique 'Tudor' built form character, in Toorak Village. [Tribunal emphasis added]

65 I have mentioned the prospect that approval of this development may set a precedent for future similar proposals - just as arguments have been advanced in favour of this proposal by reference to the two other structures at No.'s 414 and 448 Toorak Road (although unsuccessfully in this instance).

66 On this issue of precedent I agree with the Tribunal's conclusions in the Gardner Group decision:

[25] We are particularly concerned about the precedent which would be set. If `above the footpath' open air dining was thought to be acceptable in this instance, there are likely to be further applications: it is a relatively inexpensive way to add to restaurant floor space. Future applicants would rely heavily on the grant of this permit - if it were to be granted. If there were to be a proliferation of such `above the footpath' dining areas in Acland Street, it would quite radically and adversely alter the character of the street.

67 If there were to be a proliferation of above footpath dining structures at Toorak Village, I too conclude that the creation of a different streetscape character would occur. Indeed I observe in passing that the introduction of new tobacco laws which take effect on 1 July 2007[12] may also become the impetus for similar applications - in addition to reasons I have already explained - namely that other restaurant operators may seek to match the competitive advantage that this proposal is likely to bring the permit applicant.

68 If changing the centre's character is an outcome that the Council wishes to encourage, policies ought to give expression to that outcome. That however is simply not the case here at the present time - it is the existing character of the area which is to be maintained under the current planning policy framework.

69 For the reasons I have set out, the decision of the Responsible Authority is affirmed. I will direct that no permit is to issue.

[1] Permit No. 349/03 issued on 28 May 2004 at the direction of the Tribunal by consent of the parties in Applications for Review P1001/2004 & P1285/2004

[2] These statewide policies include Clause 11 (Introduction), Clause 12 (Metropolitan Development); Clause 14.01 (Planning for Urban Settlement), Clause 18.01 (Declared highways, railways and tramways) and Clause 19.03 (Design and built form).

[4] I note that a balcony offset 750mm from the kerb would have a depth of 2m rather than 1.5m. Notwithstanding, I have taken into account the various possible scenarios in relation to the balcony's width in reaching my findings.

[6] Document titiled "RSM Network Policy Information Document. Last modified 12/10/2006"

[11] Clause 11.01 of all planning schemes including the Stonnington Planning Scheme.