Victorian Civil and Administrative Tribunal|2004-03-05

Kilker v Stonnington CC [2004] VCAT 341 (5 March 2004)

Planning and Environment Act s.77; Residential 1 Zone; Medium density housing; Clause 55 ; Neighbourhood amenity; Noise impact from adjacent railway; Traffic generation; Bulk and height of development.

The construction of twenty three (23) dwellings and associated car parking in accordance with the endorsed plans.

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 be generally in accordance with those circulated prior to the VCAT hearing (identified as Drawing No's TP01 to TP05 inclusive and TP 07, Revision B, dated December 2003 and prepared by Outer Edge Design) but modified to show:

a) On that portion of the site east of Kenilworth Grove provide additional opportunities for planting of screening vegetation on the south side of the driveway in areas not required for vehicle movement.

b) Screening of all upper level south facing windows and terraces in accordance with the requirements of Standard B22 of Clause 55 of the Stonnington Planning Scheme.

c) The section of common property road to the east of Kenilworth Grove designed to allow two-way vehicle movements.

d) A minimum 2.2 metre height clearance to all garages.

e) Any roof top heating or air conditioning equipment to be detailed on the relevant elevations. Any equipment, which will be visible from the surrounding area must be appropriately sited and suitably screened to the satisfaction of the Responsible Authority.

f) A comprehensive schedule of construction materials, external finishes and colours (including colour samples).

g) The finished ground level to AHD of the relocated north-south easement referred to in Condition 10. The easement must be appropriately sited to allow for the discharge of water to the adjoining railway reserve to the north.

h) The finished ground level of the common property road to AHD. The road must be sited below the finished ground floor level of the dwellings and garages to protect them from the overland flow referred to in Condition 11.

i) Deletion of any obstructions in the way of the overland flow path referred to in Condition 11 of this permit.

j) No roofing or permanently fixed shading devices shall be attached to the roof-top terraces.

2 No drainage or effluent shall enter the VicTrack property without prior approval.

3 No excavation, filling or construction shall take place on the common boundary with VicTrack without its prior approval and then on conditions set by it.

4 Entry onto VicTrack land shall be at the discretion of VicTrack and shall be subject to any conditions imposed on it.

5 As the land in question is former PTC (VicTrack) owned land, the sale agreement highlights a s.173 agreement be bound to the property titles stating that prior to any residential use or development on the land:

- soil tests must be carried out to ascertain the existence of biocide or pesticide contaminants and the resultant tests must be certified by a laboratory registered by the National Association of Testing Authorities;

- decontamination measures (if necessary) must be carried out and all costs must be paid by the owner;

- an environmental audit certificate must be issued by the land owner from the Environmental Protection Authority (EPA).

6 No construction or carrying out of buildings and works associated with the development hereby approved shall occur until:

a) A Certificate of Environmental Audit is issued for the land in accordance with Part IXD of the Environmental Protection Act 1970; or

b) An environmental auditor appointed under the Environment Protection Act 1970 makes a statement in accordance with Part IXD of the Act that the environmental conditions of the land are suitable for the sensitive use;

A copy of the certificate or statement must be provided to the Responsible

The Environmental Audit shall be read in conjunction with this permit and all conditions of the Audit shall form part of this permit.

7 The development must be in accordance with the recommendations of the acoustic report prepared by Ms Elizabeth Hui of Marshall Day Acoustics dated January 2004.

8 Before the development starts, a report to the satisfaction of the Responsible Authority prepared by a suitably qualified person confirming that the development achieves a minimum four (4) star energy rating using the Sustainable Energy Authority of Victoria 'FirstRate' system (or equivalent), must be submitted to the Responsible Authority.

9 Before the development starts, a detailed plan for the construction of the common property road, including typical road cross section, must be submitted to and approved by the Responsible Authority. The design and construction of the road must provide protection from overland flow that passes along the common property road to the satisfaction of the Responsible Authority. The plan must include the following:

a) A notation that the entire road is designated as a "No Stopping" area.

b) The provision of signs signifying "Residents Only" or "Private Road" to the satisfaction of the Responsible Authority.

c) The location of street signs and "No Stopping" reminder signs. All signage must be sited to meet the requirements of Australian Standard 172.3.

d) The installation of two (2) sections of different textured driveway material between Kenilworth Grove and Osborne Avenue, to be sited approximately 25 metres from each intersection to the satisfaction of the Responsible Authority.

e) Details regarding vehicle crossings from Kenilworth Grove and Osborne

Avenue. The overland flow path from Kenilworth Grove must be facilitated by the design of the crossings by ensuring that overland flow is directed along the common property clear of the lots and the adjoining properties.

f) Manoeuvrability for service vehicles. The plan must show how the turning movement requirements for a design rigid vehicle (10.5 metres) have been addressed, as required by Clause 56.07-6 of the Stonnington Planning Scheme.

The common property road must be constructed at the permit holder's cost and to the satisfaction and under the supervision of the Responsible Authority. Once constructed, the road must be maintained and managed by the Body Corporate.

10 Before the development starts, the existing north-south easement and Council drain must be relocated to match the new allotment boundaries to the satisfaction of the Responsible Authority. A detailed engineering plan of the drain must be submitted to and approved by the Responsible Authority. The drain must be centrally located within the relocated easement and have a minimum width of 2 metres.

The drain must be constructed in accordance with the approved plan and all works must be completed to he satisfaction and under the supervision of the Responsible Authority. The location of the drain as shown on the endorsed plans must be confirmed by way of a report from a Licensed Land Surveyor, which must be submitted to the Responsible Authority on completion of the drain.

The permit holder must bear the full cost of all works associated with relocating the drain and easement, including those associated with the Responsible Authority supervising the works and checking the plans.

11 A stormwater overland flow path to the satisfaction of the Responsible Authority must be provided through the property from Kenilworth Grove, along the new subdivisional road and "north-south" easement through to the railway land that is located to the immediate north of the site. The north-south section of the overland flow path must remain open and clear of obstructions and must be maintained by the Body Corporate to the satisfaction of the Responsible Authority.

12 All lots must be provided with drainage to the satisfaction of the Responsible Authority. A detailed design for the drainage of the lots and the common property must be submitted for the approval of the Responsible Authority. The design of the drainage must be based on a 1 in 10 year storm recurrence interval to the satisfaction of the Responsible Authority. The drainage must be constructed at the permit holder's cost and to the satisfaction and under the supervision of the Responsible Authority.

13 All drainage works, including the relocation of the north-south easement and drain, and construction of the common property road, must be completed to the satisfaction of the Responsible Authority prior to the release of the "Statement of Compliance" for the subdivision.

14 Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

b) Properly formed to such levels that they can be used in accordance with the plans;

e) Line-marked to designate the visitor car spaces;

15 With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

16 No plant, equipment, service or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.

17 All outdoor lighting must be baffled and / or located to prevent light from the site causing detriment to the locality to the satisfaction of the Responsible Authority. Any vehicle or pedestrian access lighting shall be set at a low level and baffled to prevent light from the site causing detriment to neighbours.

18 Floor levels shown on the endorsed plans must be confirmed. This confirmation must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 1994. This confirmation must be in the form of a report from a Licensed Land Surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the subfloor inspection.

19 Before the development starts, a detailed Landscape Plan generally in accordance with the plans preposed by Eckersley Stafford Design dated December 2003 must be submitted to and approved by the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this permit. The Landscape Plan must incorporate:

a) A survey, including all botanical names, of any existing vegetation to be retained;

b) Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary;

c) A planting schedule of all proposed vegetation including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant;

d) Landscaping and planting within all open space areas of the site;

e) Details of all surface finishes, including pathways and driveways;

f) Street trees within the nature strip/s adjacent to the property;

g) Planting adjacent to 10 Kenilworth Grove in response to consultation with the owners of that property;

All species selected must be to the satisfaction of the Responsible Authority.

20 The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development or at such a later date as is approved by the Responsible Authority in writing.

21 The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the Landscape Plan to the satisfaction of the Responsible Authority.

22 All garbage collection from the development must be managed and conducted so as not to prejudicially affect the amenity of the locality by reason of appearance. The collection of garbage must take place within the site and must only be carried out between the hours of 7.00am to 7.00pm, Mondays to Fridays and 8.00am to 4.00pm on Saturdays. The collection of garbage must not be carried out at any time on Sundays.

23 On-site construction must only be carried out between the hours of 7.00am and 6.00pm Monday to Friday and between 7.00am and 5.00pm on Saturdays. Construction activity must not be carried out at any time on Sundays.

24 The development allowed by this permit and shown on the drawings and / or schedules endorsed to accompany this permit shall not be amended for any reason without the consent of the Responsible Authority.

a) The development does not start within two (2) years from the date of this permit; or

b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this permit expires or within three (3) months after the expiry date.

Mr Jeremy Gobbo QC and Ms Juliet Forsyth of Counsel by direct access. Mr Gobbo called: Mr Phillip Borelli, Planning and Development Consultant, Mr Richard Eckersley, Consultant Garden Designer, Ms Elizabeth Hui, Acoustical Consultant and Mr Stephen Hunt, Traffic Engineer to give evidence.

Ms Roz Wilson, Solicitor and Urban Planner, appeared on behalf of J and L Bellpieri and 31 other objectors. Ms Bellpieri also made an oral submission.

Mr D Tulloch appeared in person and made a brief oral submission in support of his fellow objectors.

Ms Adrianne Kellock, Town Planning Consultant, on behalf of the Stonnington City Council.

1 This was an application under s.77 of the Planning and Environment Act 1987 to review a decision by the City of Stonnington to refuse to grant a permit for the land at 12 Kenilworth Grove to be developed for the purpose of twenty three (23) dwellings and associated carparking.

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

3 Copies of the revised plans had been forwarded to all parties under cover of a letter dated 19 December 2003 detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.

4 Mt Gobbo briefly outlined the nature and extent of the changes.

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

6 In response to a request from Ms Wilson that was not opposed, the Tribunal joined Alan Martin, Marsha and Patrick Nash, and Ruth and Don Watson as parties to the proceeding pursuant to s60 of the Victorian Civil And Administrative Tribunal Act 1998.

7 The subject site is a linear parcel of land with frontages of 15.73 metres to Kenilworth Grove and 23.18 metres to Osborne Avenue. The land has boundaries to the north and south of 203.5 and 201 metres respectively and an area of 5,186 sq. metres and a fall of approximately 5.5 metres from the south-east corner to the north-west corner. It is located approximately 100 metres west of the Gardiner Railway Station on the southern side of the reserve. A steep embankment extends down to the railway line just to the east of the site. There is a 3 metre wide drainage easement along the entire southern boundary and a 2 metre wide drainage and sewerage easement across the site in a north-south direction, approximately 35 metres from the western end of the site.

8 The site was formerly part of the railway reservation. It was rezoned for residential use in the early 1990s under Amendment L7 to the Malvern Planning Scheme and has been used as a plant nursery for about 15 years. An area to the east beyond the subject site will continue to be used for that purpose. Two outbuildings comprising the nursery office and a storage shed are located towards the centre of the allotment and a number of hothouses are situated at the western end of the site.

9 Ms Kellock's written submission on behalf of the Responsible Authority provided a comprehensive description of the adjoining properties noting the Melbourne to Glen Waverley railway line and the associated reserve immediately to the north of the site, the continuation of the existing nursery use to the east, the intersection of Milton Parade and Osborne Avenue to the west and the interface with 53 Osborne Avenue, 10 and 11 Kenilworth Grove along the southern boundary. The neighbourhood character was accurately described as follows:

"The streets immediately surrounding the sites, including Kenilworth Grove, Oxborne Avenue, Glentilt Road and Edgar Street, are largely comprised of detached single storey dwellings that were constructed in the early 1900s. The original housing stock comprises a combination of Federation and Californian Bungalow style dwellings. These dwellings are well setback from the street frontage, on generous sized allotments of approximately 800 to 10002m. Whilst the dwellings vary in style, they incorporate a number of prevailing characteristics including well articulated asymmetrical front facades, substantial portico entrances, hipped pitched roofs, eaves and gable ends. Gardens are well established and incorporate substantial canopy planting.

There has been some redevelopment pressure in the wider area, mainly in the 1960s and 1990s. This has resulted in the loss of some of the original housing stock, particularly at the southern end of Osborne Avenue and in Carroll Crescent, to the north of the site. The replacement housing stock is two to three storeys in scale and comprises a mixture of 1960s flats and recent dual occupancy / multi unit developments. Although the flat developments are bulky and substantial in scale, they do not generally dominate the streetscape as:

street trees assist in partially screening the height and mass of the buildings;

building are well setback form the street frontage - the prevailing setback is approximately 7.6 metres;

front yards usually contain a combination of canopy trees and mature shrubs."

10 The proposal involves the development of infill housing close to transport and community facilities. Of the 23 townhouses proposed, 13 have three bedrooms and 10 have two bedrooms. All dwellings have a double garage and three visitor car parking spaces are provided on site, with an optional fourth space available to the south of Unit 1. The dwellings are arrayed from east to west along the northern boundary of the site with a driveway and footpath along the southern side providing access for vehicles and pedestrians from both Kenilworth Grove and Osborne Avenue. Twelve of the townhouses are three storeys plus a roof terrace and 11 are two storeys plus a roof terrace. The roof terraces are setback from the south side of the dwellings and are accessed by an enclosed stair.

11 Private open space is provided for each dwelling above ground to take advantage of views and the northerly aspect. A communal open space is proposed opposite the entry to the development from Kenilworth Grove.

12 The design of the dwellings can be described as contemporary, with a flat roof profile. The dwellings vary in height and each pair of dwellings is separated by a narrow landscaped strip. The density of the development is one dwelling per 225 sq. metres and the site coverage is 52%.

13 The relevant planning controls were fully set out at pages 12 -17 of the Responsible Authority's submission, which I adopt for the purposes of this determination.

14 The subject application for permit was lodged with the Responsible Authority on 24 March 2003. Following the giving of notice of the application, 48 objections were received. The grounds for objection were summarised by Ms Kellock as follows:

* 3-4 storeys is not compatible with neighbourhood character

* Not in keeping with architecture and style of existing dwellings

* Proposed buildings spaced too close together and not comparable in scale, height and mass to the detached homes in the area

* Two townhouses close to Osborne Ave should be deleted / set back in line with adjoining property

* Additional traffic will add to congestion and safety issues in surrounding streets and lanes

* Will change the no-through status of Kenilworth Grove and increase traffic flow from through traffic

* Nursery traffic will be diverted to Glentilt Road

* Streets are too narrow and with parked cars on either side it is very difficult to gain access to driveways, lanes etc

* Will negatively impact the quiet amenity of this area

* Inadequate infrastructure to support such a density

* Reduced security due to people being able to monitor adjoining neighbour's movements

* The proposed development is open to the train line - this poses a safety risk

* Insufficient on-site facilities such as clotheslines

15 At its meeting on 15 September 2003 the Council resolved to refuse to grant a permit on the following grounds:

"1. The proposed development is contrary to the objectives of the State and Local Planning Policy Framework pursuant to the Stonnington Planning Scheme as it does not respect the existing neighbourhood and residential character.

2. The proposal does not meet the objectives of Clause 19.03 Urban Design and Built Form in that it does not reflect the particular characteristics, aspiration and cultural identity of the community, nor does it enhance the livability, diversity, amenity and safety of the public realm.

3. The proposal does not meet the objectives of Clause 22.02 Urban Design Policy or Clause 22.06 Residential Character, Amenity and Interface Policy in that the proposal is not a sympathetic response to the character of the area.

4. The proposal does not meet all objectives of Clause 55.

5. The proposed development by virtue of its height and limited building separation is not considered to have an adequate level of internal amenity with an undesirable level of overshadowing and a lack of meaningful private open spaces at ground level.

6. The proposed development fails to appropriately respond to all applicable provisions of Melbourne 2030."

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

"1. The proposed development accords with the objectives of the State Planning Policy Framework and Local Planning Policy Framework of the Stonnington Planning Scheme and provides a contemporary development which respects the existing neighbourhood and residential character of the area.

2. The proposal meets the relevant objectives of Clause 19.03 (Urban Design & Built Form) and will enhance the liveability, diversity, amenity and safety of the public realm.

3. The proposal meets the relevant objectives of Clause 22.02 (Urban Design Policy) and Clause 22.06 (Residential Character, Amenity and Interface Policy) and sympathetically responds to the character of the area.

4. The proposed development meets all relevant objectives of Clause 55 (Rescode).

5. The proposed development provides a high standard of internal amenity, in a design and form that is appropriate for this particular site given its adjacency to a rail line. It also provides adequate private open space with appropriate amenity.

6. The proposed development responds effectively to the policy directions and provisions of Melbourne 2030."

17 Subsequent to the hearing the Tribunal inspected the subject site and the surrounding area as well as the grounds of Nos. 10 & 11 Kenilworth Grove and 54 Osborne Street.

18 The principal issues for consideration in respect of this application for review fall into the following categories:

19 As documented in Ms Kellock's submission the site is very well served by public transport, open space and community facilities. It is also extremely well located with respect to shopping centres, schools and medical services. The combination of the foregoing attributes with the Residential 1 zoning of the land and the emphasis in State and Local planning policy on urban consolidation and greater diversity of housing, have meant that the capability of the site for some form of medium density housing has become apparent.

20 The linear nature of the site adjoining a railway line differentiates the subject land from nearby allotments and other potential infill development sites in the surrounding area. Since the use of the land as a nursery began some fifteen years ago, the site has acted as a buffer between the railway and the adjacent residences. The characteristics of the site and the likelihood that any development of the land will employ a contemporary design approach ensure that almost any proposal will continue to be sharply differentiated from the surrounding neighbourhood, which derives its character predominantly from the original housing stock of the Federation and California Bungalow style dwellings.

21 The site will continue to act as a buffer and may even provide an enhanced level of protection from the railway, but that will be substituted with a series of dwellings, some of which will be in relatively close proximity to the northern side boundaries of Nos. 10 & 11 Kenilworth Grove and 54 Osborne Street, though not as close as might be the case in a multi dwelling development on a conventional adjoining allotment.

22 Under the Rescode provisions at clause 55 of the planning scheme, Standard B7 advises a maximum building height of 9 metres. The two storey dwellings have a height of 6.1 metres plus the roof terrace, which has a 1.7 metre high screen and a centrally located stair enclosure taking the maximum height to 9.0 metres. In the three storey dwellings, the majority of the structure has a height of 9.1 metres, but when the roof terrace screening, stairs and balustrades are included, the overall height is 12 metres.

23 The applicant has argued that the roof terraces are required to provide useable open space with a northerly aspect on a narrow site and to keep development as far from the adjoining dwellings to the south. In addition, it was noted that the utility of open space at ground level would be constrained by the shade cast by the 4.0 metre high acoustic wall on the northern boundary buffering the proposed development from the noise of trains.

24 Examination of the elevations and sections revealed that the apparent bulk of the structures is reduced by the setback of the roof terrace on the two storey units on the south side and the south facing rooms of the third floor and roof terrace in the three storey dwellings. In each case these setback elements are screened by 1.7 metre high screens. Thus from viewing points directly opposite the proposed units the upper levels will be barely visible, but they will become evident when viewed from the side. However, with the growth of landscaping much of that view will also be screened in time.

25 My inspection of the surrounding area indicated that there are a number of properties where building heights exceed 9 metres either as a result of the original structure or by means of subsequent extensions. Such maximum heights are usually set well back from the boundaries and often screened by mature canopy trees. I have therefore found that the height and bulk of the proposal is not out of keeping with the surrounding neighbourhood, even though a different type of development will be introduced as a consequence of the form and location of the site.

26 Although acoustical impacts did not form part of the grounds of refusal by the Council, objectors regarded the proposal unsatisfactory due to the impact of railway noise on the internal amenity of future residents and the likelihood that double glazing would require the installation of air conditioning systems that may operate 24 hours per day. Concern was expressed that the breaks between the pairs of units would act like canyons and magnify the noise of trains towards the objectors dwellings. It was also feared that roof terraces would present a major potential noise source from the proposal to the adjoining residential properties.

27 The acoustic report prepared by Ms Hui provided a comprehensive examination of the relevant factors concerning the site and the proposal; noise measurements; a summary of the available criteria; interstate experience; and previous advice to VCAT Tribunals in relation to this issue. Ms Hui summarised her findings as follows:

"A previous VCAT decision relating to a residential development in the City of Stonnington adjacent to a railway line recommended that noise from trains should not exceed 50dBLmax inside the dwellings. This criterion is considered to be extremely stringent and this view is also held by City of Stonnington's consultants, Watson Moss Growcott Acoustics Pty Ltd.

After consideration of sleep disturbance criteria nominated by the NSW EPA, it is recommended that a more appropriate criterion would be for maximum noise levels of trains not to exceed 55dBA in bedroom areas and 60dBA in living room areas.

With the use of appropriate building materials, this criterion can be achieved for the proposed dwellings at 12 Kenilworth Grove, Glen Iris.

With the recommend building envelope construction detailed in Appendix C or equivalent construction option, noise from trains will be audible within apartments but at a level which is considered acceptable." (sic)

The construction standards to be followed to achieve the recommended standards of performance were set out in Appendix 3 to the report under the heading, 'Sound Insulation Requirements'.

28 In relation to the possible amplification of train noise in the breaks between dwellings, Ms Hui stated that the acoustic wall on the north boundary would reduce the noise in the order of 10dBA, while reflection may amount to 2-3dBA,a difference barely able to be perceived by humans and therefore resulting in a net improvement for resident objectors. I have relied on Ms Hui's evidence in relation to these matters.

29 In relation to future occupants use of the roof terraces, no argument was advanced that indicated that such spaces would be used in a manner dissimilar to the way ground level open space is used and the usual neighbourly rules with regard to consideration for others seem likely to apply.

30 I have relied upon Mr Hunt's evidence in relation to the traffic and car parking demands likely to be generated by the site and the impact of those demands on the surrounding neighbourhood given the design characteristics of the proposal. In particular I have accepted that traffic within the site will operate in a low speed environment and that two way traffic, on a residents only basis, will be a viable mode.

31 After considering traffic volumes in the subject streets and Malvern Road, the amount of traffic likely to be generated by the proposed development and the distribution and impact of such traffic, Mr Hunt advised:

"With no more than 10 vehicle movements per hour likely to be generated by the proposed development at any time during the day in either Kenilworth Grove or Osborne Avenue, and with the loss of traffic activity generated by the existing plant nursery from those local streets, the increase in traffic activity in both streets will be minimal and, in my opinion, will not impact adversely on the traffic operating conditions or the general amenity of those streets."

32 In relation to the proposed car parking provision, Mr Hunt stated:

"Based upon the preceding analysis it is estimated that the residents of the proposed development will generate a peak parking demand for 29 to 38 spaces and their visitors will generate demand for an additional 3 spaces at times of peak visitation.

The proposed parking provision of 49 spaces is more than sufficient to accommodate both the Clause 55 and the average or 85th percentile resident parking demands and their visitors."

33 Should additional visitor parking be required I note that the north side of Milton Parade adjacent to the railway reserve at the western end of the site has unrestricted parking sufficient to accommodate any excess demand.

34 The limited amount of planting between the subject site and adjoining residents on the south side of the proposal was a matter at issue in the context of residents concerns regarding visual privacy and overlooking. Planting opportunities are limited by the presence of the Council stormwater drain running along the boundary within the subject site and the need to provide adequate space for vehicle and pedestrian access. While the landscape concept plan prepared by Mr Eckersley provides for planting between the pairs of dwellings and between the garage entrance crossovers, only limited opportunities exist on the south side of the driveway and then only along the western section of the proposal. At the hearing it was suggested that in the eastern portion of the site it may be possible to provide some further planting opportunities in sections along the southern portion of the drive where the turning movements of vehicles will allow.

35 A condition of permit will require the preparation of a landscape plan generally in accord with Mr Ekersley's concept but requiring consultation with the owners of 10 Kenilworth Grove in relation to planting adjacent to that boundary and including details of the roof top planting proposed for the terraces.

36 Council's proposed draft condition regarding garbage collection has been slightly modified to make it explicit that rubbish is to be collected from within the site.

37 In regard to overlooking, I note that the focus of the living areas within the proposed dwellings is directed to the north to maximise both the outlook and the aspect. As a consequence bedrooms and utility rooms, which are not generally places from which outlooks are sought, are to be found on the south side. Having considered the submissions and examined the plans I am satisfied that the screening provided by the design coupled with the requirement to comply with the provisions of Standard B22 of Clause 55 of the planning scheme will ensure that resident's concerns regarding overlooking and visual privacy will be adequately addressed.

38 The shadow diagrams clearly demonstrate that the shadows generated by the development at the equinox are almost entirely retained within the boundaries of the site and do not caused any unreasonable impacts on adjoining properties.

39 In summary I have found that the proposal is an appropriate development of a challenging site with locational attributes that make it attractive for medium density development. The proposal represents a contemporary design, which although different in form, is similar in scale to many developments within the surrounding area. Implementation of the proposed landscape design and the use of an appropriate palette of materials will assist in linking it with the neighbourhood.

40 The proposal is directed to fulfilling significant aspects of State and Local planning policy and does not generate unreasonable off-site amenity impacts that would adversely impact on nearby residents.

Environmental Protection Act 1970

Building Regulations 1994

Kilker v Stonnington CC [2004] VCAT 341

At a glance

Court

Decision date

Source

Judgment (151 paragraphs)

Kilker v Stonnington CC [2004] VCAT 341 (5 March 2004)

Parties

Legislation Cited (3)