Victorian Civil and Administrative Tribunal|2002-08-16

Lazzcorp Brunswick Pty Ltd v Stonnington CC & Ors [2002] VCAT 889 (16 August 2002)

PLANNING AND ENVIRONMENT LIST Application for Review No.P771/2002

Application for Review under S. 77 Planning and Environment Act 1987, Residential 1 zone, Heritage Overlay, Medium Density Housing, Clause 55 Stonnington Planning Scheme, Noise Attenuation from railway, repeat application, proposal modified to respond to Tribunal's earlier decision.

Medium Neutral Citation [2002] VCAT 889

The decision of the responsible authority is set aside. A permit is granted and directed

to be issued for the land at 9-21 Northcote Road, Armadale.

The demolition of existing buildings and the construction of 17 dwellings.

1. Before the development starts, amended 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 the plans submitted with the application but modified to show:

(a) The exterior treatment of the buildings, including details of all exterior decorations, materials, finishes and colours to the satisfaction of the Responsible Authority.

(b) An acoustic fence to be constructed to a minimum height of 2.1m along the boundary abutting the railway reservation in accordance with condition 5.

(c) The boundary fence abutting the railway reservation must be appropriately treated to the satisfaction of the Responsible Authority in order to prevent graffiti.

(d) The minimum height between the floor and overhead obstructions for the basement carpark to be 2.1m.

(e) Plan notation indicating that obstructions to visibility for vehicles when existing the basement carpark (ie fences, on-site vegetation) should comply with AS2890.1-1993 Section 3.2.4.

(f) The submission of a landscaping plan to accord with condition 6.

(g) Disabled access to the ground floor of dwellings generally in accordance with the plan tabled at the hearing of the Victorian Civil and Administrative Tribunal hearing on 24 July, 2002 (ref. no. TP1.08)

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

3. Prior to the commencement of construction, a plan must be submitted to and approved by the Responsible Authority. The plan must be certified by a qualified acoustic consultant and show to the satisfaction of the Responsible Authority the construction details of the noise control treatments as shown on the submitted plans of the application and as recommended by the Marshall Day Acoustics Pty Ltd in the report dated 24 October 2001.

4. The noise control treatments to be undertaken in accordance with condition 3 must respond to the three dot points outlined on page 2 of the report undertaken by Watson Moss Growcott Acoustics Pty Ltd, dated 15 March 2002, to the satisfaction of the Responsible Authority.

5. The acoustic fence along the boundary abutting the railway reservation must have a minimum surface weight of 12kg per m2, be constructed of quality material to prevent warping and cracking, and be buried in the ground to ensure that there is no gap at the bottom of the structure, to the satisfaction of the Responsible Authority.

6. Before the development starts, a landscaping plan must be submitted to and approved by the Responsible Authority. When approved, the landscaping plan will be endorsed and will then form part of the permit. The landscaping plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

* Description of vegetation to be planted including botanical name of the species, numbers of plants, height and spread at maturity and at the time of planting.

* The method of preparing, draining, watering and maintaining the landscape areas.

* The development's compliance with Clause 55.03-4 of the Stonnington Planning Scheme relating to permeability.

7. Before the occupation of the dwellings, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained in a proper and tidy condition to the satisfaction of the Responsible Authority.

8. Before the development is occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

* Constructed to the satisfaction of the Responsible Authority.

* Properly formed to such levels that they can be used in accordance with the plans.

* Surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority.

* Maintained to the satisfaction of the Responsible Authority.

* Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

9. Any existing vehicular crossing made redundant by the building and works hereby permitted shall be broken out and re-instated as standard footpath and kerb and channel to the approval and to the satisfaction of the Responsible Authority and at the permit holders cost.

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

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

* The development is not started within two years of the date of this permit.

* The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Mr I. Pitt SC, Solicitor of Best Hooper Solicitors appeared on behalf of the Applicant for Review.

Mr J. Rantino, Solicitor of Maddocks, appeared on behalf of the Responsible Authority.

Ms. L. Stewart and Mr C. Boucher appeared on their own behalf.

Written submissions were received from M & R Thomson, H. Mack, I. Brown and D. Britten, M. Segal, Dr J. Tovey, D. Evans and P. Meldrum but they did not appear.

1. This is an Application under Section 79 of the Planning and Environment Act 1987 ("The Act") brought by Lazzcorp Brunswick Pty Ltd to review the failure by the City of Stonnington ("The Council") to grant a permit within the prescribed time.

2. The Responsible Authority on 6 May 2002, following the commencement of the application for review, resolved that it would have refused the application on the following three grounds:

"1. The proposal represents a poor design response to noise generated by the railway at the rear.

2. The reliance on mechanical means to limit rail noise will result in unacceptably poor residential amenity for the inhabitants of the dwelling at the rear of the site.

3. The proposed development does not comply with the requirements of the Disability Discrimination Act in terms of access to the disabled."

3. The Council's decision to refuse the application was made notwithstanding an officer recommendation to grant a permit, subject to conditions.

4. On the 30th of July 2002 I handed down an oral decision directing a issue of a permit and giving reasons for that decision. These written reasons are provided to confirm that decision.

5. This application is in effect a repeat application for review following a decision of the Tribunal (constituted by myself) in application for review no. 7781/2001 in July 2001, in which I affirmed the Responsible Authority's decision to refuse a planning permit application for the demolition of buildings and the development of the land for the purpose of 19 dwellings. In my decision on that application for review I made a number of findings in which I found the proposal to be acceptable having regard to its impact on the heritage place, its impact on neighbourhood character, off site amenity impacts, car parking and access/egress arrangements. The Council's decision to refuse the application was affirmed on the ground that I was not satisfied that the noise attenuation proposed in that development was sufficient having regard to the site's proximity to the railway which runs along the western boundary of the site. I regarded the proposed siting of the dwellings as an inappropriate design response to the existence of the railway which I considered to be a constraint to the development of the site.

6. At the commencement of the hearing and following a submission from Mr Pitt SC, I advised the parties that having regard to my earlier findings in application for review 7781/2001, the material matters in this current application for review are confined to:

* The extent to which the proposal has responded to my earlier criticisms regarding noise attenuation from the railway.

* Consideration of the affect of any change to the planning scheme which has occurred subsequent to my original decision. In this respect the Good Design Guide for Medium Density Housing is no longer applicable as a consequence of Amendment VC12 to the Stonnington Planning Scheme which was gazetted on 24 August 2001. That amendment introduced a new Clause 55 into the planning scheme and this clause details the provisions applicable to the consideration of medium density housing applications. Having regard to the fact that the planning permit application was submitted with the Council after 24 August 2001, Clause 55 of the Planning Scheme applies to the application.

7. The significant changes to the planning scheme provisions applying to the current application which arise out of the introduction of Clause 55 are contained in Clause 55.03-2 Building Height objective, standard B7 which imposes a maximum building height not exceeding 9 metres, and Clause 55.05-1 Accessibility Objective, standard B25 which states that:

"The dwelling entries of the ground floor of dwellings and residential buildings should be accessible or able to be easily made accessible to people with limited mobility."

8. I was advised that the Council has also exhibited Amendment C18 which seeks to apply a Special Building Overlay (SBO) over 8,900 properties within the City of Stonnington which are affected by overland flows when the capacity of the stormwater drainage system is exceeded during a one in one hundred year flood event. The proposed SBO affects a small section of the frontage of the review site.

9. Other than the replacement of the Good Design Guide by the Clause 55 provisions, the planning scheme provisions as they relate to the review site are unchanged from those which applied during my consideration of application for review no. 7781/2001. I do not attend therefore to repeat my assessment of the applicable planning scheme provisions in this decision other than to record that the review site is zoned Residential 1 and is affected by a Heritage Overlay (HO130). A permit is required pursuant to Clause 32.01-4 to construct two or more dwellings on a lot and such developments are required to meet the relevant objectives and standards of Clause 55. A permit is also required pursuant to Clause 43.01-1 to demolish or remove a building, construct a building and to construct or carry out works. Decision guidelines under the Heritage Overlay are at Clause 43.01-5.

10. With respect to the State and Local Planning Policy Frameworks, the relevant provisions are contained in Clauses 14, 16, 15.11, 21, 22.02, 22.04 and 22.06.

11. Similarly the subject site and locality description was adequately covered in my original decision in application for review no. 7781/2001 and I was not referred to any significant changes which have occurred to either the site or the locality since that time, save for changes to parking restrictions in Northcote Street.

12. Mr Rantino provided a detailed description of the proposal and the changes to the original proposal which were intended to address my concerns regarding the site's interface with the railway. I adopt Mr Rantino's description of the proposal which was contained in his written submission but I think that the principal changes between the original and the current application can be appropriately summarised as follows:

* A reduction in the number of dwelling to 17 from 19 with 10 dwellings now forming the block of dwellings to the rear of the site which have a direct interface with the railway.

* A reduction in the height of the rear block of dwellings to two storeys (in conformity with Clause 55.03-2 Standard B7).

* Changes to the internal layout and configuration of the dwellings in the rear block, all of which are intended to improve noise attenuation outcomes. These changes include moving primary habitable rooms away from having a direct interface with the railway, and their replacement with secondary habitable room or non habitable rooms, the removal of windows in the western elevation of the rear building and their replacement with terraces incorporating fully glazed sliding windows and doors between terraces and the adjoining habitable rooms.

13. The principal issues which required my consideration in this matter were:

* Whether or not the objective of Clause 55.05-1 and Standard B25 (Accessibility Objective) has been adequately met.

* Whether or not the proposal adequately responds to my criticisms detailed in the decision of application for review 7781/2001 and in particular the acceptability of the proposed noise attenuation measures.

14. With respect to the first issue, it was acknowledged by Mr Rantino that the Disability Discrimination Act which is referred to in the third ground of refusal, does not apply to the consideration of this application because that Act imposes requirements in relation to access to public buildings only. The proposed building in this development is not a public building and as a consequence the standards for disabled access contained in Australian Standard AS1428 therefore also do not apply. Notwithstanding Mr Rantino's concessions in respect of these matters it was his submission that AS1428 ought to be used as a guide or reference point in determining whether the proposal satisfies standard B25 of Clause 55.05-1 of the planning scheme. It was Mr Rantino's submission therefore that on this basis, disabled access ought to be provided in the form of a lift from the basement car park and through changes to the configuration, grades and length of the pedestrian access ramps from the basement car park in accordance with AS1428.

15. I disagree with Mr Rantino's submissions. While I acknowledge that issues associated with disability access are matters which are appropriately receiving increased attention in the community generally, the planning authority has stopped well short of introducing provisions into the planning scheme which require compliance with AS1428 for medium density housing proposals. Standard B25 of Clause 55.05-1 requires only that the dwelling entries of the ground floor of dwellings and residential buildings should be accessible or able to be easily made accessible to people with limited mobility. This requirement is significantly less than the standards required under AS1428, and I am satisfied that the proposal achieves the standard required by clause 55.05-1 especially following the tabling by Mr Pitt of an amended plan at the hearing which provides for improved access to the ground floor of dwellings by people with limited mobility. In the absence of any specific policies included in the planning scheme to give weight to Mr Rantino's submission that AS1428 ought to be used as the benchmark, I am not prepared to apply it.

16. With respect to issues associated with noise attenuation, I accept Mr Fearnside's evidence that an internal acoustic criterion of 50 dba Lmax is capable of being achieved for the rear dwellings and further that this criterion is an appropriate one to adopt.

17. In forming this view I am influenced by the fact that the Council commissioned its own independent advice on noise attenuation matters for this proposal from Dr Richardson of Watson Moss Growcott, who advised the council that a 60 dba Lmax would be an appropriate internal amenity criterion.

18. It was submitted to me by Mr Rantino, Ms Stewart and Mr Boucher that the changes made to the original proposal are tokenistic and that in effect no substantial improvement has been achieved. I think that these submissions were to some extent based on a perception or expectation that a substantial setback would need to be or ought to be provided between the railway and the rear of any residential development on this site to achieve appropriate noise attenuation. I accept Mr Fearnside's evidence however that the effect of increasing the separation distance from the noise source (in this case the railway) by a matter of metres would not be significant in terms of achieving appropriate internal noise standards, and that the proposed design incorporating the changes recommended by him are a significantly superior means by which to achieve appropriate internal amenity standards.

19. It was further submitted that I ought not adopt a 50 dba L max as an appropriate internal amenity criterion. In support of this submission Mr Rantino took me in some detail to the NSW Environment Protection Authority report Environmental Criteria for Road Traffic Noise, upon which both Mr Fearnside and Dr Richardson relied to support their recommended criterion. It was Mr Rantino's submission that this report when looked at in its entirety makes it clear that there are significant variances as to what amounts to acceptable noise levels and that more research is required to compile more definitive information upon which noise level criteria can be confidently developed. Mr Rantino also referred me to the report of the Panel and Advisory Committee on the Airport Transit link: Melbourne Airport Rail Link and to a NSW Environment Protection Authority publication on noise pollution.

20. Having reviewed that material I make the observation that much of the data refers to the effect of noise from traffic sources rather than the more intermittent noise associated with railways. In this context I accept Mr Fearnside's evidence that a criteria based on a Lmax measurement (being the maximum noise level, which is the highest noise level which occurs during any noise event occurring over a particular time period) is a more appropriate measure to adopt than that based on a Leq criterion (being the equivalent continuous noise level, which is the constant sound level over a stated time period which is equivalent in total sound energy to the time varying sound level measured over the same time period, and often referred to as the average noise level measured over a specific time period). Based on Mr Fearnside's evidence I am satisfied that the adoption of a 50 dba Lmax criterion is capable of achieving internal noise levels significantly below the 35 to 40 dba Leq criterion recommended by the EPA documents to which I was referred.

21. I also accept Mr Fearnside's evidence that the vibration from all trains will be within acceptable limits.

22. Finally I do not think that the internal amenity of the rear dwellings in terms of access to daylight and the relationship between habitable rooms and open space, has been compromised by the changes to the original proposal. The internal layouts are in my view satisfactory and, given my findings on the earlier application I think that an acceptable if not a superior internal amenity outcome will be achieved.

23. With respect to permit conditions the Responsible Authority circulated proposed draft conditions as it is required to do, and these formed the basis of submissions I received during the hearing. These submissions assisted me in formulating the conditions which have been included in the order. The conditions which have been included flow directly from my findings which I have detailed above. I have deleted from the Responsible Authority's draft conditions those which sought to amend the proposal to achieve improved noise attenuation and safety outcome, car parking layouts and compliance with AS1428. I have also deleted a proposed condition which sought to impose a requirement that the permit holder advise prospective purchasers of the proximity of the site to the railway and the fact that the EPA's policy Control of Noise from Commerce, Industry and Trade, does not apply. While I acknowledge that a condition of this type is potentially warranted to alert people of particular circumstances about which they may not be aware, the proximity of the site to the railway is not one of those circumstances. Similarly, having regard to the very low internal noise criterion adopted for the design of this proposal, I do not think that a warning about the application or otherwise of the EPA policy is necessary.

24. The decision of the Responsible Authority is set aside and it is directed that a permit issue in accordance with the attached order.

Environment Act 1987

Lazzcorp Brunswick Pty Ltd v Stonnington CC & Ors [2002] VCAT 889

At a glance

Court

Decision date

Source

Judgment (76 paragraphs)

Lazzcorp Brunswick Pty Ltd v Stonnington CC & Ors [2002] VCAT 889 (16 August 2002)

Parties

Legislation Cited (1)