Lebedev v Frankston CC [2013] VCAT 1953

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the permit applicant name to:

1. Leave is given to the applicant to substitute for the permit application plans, the following plans:

1. The decision of the responsible authority in relation to permit application no. 124/2012/P is affirmed, no permit is granted.

Ms Tania Cincotta, solicitor of Best Hooper. She called the following witnesses:

• Mr David Crowder, town planner of Ratio Consultants Pty Ltd.
• Mr John Patrick, landscape architect of John Patrick Pty Ltd.

Ms Adrianne Kellock, town planner of Kellock Town Planning Pty Ltd.

For Long Island Residents Association and Ms Hilary Poad

Mr Richard Umbers, town planner of Peninsula Planning Consultants.

No appearance. Ms Kellock tabled an additional letter from Mr and Mrs Smith at the hearing in their absence.

Construction of two, nine metre high, three storey, attached townhouses to connect to an existing 9.14m high dwelling. The two new dwellings will face Gould Street. Vehicle access to one of the dwellings will be to Mary Street.

The existing dwelling will be renovated and enclosed at ground level. At first floor the façade is modified and partly brought closer to Mary Street. The first floor balustrade and deck is reconstructed and glazed rather than open balustrade put in place. At second level, the balustrade is also amended.

Application under Section 77 of the Planning and Environment Act 1987.

Cl 32.01 - 4: Construction of more than one dwelling on a lot.

Cl 43.02 (Schedule 6): Construction of more than one dwelling on a lot.

Clauses 11, 12, 13, 15.01, 16, 21.04, 21.05, 21.07, 21.10, 22.08, 52.06, 32.01, 43.02, 55 and 65.

The site has 18.16m frontage to Gould Street and 30.48m frontage to Mary Street, comprising 547 sqm. The land is generally flat and contains an existing 3 storey dwelling comprising a ground floor open carport and utility area, first floor living area and part third level that extends out from the second level pitched roof form at the south west corner of the site.

I inspected the site unaccompanied after the hearing on 6 November 2013.

1. Dr Lebedev applied to Frankston City Council for a planning permit to construct two additional dwellings on a lot where he has an existing 9.14m high dwelling. He also intends to renovate the existing dwelling to form three attached dwellings on the land. Frankston City Council has refused to grant the permit, a decision that a number of adjoining and nearby landowners support. Dr Lebedev has subsequently requested the tribunal to review the decision of Council.
2. From submissions and material presented I find the key questions I need to address in this review are:

1. Does the proposal adequately address its site context? 2. Does the proposal adequately address its off site amenity impacts?

1. Will the proposal result in additional car parking problems in Mary Street?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Frankston Planning Scheme, I have decided to affirm the decision of Council and direct that no permit issue. My reasons follow.

Does the proposal adequately address its site context?

1. The starting point to any assessment of more than one dwelling on a lot in a Residential 1 zone is whether the design response adequately addresses its neighbourhood character and site context. This requires consideration to the physical attributes of the area and the policy context in which the site sits. In this case, it also requires consideration of the design and development overlay that applies to the site.

1. Ms Cincotta, relying on evidence of Mr Crowder, contended that whilst Council has a new housing strategy that identifies this site as in a location of minimal change, I should have little regard to this given it is not yet a seriously entertained planning scheme amendment[2]. Rather, she submitted I should place greater weight on the proximity of this site to the business centre of Frankston and its associated transport and community infrastructure, where State policy directs more intensive housing should be encouraged.
2. The site is located in walking distance to the city centre, but it is also identified in existing provisions of the Municipal Strategic Statement (MSS) within the Frankston Planning Scheme as an area of possible future coastal inundation and an area of potential coastal acid sulphate soil[3]. It is then not identified in an area where higher densities are encouraged[4], despite its proximity to the city centre. I therefore find, regardless of the potential designation of the site under the housing strategy[5], existing policy direction already indicates caution should be taken in intensifying development in this location. Whilst it is general planning policy to direct more intense housing to locations close to activity centres, specific local conditions can lead to more directed policy about where such intensity should be encouraged. The existing local planning policy does not include the long island area in the areas encouraged for designated higher density housing. As Mr Umbers also noted, this designation of where higher density housing should be encouraged was implemented through Amendment C85 that was approved by the State Minister for Planning in 2012.
3. I therefore find this is not a site where, in balancing competing needs, broader state directive to increase housing density close to activity centres overrides, or significantly diminishes, the locally specific directions of environmental protection and neighbourhood character.

1. The need to ensure new development addresses character and its site context is emphasised through the application of Design and Development Overlay - Schedule 6 to the site. This overlay applies to a relatively broad area of the coastal environs of Frankston. It includes relevant objectives to:
   • Ensure that building height and bulk are compatible with and enhance the appearance and preferred character of the locality
   • Encourage buildings that respect the environmental qualities of the coastal area, the environs of Kananook and Sweetwater Creeks and nearby nature reserves, particularly through appropriate siting, site coverage, fencing and landscaping.
2. The overlay then requires specific consideration for development that is over 7 metres high. It prohibits development over 9 metres high in this area, unless it is modification of an existing building that is over 9 metres high. This overlay emphasises the Council position as to the preferred built form for this area.

1. The site sits at the south west corner of Gould Street and Mary Street.
2. Gould Street is a long narrow street that runs along north / south along a sand ridge parallel between the Kananook Creek and the Port Phillip Bay foreshore. This geographic feature means houses on both sides of the street tend to face away from the street, toward the creek or the foreshore. I therefore agree with Mr Crowder's evidence that Gould Street is not one that has a dominance of front garden street setting. Rather it is dominated by garages, higher fences and often small front setbacks. This is particularly noticeable further south along Gould Street and directly east of the site where the short block depth between the Kananook Creek and Gould Street necessitates buildings to be close to the street. This has led to a number of properties on the east side of Gould Street with small 2 to 3 metre front setbacks. On the west side the setbacks appear to be generally more generous and often have a more garden type appearance, although I agree that often there are still high fences and garages, rather than a traditional garden setting. Dwellings range in height, but appear to generally sit at or below 7 metres. Some properties include taller form, such as that being developed at 107 Gould Street. The dominant built form however, remains at or below 7 metres, even in this development.
3. Mary Street is a small side street providing pedestrian access to the beach. In contrast to Gould Street it does have a vegetated feel, both in the road reserve and in the front gardens of the four properties that face the street. Here the other three dwellings are single storey or have low profile two storey form. The existing dwelling at 114 Gould Street is significantly higher and the most dominant due to the height of the roof pitch. The section that is clearly three storey extends out at the rear, side corner of the property so it is well setback from both the Gould Street or Mary Street frontage. It has coastal vegetation (both native and introduced) surrounding the existing dwelling. Overall I find the Mary Street setting to be more intimate and a low key garden setting, even with the existing dominant dwelling on the subject site. In Mary Street the preferred character attributes of an informal and coastal garden setting are more identifiable.

1. The most pressing concern about this development is the height and bulk of the proposed two additional dwellings, along with alterations to the existing dwelling that leads to extensive form that is two and three storeys high. Council and objectors all raised concern that the proposal is too intense for the site context resulting in a built form that is not consistent with the preferred neighbourhood character of the area and, in turn, the objectives of the Design and Development Overlay affecting the site. This relates to the extent of building form over 7 metres high, particularly the dominance of vertical fin walls close to street setbacks. It also relates to the two storey facades to both Gould Street and Mary Street and the overall site coverage
2. Mr Crowder's evidence was that the building form was acceptable as the existing neighbourhood character was eclectic and a place where a change in character should be expected due to the proximity to the city centre and therefore, despite local policy, a place where more intensive housing should be expected. I have already determined above (paragraph 7) that I do not share Mr Crowder's view that this is a location where the balance of policy directs more intensive form over consideration of other matters.
3. The preferred neighbourhood character[6] is to maintain the informal seaside setting of dwellings with coastal planting strengthened. The objectives for Frankston Precinct 10[7] include ensuring buildings and extensions do not dominate the streetscape.
4. As Mr Crowder identified, the development is proudly contemporary and I agree is a style that is consistent with newer form in the area. It is the overall bulk of form that I find concerning. This derives from a combination of the height, setback and facade to the streets as well as the site coverage.
5. Mr Crowder's evidence was that the third level, to nine metres was acceptable provided the second level roof line to Gould Street reduced in height. He acknowledged this would expose the third level but enabled the dominance of the fins and projecting balconies to read as a two storey form, with the overall dominant façade being a conventional 6.4m two storey wall height rather than the proposed 7.4 metre wall height. In either proposal the overall proposal is clearly a 9 metre high, three level scheme.
6. The proposed interface to Mary Street is to enclose the existing under croft car park area of the dwelling to form a new 2 - 3 storey height of the facade that will sit approximately 2 metres from the Mary Street boundary for an extent of over 22 metres, albeit with some recessed elements and balconies. This includes a new double garage door near the existing carport that will be transformed to a new garage door that will be significantly larger and higher to enclose the existing under croft space.
7. The Design and Development Overlay plainly directs that development over 7 metres high should only be accommodated to address a specific architectural feature or assist in achieving the preferred neighbourhood character objectives. Mr Crowder's evidence was that the development height will be compatible with and enhance the appearance of the preferred character of the locality. With this his evidence was that the height was justified because it will not offend or compromise the achievement of the preferred neighbourhood character.
8. My reading of the Design and Development Overlay provisions do not simply require height above 7 metres to be accepted on the basis that it will not offend the preferred character. The Design and Development Overlay has specific decision guidelines for deciding on an application for development that exceeds 7 metres in height. Relevantly, these include:
   • The need for a particular roof form or architectural feature that assists in achieving the preferred neighbourhood character of the area, or the objectives and design responses contained in the relevant Neighbourhood Character Study Character Statement in the precinct brochure for the area;
   • Whether the height assists in achieving the preferred neighbourhood character of the area, or the objectives and design responses contained in the relevant Neighbourhood Character Study Character Statement in the precinct brochure for the area;
9. Nothing was put to me that the third level is needed to achieve a particular roof form or architectural feature that assists in achieving the preferred neighbourhood character of the area. In either the application plans or Mr Crowder's alternative scheme, the design is clearly for a three level form to achieve more accommodation on the site not to provide a specific architectural response that is needed to achieve the preferred character.
10. Whilst the existing dwelling is just over 9 metres, it is clearly the anomaly in the immediate street context and not a preferred or predominant character of the area. I do not see that the predominant elements of the preferred character in the area seek building form of the height, scale and bulk proposed for this site. My review of the policy and preferred character is that a lower profile form is preferred. As Ms Poad put, this proposal will clearly 'stand out amongst the herd'.
11. I therefore find no reason to accept the height over 7 metres, or the third level of development proposed.
12. Further I find the dominance of form is emphasised by the extent of building facade, that is close to the street, particularly to the Mary Street interface. This is emphasised by the larger than standard double garage door proposed for the existing house, along with a new, different sized door for the new dwelling to face Gould Street and the fin wall that extends up to 9 metres between the new dwelling in Mary Street and the existing dwelling.
13. Even at two storeys I find the street interface to Mary Street too dominant and not sufficiently respectful of the more low key and landscaped nature of this small street. This is due to the intensity of the form close to the street, that is emphasised by the height and scale. Whilst some landscaping is proposed, it cannot diminish the extent or dominance of form to this lower key aspect of Mary Street.
14. The Gould Street interface at two levels I find is less problematic, but I do share Council's concerns that the two storey fin walls, close to the street frontage to this interface also add to the vertical dominance of the form. Whilst there was some detailed debate in the hearing as to whether the street setback was compliant with the relevant standard of Clause 55.03, it is the overall scale of form so close to the street I find problematic. Whilst two storey form exists in Gould Street, and is sometimes closely set to the street (such as under construction at 107 Gould Street), this western side of Gould Street maintains a generally more recessed double storey form.
15. In short, I find there is simply too much built form on this site to achieve the objectives of neighbourhood character as articulated in local policy and the Design and Development Overlay affecting this site. This is emphasised in the overall height and dominance of building facades to both streets. As I have already determined I do not see this is a site where accommodating additional dwellings is of such significance that it should outweigh other design provisions.
16. I therefore find the design response unacceptable and therefore will affirm the decision of Council to refuse the permit application. Having determined this issue I do not need address other matters. However, I do provide brief findings on the other main issues raised.

Does the proposal adequately address its off site amenity impacts?

1. The adjoining neighbours to the south submitted the proposal will overshadow and reduce light into their dwelling. Mr Crowder acknowledged in his evidence that the proposal should be amended to better meet Standard B20 in relation to retention of daylight to the light court at 116 Gould Street. I agree that the proposal should better address the provision of light to this space. Had this been the only issue I agree with Mr Crowder's evidence that it could be addressed by conditions on a permit. However as I have found above it is the broader bulk and height of form I find fails this proposal.
2. The adjoining neighbours written submissions also questions the loss of light into an upper bedroom to the front of their dwelling. This bedroom faces toward the street and I am satisfied will not be unduly impacted by shadow or loss of daylight as a result of the development due to this aspect and orientation of the window.

Will the proposal result in additional car parking problems in Mary Street?

1. Owners or properties in Mary Street submitted the proposal will lead to further stress on parking in Mary Street. This is because the street is very small, has limited room for on street parking due to landscaping in the road reserve, and forms a popular location to access the beach.
2. The proposal meets the parking provisions of the planning scheme. The new crossover would be located where there is already a no standing sign. As such there is no loss of on street parking from the proposal.
3. I find it is not the traffic or parking implications of the second crossover that I find problematic. It is the overall scale and form of the Mary Street façade I find is the failing.

1. I find the overall intensity of form proposed does not adequately meet the tests of Design and Development Overlay 6, along with the preferred neighbourhood character for the area. Further I find no over-riding need to accommodate intensive housing on this site that override the need to meet these tests. I therefore will affirm the decision of Council and direct that no permit issue.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] The Frankston Housing Strategy was adopted by Council in September 2013 and now forms part of Amendment C95 to the Frankston Planning Scheme that commenced exhibition on 31 October 2013. In this amendment the site is identified in an area of minimal change, to which the Neighbourhood Residential Zone will apply if the amendment is approved, as exhibited.

[3] See Clause 21.05 Frankston Planning Scheme.

[4] As identified in Clause 21.07 of the planning scheme.

[6] As identified in Clause 22.08-4 of the planning scheme.