Lighthouse Enterprises McCrae Pty Ltd v Mornington Peninsula SC [2008] VCAT 237

Lighthouse Enterprises McCrae Pty Ltd v Mornington Peninsula SC [2008] VCAT 237 - VCAT 2008 case summary — Zoe

[25]

The review site is located on the southern side of Point Nepean Road, east of Bartels Street. The site comprises two lots and is irregular in shape with a frontage of 41.35m and an area of 1,740 square metres. The site is relatively flat and contains some vegetation, none of which was identified by parties as significant. A disused mini-golf course and associated building is located on the western lot (No 683) and a retail building containing a surf shop and a Thai restaurant is located on the eastern lot (No 679-681).
The site forms part of the McCrae shopping village which comprises a strip of commercial premises located just east of Beverley Road and extending to just west of Bartels Street. The strip includes restaurant, cafe, medical centre, shops, chiropractic centre and two dwellings. Vehicle access to the review site and the centre generally, is via a service lane off Point Nepean Road provided with parallel parking on either side.
On the opposite side of Point Nepean Road is the McCrae foreshore and beach. Directly opposite the review site is the lighthouse with the McCrae yacht club to the north west and the surf club to the north east. The foreshore area contains car parking, toilets and a walking/cycling trail and is vegetated with a varying degree of density.
To the immediate east of the review site is a single storey brick building used as a restaurant and previously occupied as the McCrae general store. A recently constructed car parking area is provided to the rear of this premise via a driveway on the east side accessed from the service lane of Point Nepean Road.
To the immediate west of the review site is single storey brick building set back in excess of 25 metres from the street. This building is occupied by a medical centre and car parking is provided in the front setback accessed via a driveway along the eastern side of the site, adjacent to the review site.
To the rear or south of the review site is a five dwelling development with frontage to Burrell Street. Immediately opposite the southern boundary of the review site is Dwelling 4 of that development which is a two storey building setback 2.7 metres from the common boundary. Dwelling 5 is sited to the south east of the review site and is also a two storey building.
Land to the south west of the review site at 3-5 Bartels Street is vacant, Council-owned land that has been set aside for future car parking and is informally used for that purpose, as indicated by a Council parking sign.
McCrae is one of a number of coastal townships on the Mornington Peninsula. It includes a residential area divided in part by the Mornington Freeway to the south, the McCrae Village strip centre containing the review site, a more recently constructed McCrae Plaza shopping complex about 500 metres to the west, an attractive foreshore and beach containing the McCrae lighthouse, a local historical landmark, together with a picturesque backdrop provided by the range of hills forming the Arthurs Seat State Park to the south east.

[26]

The proposal is to construct a three-storey building to contain four retail tenancies at ground level and seven dwellings at the two upper levels. As shown on the substituted plans, the proposal comprises the following:
- At ground level, 4 retail areas facing Point Nepean Road ranging in size from 168 to 185 square metres. A recessed courtyard area is proposed centrally to the street frontage providing for landscaping and pedestrian access to the apartments. Adjacent to the western boundary, a decked path is shown providing pedestrian access to the rear car parking area and Council-owned land at 3-5 Bartels Street.
- Nineteen car spaces are proposed at the rear of the retail areas. The parking includes six garages and five carports under the upper levels of the building together with eight open car spaces adjacent to the rear boundary. Plant room, bicycle storage, rubbish store, stairs, a lift and an entry to the upper level apartments are also provided at the rear.
- At first floor level, five apartments are proposed. Two of these contain three bedrooms, two contain two bedrooms and one contains a single bedroom. Open decks are proposed facing the street, the western boundary and the rear boundary.
- At second floor level, two apartments are proposed, both containing three bedrooms and with open decks facing the frontage, the western and rear boundaries.
- Elevations show a contemporary design with two sections of skillion roof separated above the apartment entry, extensive glazing to the front elevation, an angled projecting section of timber-clad wall to the west elevation and a mix of external materials and finishes including limestone render, timber cladding, timber and glass balustrades to decks and a Colorbond roof.
The proposal provides two options in relation to vehicle access as follows:
- Option A proposes vehicle access via the Council owned land to the southwest - 3-5 Bartels Street.
- Option B proposes vehicle access via the existing driveway located immediately to the west of the review site on the adjoining medical centre site at 685 Point Nepean Road.

[34]

There is a range of State and local planning policies relevant to consideration of this proposal.[4] The key points we distil from these policies include:
- The Mornington Peninsula has special characteristics and small coastal townships are recognised for their unique character and functions.
- The protection of the valued coastal environment is a key aim and the inter-relationship between the foreshore and the local character of each coastal township is important.
- There is support for focussing future population growth in major towns.
- A diversity of housing choice is sought and higher density housing is appropriate in and around activity centres.
- The existing pattern of commercial activity forms an effective hierarchy of centres and that hierarchy should be supported with new development to be integrated with existing centres.
- A high standard of development design is sought to provide functional performance that promotes the viability of the commercial centre, contributes positively to local character and protects amenity of residential areas.
- Environmental sustainability must be a guiding principle in the design of new development.
- The Mornington Peninsula is an important tourist and recreation destination.
- Heritage values must be identified and protected.
It was Ms Foley's submission that the approval of the proposal would place in jeopardy the Council's stated objective of directing significant commercial and residential development to major activity centres as opposed to 'convenience centres'. She argued that the hierarchy of Activity Centres contained in the MSS, and to be refined by Amendment C84, identifies that the major centres are to be strengthened and consolidated with additional commercial activity directed to these centres. Council was strongly of the view that the proposed built form did not address the policy imperative to respond to context and be respectful of the low scale of existing built form. These views were supported by a number of respondent objectors.
Concerns about commercial viability of the proposed shops were raised by respondents with the existence of vacant premises at the nearby McCrae Plaza cited as a basis of questioning the viability of additional retail floor space in the area.
We are satisfied that both the retail and residential use per se as proposed on the site enjoy policy support and we have reached this position having regard to the following:
- The inclusion of residential use and provision of apartment type housing in activity centres is supported by State and local policy relating to promoting a variety of housing types, broadening the mix of uses in activity centres and utilising existing infrastructure.
- The separation of the site from the foreshore by Point Nepean Road, the existing topography (the low frontal dune), development and vegetation along the foreshore and the location of the site in the existing commercial area will avoid an adverse effect on the coastal environment.
- We were provided with no evidence that existing infrastructure is inadequate to cater for the proposed development.
- The increase in retail floor area and the inclusion of residential use is supported by the State Planning Policy Framework which seeks to concentrate new development in existing activity centres.
- The increase in net retail floor space is not large noting that tenancies will have to incorporate waste storage and amenities internally. The amount of retail floor space proposed will not, in our view, change the position of the centre in the hierarchy of activity centres as indicated in local policy and will contribute towards the aim of consolidating development in existing centres.
- The additional retail floor space in a main road location will allow for tourism related opportunities, as supported by Council's internal officer-report.
- The delegate report prepared by Council officers'[5] noted that provision of dwellings within the commercial centre is consistent with State and local planning policy and is supported.
- The advice of Council's Strategic Planner[6] was that the proposal would revitalise the centre which was severely affected by McCrae Plaza development and the proposal can appropriately facilitate the development of the centre more as a tourist and hospitality-based centre.
- The grounds of refusal make no reference to concerns about the use of the land for dwellings or the extent of retail floor space proposed.
Amendment C84 proposes to revise the MSS and local policy provisions of the Scheme which deal with activity centres. The proposed Clause 22.07-3 identifies three sub-levels of Neighbourhood Activity Centre[7] as appropriate for the Peninsula: Township Activity Centres; Local Activity Centres; Convenience Centres. McCrae Village is identified as a Convenience Centre which are described as :

[36]

The Amendment refers to a forecast for additional commercial floor space needed by 2021 including 29,930 square metres of retail space in southern Mornington Peninsula and seeks to direct additional commercial development to existing major and township activity centres with no reference to additional development in convenience centres. We agree with Mr Hansen that the proposed policy under this amendment fails to recognise the extent of land within the Business 1 zone; that the existing McCrae Village Centre has a floor area exceeding 1000 square metres;[8] and that the current function of the centre appears to be more than a mere convenience role for the immediate neighbourhood, including as it does some tourist-oriented services. We acknowledge that the amendment seeks to direct additional commercial development to existing major and township activity centres but we find the amendment unclear about the future of convenience centres and silent on whether these centres can accommodate additional development on existing Business 1 zoned land. In any event, as we have noted earlier, we place only limited weight on this amendment due to its unknown final content.
There was no commercial-viability information presented at the hearing and we are not in a position to draw conclusions on population catchments, proportion of business that might come from local residents versus tourists and we accept that the future viability of the shops is speculative. We accept Mr. Callander's submission that the existing retail tenancies should not be reduced in size; apart from other issues such a reduction in size might have a significant detrimental effect on their viability. We also accept with Mr Hansen's evidence that this centre does not, and will not, if developed as proposed under this application, compete with McCrae Plaza but will provide the complementary services for tourism and the local community.
Having found the proposal enjoys policy support in regard to the matters outlined above we now turn to the key issue of policy in regard to this proposal, that is: whether the design and built form meets policy objectives in relation to siting, height and respect for township character and site context.

[40]

The various respondents' position in relation to the height and bulk of the proposed building was adequately summarised by the McCrae Action Group's submission[9]. Members of that body submitted that the proposed building was out of character with the prevailing, consistent, single-storeyed, 4-5 metre high buildings within the Business 1 Zone. The height of the proposed building "is 10.5 metres above ground level, which is ... double the height of the highest existing building, ... the pizza Restaurant." The building "blocks out the western slopes of Arthur's (sic) Seat when viewed from in front of the historic McCrae Lighthouse. In addition, the bulk of the building .... (is) massive". Overall and notwithstanding one objector's earlier concession (para. 33) about two-storeyed development, the resident-respondents appeared to be seeking development that would sit comfortably with - i.e. largely repeat - the small-scale, small-frontage, single-storeyed development that dominates this commercial centre and its surrounding residential areas.
Ms. Foley submitted that we should, in our decision, give highest regard to local policy, which establishes that planning priorities on the Mornington Peninsula are different to those applicable to other metropolitan areas. Clause 21.07-3 emphasises that new development "should have regard to" the existing neighbourhood character and the "current and future structure" of a centre.
Clause 22.02-3 - Commercial Subdivision and Siting, builds on clause 19.03 and sets out objectives and standards for subdivision and design in business zones. Ms. Foley pointed out that the proposed building failed to meet a number of standards: particularly that it would exceed the 8 metre height limit but also not being set back from the frontage and having insufficient landscaping area (14.5% instead of 15% and a one-metre landscape strip along the residential interface rather than the required 3-metre strip). In particular, she focused specific attention on the excessive bulk of the south-western corner which, she submitted, presents an excessively bulky and unadorned element to adjoining dwellings and the view from Bartels Street.
Finally, Ms. Foley provided us with comments by Council's Design Advisory Panel (DAP) about the amended design, together with a copy of the McCrae Village Centre Design Statement, which Council's officers had prepared and which sets out quite detailed development guidelines. We understand that these guidelines were prepared by Council's officers on the basis of the advice provided by the DAP.
The DAP, although not having inspected the site, considered that the design is "not sufficiently respectful of its context", suggesting that appropriate development should have "more and smaller tenancies and smaller apartments" and that these should be "expressed as discrete elements in a finer-grained façade design and arranged so as to reduce the visual bulk, especially at the 3rd level."
Given that the McCrae Village Centre Design Statement was prepared in response to the amended plans and involved no public consultation, we view it as no more than an elaboration by Council's officers' of their views as to an appropriate design response to existing policy.
With respect to the implications of Amendment C84, we have commented elsewhere on these in relation to the extent of retail floor space. The two objectives of the amended clause 21.07-3 relate to strengthening the identified hierarchy of centres and facilitating well-designed centres, as compared to the two existing objectives which seek to improve access to a wider range of services and (in different words) to facilitate well-designed centres. We don't find these objectives of particular help in this case; we see them as more reflective of strategies that should guide more detailed policy.
Mr. Hansen's evidence provided various grounds for supporting the increased scale of this proposal. He provided us with photographs of a number of two and three storeyed buildings in and near activity centres along the Shire's shoreline. He considered the bulk and height of the proposal to be acceptable on a number of grounds, including:
- Only small and well-set-back portions of the proposed development would exceed the maximum policy height and in any case not significantly
- The extra height would not affect important views of the hills to the south and south-east
- The proposed building would not be visible from the foreshore proper, but only from sections close to the road and in any case these viewing-sections are relatively limited in extent
- The purpose of the Business 1 Zone supports increased densities of development and Melbourne 2030 policy supports increased housing in and adjoining activity centres.
In seeking to assess these different submissions and evidence and determine the weight that we should place on different policies, we were faced with a number of difficulties.
On the one hand, we accept that the building, in its amended form, is an example of high-quality architectural design. Its general architectural character and detailing are similar to those of the Sorrento Sailing Couta Boat Clubhouse, an architecturally elaborate and clearly expensive building that is finished with horizontal timber boarding in a natural finish and with a wide expanse of windows facing the sea. On the other hand there is no highway-frontage building of similar scale or bulk within this site's immediate locality.
In this regard, while we accept Mr. Hansen's evidence that there are a number of large and high buildings along the Point Nepean Highway in Mornington Peninsula Shire, these are relatively scattered and we do not accept that we should draw the reference-neighbourhood applicable to this proposal quite so widely.
Submitters, and Ms. Foley, referred to the proposed building as not designed to reflect an appropriate coastal character (this is a concept that has also been raised in a number of reviews of development proposals along the Port Phillip and Westernport coasts). No submitters provided us with a useful definition of what they meant by "coastal character", other than a general reference to the low-scale character of other commercial centres along Point Nepean Road. From our inspection of some of these strip centres, we identified nothing in their overall character or in specific buildings that we could generalise as being of a "coastal architectural character". We go further to observe that the general urban character of many Mornington Peninsula Shire coastal centres contain, at best, a bland diversity, an architectural jumble, of mostly economically constructed buildings in a range of styles; at worst they reflect the kind of Australian Ugliness against which writers such as Robin Boyd railed. In our view, these coastal centres have an urban character no different from that of scores of smaller suburban and provincial activity centres, certainly a character better to avoid than copy and certainly not "coastal" in any sense other than the mere fact of its familiarity and closeness to the coast per se.
In contrast to these other centres, McCrae has the advantage that its small and cosy scale allows other elements - the coastal reserve and backdrop of hills - to provide a strong element of its context.
On the basis that the proposed building is so very different in scale from anything in its immediate surroundings, we agree that if the only issue were one of compliance with neighbourhood character, we would refuse the proposal on that ground alone. Objectors appeared to rely almost entirely on this aspect of the planning controls. However, before we reached our conclusion on this aspect of the design, we had to consider a wider policy context.
There are a number of relevant and somewhat general policies but an absence of useful guidelines relating to this centre, i.e. there is no structure plan with appropriate status for this centre that translates the relevant policies and planning controls into specific guidance for development within it. The existing policies raise issues that we must balance against the simple issue of the proposal's claimed conflict with existing neighbourhood character. Most important are the policies and controls contained in the Scheme that together support buildings of up to 8 metres height within all business centres[10] and can allow buildings of up to 10 metres height in residential areas[11] adjoining this centre. Based on these controls, Council accepts that dwellings to each side and rear of the centre could reach 10 metres height, subject to assessment of their specific context, and 8 metres within the centre.
The proposal before us includes a second-floor level that would broadly exceed the 8-metre height by about 1.7 metres but with the further height of skillion roofs. This second floor is broken into two well set back, 11-metre-wide frontage elements as generally viewed from the highway and a well set back, 23-metre long element as viewed from either side. We accept that the skillion roofs that further exceed this level should be viewed more as architectural devices and we do not see them as likely to be significant elements in the general views of the building.
Commenting on specific aspects of the building, we are not concerned with the broader architectural character of the building's frontage and we do not agree with the views of Council's DAP. Those views reflect one approach to urban design in McCrae, one of aping the existing small-scale character of the centre and its surrounding locality. However, in seems to us that this centre, even if it is to be cast in a relatively minor service-centre role, is ripe for a process of redevelopment and intensification and this provides both the opportunity and imperative to adopt a new and more innovative approach to good design. The first policy of Clause 22.02-3 states that it is policy that:
- The design of new commercial development positively contribute to local urban character and enhance the public realm while ....
We consider that buildings of high quality architectural character, as is proposed here, can achieve this without having to adopt the fine grained, smaller tenancy character proposed by the DAP. We consider that this design is sufficiently and strongly articulated and, if its quality could be emulated in a number of future buildings, this would "positively contribute to local urban character ...."
The relevant objective of Clause 22.02 (Commercial Subdivision and Siting) is:

[42]

It is in response to this objective that the policy introduces the 8-metre height limit.
In our view, the important viewable aspects of the proposal, those that are critical in assessing its visual impact within its setting, are those that would be visible from the highway to east and west and from various points along the sections of foreshore behind the low coastal dune and closer to the highway.
We do not accept Mr. Hansen's conclusion that the impact of the proposed building within these views can be analysed in the static manner he proposed, whereby he analysed the degree of visual obstruction that vegetation would cause in any particular view and the extent to which the proposed building would intrude into any view of Arthurs Seat and the range of hills to the rear.
In our opinion, the building as proposed would loom large in sections of many views, including those of drivers approaching from either direction along the highway and from many points along the northern portions of the foreshore and its various pathways. We conclude that the building would be sufficiently visible from a sufficient number of viewing points that persons regularly in the area would be very conscious of it, of its scale and visual dominance of its immediate setting. The building would become part of their perception of McCrae Village and we accept that it would make a substantial change to resident's overall perception of the Village - a change that would go well beyond that envisaged by Council's existing policies for the Village and its residential surrounds. We therefore conclude that the combination of proposed height and breath of building is excessive, to an extent that can neither be counterbalanced by the excellence of the present design nor overcome by adopting the highly articulated approach suggested by Council's DAP.
Notwithstanding our overall conclusion that the combination of height and width of the building is excessive, we add with reference to more specific aspects of the design, that we consider that the front elevation, with its large central setback, to be sufficiently articulated. The proposed planting within this setback is also acceptable and would accentuate this articulation. We also do not agree with Ms. Foley's submission in relation to the proposal's south-western corner and we agree with Mr. Callander's submission that this corner, with its various articulations and insets, would not be dominating. In the context that this development is within a business zone, we also consider that the building's southern elevation is acceptably expressed.
At the hearing we raised concerns about the closeness of the proposed western elevation, which contains a number of bedroom windows, to the title boundary and the adjoining lot. Because the boundary is at an angle to the building, the walls containing these windows create a series of triangular spaces between wall and boundary. We are concerned about two issues relating to the future development of the adjoining lot.
Mr. Hansen concluded:

[46]

One of Council's grounds of refusal was that the proposal had failed to provide adequate car parking and that this failure would have adverse impacts on the amenity of the locality. Ms. Foley agreed that the proposal shown on the substituted plans would provide on site parking to cater for residential use and staff associated with the retail tenancies but submitted that reliance on the broader commercial area for car parking generated by customers of the retail premises and visitors to the dwellings is inappropriate. Ms Foley called Mr Symons to give expert evidence on traffic and car parking and acknowledged that it was his evidence that the proposed development has sufficient on-site parking provision.
Respondent objectors had concerns about the adequacy of the car parking, particularly at peak times in summer. Whilst not contesting that there is parking available in the area, a number of objectors agued that the occupancy of these car spaces must be considered in the context of the dispensations for reduced car parking provision given by Council to other developments nearby, the use of these car spaces by visitors to the nearby caravan park and the McCrae Yacht Club, that most local residents drive to the centre due to the lack of footpaths and hilly terrain and that some of the spaces provided on site are in an inconvenient tandem arrangement. The combination of these factors, in the view of some objectors, makes dispensation for car parking unacceptable. Concern was also raised about possible future use of a retail tenancy for a restaurant/café and the implications that would have for car parking.
Mr Callander relied on the evidence of Mr Turnbull that the provision of 19 on site car spaces will meet the long term staff and resident parking demands generated by the proposed development and that the short term residential visitor and customer parking can be accommodated within the existing supply of public car parking nearby.
The Scheme specifies 2 car spaces per dwelling which results in a requirement for 14 car spaces for the residential component of the development. The proposed shops generate a requirement of 56 car spaces based on 8 car spaces per 100 square metres of net floor area. Thus the total car parking requirement for the development is 70 car spaces. A total of 19 car spaces are provided for the development which includes 5 tandem pairs, one garage and 8 open air spaces. A reduction from the required car parking standards is a part of the approval sought.
Eleven car spaces are to be allocated for the residential component of the development and eight car spaces for the retail component.[12] We are satisfied that such provision is acceptable and reach this finding having regard to a number of matters as follows:
- The provision of 11 car spaces for the dwellings meets the car parking requirements of Clause 55 (except in regard to visitor car parking which we address later). Although the provisions of Clause 55 do not apply to development in a Business 1 zone, the rates in Standard B16 provide a useful guide in assessing an appropriate car parking rate for a multi unit development and differentiates likely demand for parking on the basis of the number of bedrooms. Furthermore, Clause 55 is a relevant consideration under the guidelines at Clause 34.01-4.
- The empirical evidence[13] supplied by Mr Turnbull shows that car ownership rates, in the Shire of Mornington Peninsula, for flats, units or apartments in one or more storey blocks are less than the Clause 55 requirements.
- We give weight to the evidence of both Mr Symons and Mr Turnbull that 8 cars paces allocated on site will be sufficient to cater for the retail staff's car parking demand, allowing for 2 car spaces per tenancy.
- We were advised that the site is entitled to a three car space parking credit due to a cash in lieu contribution made in relation to the previous mini golf use of part of the site.
- The evidence of both Mr Symons and Mr Turnbull is that the existing level of public parking available nearby[14] is both adequate and appropriate for use by customers and visitors to the dwellings.
It was common ground between the traffic experts that during holiday periods, particularly in summer, all parking is in high demand and at a premium. We recognise that at peak summer times there will be significant pressure on public parking in the vicinity of the review site but accept Mr Turnbull's evidence that the proposed development will not exacerbate this situation, noting that there has been existing uses on the review site generating parking demand and a large proportion of customers would be from within the town and the foreshore and have multiple reasons for parking in the area.
We do not share concern over the tandem arrangement proposed for five car spaces. Provided there is no sharing of tandem car spaces between tenancies we are satisfied that this arrangement will operate effectively, similarly to the situation commonly accepted for a single dwelling and many multi-unit developments, where a tandem car space is provided in the driveway to a garage or carport.

[47]

The substituted proposal presented two options for vehicle access:
- Option A proposes access from the Council owned land at 3-5 Bartels Street.
- Option B proposes access via the existing driveway on the adjoining site at 685 Point Nepean Road occupied by a medical centre with associated car parking.
Ms Foley relied on the evidence of Mr Symons that neither of the proposed vehicle access options were acceptable since they could not be relied on for the life of the proposed development. Option A, in Mr Symons' evidence, was unacceptable as it relied on non-existent rights of access over Council owned land, would inappropriately provide access over an unconstructed area used for car parking, could restrict the future formal construction of the land for parking and would restrict the future development of Council's land for some other use. Ms Foley pointed out that the proposed layout does not accord with Council's concept plan[15] for future construction of the carpark which shows a 2.5 metre wide garden bed along the northern boundary of the Council site.
In regard to Option B, Mr Symons' evidence was that the binding agreement with the owner of the medical centre necessary to ensure ongoing access to the proposed development may be unacceptable due to the restrictions that would impose on redevelopment of that site. Ms Foley advised us that Council's preferred option is to provide vehicle access on the western side of the review site, incorporating the drainage easement and existing crossing.
Objectors raised concerns about both vehicle access options. Mr Robinson argued that use of the medical centre driveway for all vehicle access to the proposal will create an unsafe environment for the safety of patients in the medical centre carpark and create difficulties for ambulances accessing the rear entry to the medical centre. Mr Barrett argued that option A allowed the Council owned land in Bartels Street to be used for the private gain of developers and that both options would create adverse impact on residential amenity due to additional vehicular traffic and associated noise.
We find Option B, relying on access over the medical centre land, an acceptable proposal for vehicle access to the site provided any approval of the development includes a requirement for a binding agreement or creation of carriageway easement ensuring the ongoing availability of that access. Put simply, in the absence of such an agreement or easement, the development could not proceed. The future restriction on redevelopment potential as a result of provision of access is a matter for that landowner.
In finding Option B an acceptable layout for vehicle access we have had regard to the following:
- The expert evidence of Mr Turnbull that this option provided effective access and that sharing access is appropriate in what is a relatively small area of land zoned Business 1.
- The expert evidence of Mr Symons that access via an access road width of 3.5 to 4 metres width is acceptable to provide access to residents and staff.
- Although the estimate of traffic likely to be generated by the development varied between the two traffic experts, it was common ground that the level of extra traffic generated could be accommodated by the service road of Point Nepean Road.
- We are satisfied that there is sufficient area and adequate sightlines to enable users of the medical centre car park, including ambulance access to the rear, without creating inappropriate points of traffic conflict noting that the review site provides sufficient area for vehicles to turn within the site and exit in a forward direction.
Option A, providing access via the adjoining Council owned land earmarked for car parking, is in our view the preferable access arrangement. It accords with the strategy of creating a vehicle access from Bartels Street to Beverley Road initiated by Council under conditions imposed on a permit for use of a shop at 675-677 Point Nepean Road. We find it remarkable, and somewhat obstructionist, that Council is so opposed to Option A, which appears, at least in concept, to accord with the future plans for vehicle access as set out in an identified strategy for the provision of car parking to the rear of the commercial area of McCrae Village.
We accept that a scheme for construction of Council's car park and plans for its layout have not been finalised and it appears to us, from advice provided at the hearing, that Council has not committed to the future use and development of the land for a car park. In these circumstances, we find the approval of Option A reliant on access via the Council land inappropriate but consider a conditional permit could allow for such access in the future.
The preferred option suggested by Council, of providing vehicle access to Point Nepean Road adjacent to the western boundary on the review site, could be accommodated if the proposal was redesigned. However, we are not persuaded that this is an ideal outcome in a Business 1 Zone where breaks in a commercial precinct should be avoided in order to maintain a connected streetscape and the number of crossovers minimised in order to reduce potential points of pedestrian and vehicle conflicts and maximise on-street parking. We fail to understand this outcome as a preferred position for a Council which has:
- Had the foresight to purchase land in Bartels Street and set it aside for use as a car park to service the McCrae Village Centre[16].
- Identified the opportunity for a rear service lane in relation to an application for a restaurant use at 675-677 Point Nepean Road (immediately adjoining the review site) and placed conditions on a permit[17] issued for that use specifically requiring creation of easements on that site and adjoining land (including the review site) to provide for vehicle access from the Council owned land in Bartels Street.
- A Local Policy in the Scheme which specifically seeks development that contributes to pedestrian amenity and safety by maintaining a continuous retail frontage.[18]
A sliding security gate is proposed between the site and Council owned land is proposed, under Option A.
The provision of a sliding security gate adjacent to the western boundary in the proposed vehicle access under Option A is supported by residential neighbours for security reasons but opposed by Council due to concerns about prevention of future connection of access at the rear of commercial premises between the Council owned land in Bartels Street and Beverley Road. Council was also critical of the gate for preventing a pedestrian linkage between the commercial component of the development and the public car parking area.
We are not persuaded that the gate is inappropriate in terms of pedestrian linkages. The rear parking provided on the review site is to cater for the parking demands generated by staff and residents of the development. The visitor and customer carparking is to be catered for off site and, as outlined above, we are satisfied there is capacity in the area to provide for that demand. This means that access to the rear parking area does not need to be publicly available and access via a security gate that can be used only by residents and staff would be acceptable. The proposed gate would not prevent public pedestrian access to the proposed Council car park in Bartels Street via the walkway.
The restriction the gate would create for vehicle and pedestrian access to a connected carriageway at the rear of the properties sought by Council in the future is acknowledged. It appears to us that Council holds a contradictory position. On the one hand, Council opposes vehicle access to the site from the proposed car park in Bartels Street yet on the other hand seeks to ensure that access is provided to others. It is our view that Option A will require the construction of the car park in Bartels Street and if this occurs it is appropriate to avoid restriction on access to the rear of the site with a view to providing vehicle connection though to Beverley Road. We are satisfied that this can be addressed via a condition on permit.
We recognise the security concerns of residential neighbours in relation to access to the rear of commercial premises. Planning decisions require a balancing of competing interests and while we acknowledge the preference of the residential neighbours for the provision of such a gate, we find the advantages to the community by providing potential for a connected rear access to this commercial centre are significant. It was also pointed out by Mr. Hansen that the use and surveillance provided by the development of this site together with potential use by customers and visitors to the business area would increase the level of activity in the rear yards, thereby increasing surveillance opportunities and improving safety.
We also acknowledge the neighbour's concern about increased noise from vehicles parking or accessing rear areas of the site. However, we consider the advantages to the community of containing parking and access to the rear of the site, together with the reasonable expectation of a different standard of amenity at the interface of different zones (i.e. in this case, the junction of a business and a residential zone) justify the use of the rear of a Business 1 zoned site for vehicular access and car parking.

[48]

The proposed development is setback 1.83 metres from the western boundary at ground level, an area which contains a drainage easement. Plans show this setback area to be used for external pedestrian access from Point Nepean Road to the rear of the site and the Council owned land in Bartels Street. Pedestrian access to the apartments is also provided from the recessed entry facing Point Nepean Road and from a covered area facing the rear car park.
A number of objectors submitted that the proposed pedestrian walkway to the Council owned land used for car parking was inappropriate for public safety reasons having regard to the Safer Design Guidelines.[19] These guidelines specify that use of lanes for pedestrian access should only occur where there is residential or community activity present and some objectors argued that the lane proposed would provide opportunities for potential offenders to gain access to rear gardens.
The provision of a public walkway between Point Nepean Road and the Council owned land is, in our view, a good planning outcome. It will provide access to the existing informal car park and to a future developed carpark from the retail area and foreshore. We are satisfied that there is an acceptable level of surveillance of the walkway provided in the design. This is achieved by glazing to the west side of the retail area and windows and balconies to the upper level dwellings.
We agree that the width of the western setback at 1.83 metres is not generous and that it will not allow for significant landscaping, a matter we address later. However, we find that it will be sufficient for pedestrian access and provides a reasonable balance between providing for access and maintaining a continuous retail frontage.
We note that the McCrae Village Centre Design Statement suggests that within each development allotment, the ground floor may extend to the frontage but at one side a pedestrian link should be provided either by a public arcade or a side yard or walkway with a minimum dimension of 5 metres to allow mature tree growth. We have already referred to the limited weight we place on this document but offer the view that a requirement to provide a side setback of 5 metres on every allotment in a Business 1 zone would appear to significantly restrict the development of retail space, contrary to the purpose of the zone, would prevent the establishment of a continuous retail frontage as sought in the Scheme and, so it appears to us, would provide an excessive amount of pedestrian access to the rear of premises in what is a relatively small business centre.

[49]

Objectors submitted that the provision for landscaping of the review site was inadequate. In particular they raised concerns about the following:
- The 1 metre width of the landscape strip proposed along the southern boundary being insufficient to provide appropriate screen planting and provide a noise buffer to the adjoining residential land.
- Planting proposed along southern boundary will result in canopy overhang and shadows to adjoining residential properties.
- The 1 metre width proposed failing to meet the 3 metre wide landscape strip requirement specified in Clause 22.02-3 of the Scheme.
- The minimum setback of 5 metres from a side boundary to be provided for pedestrian access and landscaping required by the McCrae Village Design Statement 2007 is not met.
- The suggested 'dense' planting proposed along the western boundary of the site cannot be achieved given the restricted width of the setback, the proposed wooden pedestrian path and the height restrictions imposed by the cantilevered roofs and decks above.
- The species of planting proposed in various landscape areas and along the street are inappropriate.
Ms. Foley raised concern in relation to the width of the southern landscape strip, arguing that there was no justification to vary the requirement, specified at Clause 22.02-3, for a 3 metre wide landscape strip along this boundary.
Mr Callander, conversely, submitted that 3 metre wide landscape buffer was not required and relied on the evidence of Mr Wyatt that a 1 metre width is more than sufficient to achieve healthy growth of the proposed planting and was easier to maintain. Mr Wyatt gave evidence that the species selected were appropriate and would adequately adjust to the areas where planting was proposed. Mr Wyatt agreed, on questioning, that the proposed planting along the southern boundary could be lowered to protect views and limit shadows to the adjoining dwelling but pointed out that the filtered views through vegetation would be obtained and shadows cast would also be filtered.
There is considerable emphasis in the Scheme on ensuring appropriate provision is made for landscaping. The objectives of the Commercial Subdivision and Siting policy at Clause 22.02-2 include:

[52]

The most contentious element of the landscaping proposed relates to the width of the buffer along the southern boundary. The table to Clause 22.02-3 contains a recommended standard that a landscaped area with a minimum dimension of 3 metres should be provided adjacent to a residential zone boundary. The proposed development provides 1 metre width along this boundary.
The decision guidelines at Clause 22.02-4 require consideration of whether it is reasonable and practical to meet the provisions of the policy having regard to a number of matters including the size of the site and the established pattern of development in the area. Ms Foley advised us that the endorsed plans for the proposal at 675-677 Point Nepean Road, approved under a permit issued 16 March 2006, show a 1.5 metre wide rear landscape strip.
The consistency of Council's approach in applying the recommended 3 metre wide landscape buffer adjacent to residential areas is not apparent. We observed during our inspection of the area that the relatively recently shopping centre at McCrae Plaza has varying widths of landscaping adjacent to a residential area, most of which appear less than 3 metres and include some sections of interface where no landscaping is provided.
On the evidence of Mr Wyatt, we are satisfied that a 1 metre wide landscaping strip can accommodate planting capable of providing an effective visual buffer between the review site and the residential properties to the rear. However, we find that consistency with what Council has required at 675-677 Point Nepean Road is important having regard to the objectives of Clause 22.02 and would therefore require a minimum width of 1.5 metres.[20] In making this finding we have considered the 2.1 metre high masonry wall proposed along the southern boundary brick and the protection that will provide both visually and acoustically to the adjoining dwellings.
The balance between providing screen planting and protecting views and access to sunlight is acknowledged. We consider a revised landscape plan which proposes lower level planting opposite windows of the adjoining dwelling 4/40 Burrell Street would achieve that balance.
We find the other components of the proposed landscaping acceptable having regard to the following:
- The proposed planting of the courtyard located centrally along the frontage will provide a softening effect to the streetscape and make the residential entrance distinct. This planting together with proposed street trees will, in our view, contribute to an improved landscape in this centre.[21]
- The proposed landscaping will not provide a screening effect to the development when viewed from the west, east or north but we find that acceptable in a Business 1 zone where intensive development is encouraged.
- We agree that planting along the western boundary will be limited due to space constraints but we accept Mr Wyatt's evidence that the species proposed will adapt to their confined space and that the planting will contribute to a visual separation between the proposed building and the medical centre to the east.
- The total area set aside for landscaping, footpath widening and the pedestrian path is 14.5% of the site area. We are satisfied that this reduction from the recommended standard of 15% specified in the table to Clause 22.02-3 is acceptable having regard to the site area and the pattern of development in the area.
- We are not persuaded that the setback of 5 metres from a side boundary to be provided for pedestrian access and landscaping required by the McCrae Village Design Statement 2007 is appropriate for development in a Business 1 zone nor that it would be necessary for every site in this relatively small commercial centre to provide pedestrian access to the rear of sites. As outlined earlier we place no weight on a document which has not been subject to the normal processes of incorporating policies into the planning scheme.
- A condition on permit requiring landscaping to the satisfaction of the Responsible Authority can satisfactorily address the issue of suitable plant species.

[55]

Protection and enhancement of the amenity of residential areas is an important consideration under the Scheme. Clause 22.02 Commercial Subdivision and Siting seeks to minimise detrimental impact on neighbouring properties, the decision guidelines at Clause 34.01-4 require consideration of the interface with adjoining zones, especially the relationship with residential areas and of Clause 55, which includes detailed amenity objectives and standards.
Mr Barrett raised concerns about loss of privacy and views and overshadowing from landscaping. Overlooking to the adjoining medical centre was a concern raised by Mr Robinson. Issues raised about loss of amenity due to visual bulk, use of rear of the site for vehicle access and parking, waste storage and collection, the proposed security gate and landscaping have been addressed elsewhere in this decision.
In regard to privacy we are satisfied that the proposed design will minimise loss of privacy to adjoining residential properties having regard to the following:
- The ground and first floors are setback over 13 metres and the second floor is setback over 18 metres from the common boundary with residential properties to the south.
- The upper level north-facing wall of the adjoining dwelling to the south, 4/40 Burrell Street, includes only a bathroom window.
- The ground level secluded private open space and north facing, ground floor habitable room windows of 4/40 Burrell Street will be protected from overlooking by the proposed 2.1 metre high masonry wall proposed along the common boundary.
- The north side of a west facing deck at 4/40 Burrell Street will be set back a minimum of 17 metres from the nearest proposed deck and over 20 metres from the nearest habitable room window. These setbacks significantly exceed the 9 metre standard of Clause 55.04-6.
- The north facing deck and habitable room windows of 5/40 Burrell Street are a minimum of 15 metres from the first floor deck and a minimum of 20 metres from the second floor deck of the proposed apartments. These setbacks significantly exceed the 9 metre standard of Clause 55.04-6.
We are not persuaded that overlooking of the adjoining medical centre is inappropriate. The car parking area and main entrance associated with the medical centre is currently visible to the street and we consider it unlikely that patients or visitors to the centre have a reasonable expectation of privacy in this area. We find the additional surveillance opportunities provided by the proposed development will contribute to public safety in this area.
The substantial setback of the proposed building will avoid overshadowing to the south and the shadow diagrams confirm that there will be no shadows affecting residential properties at the equinox. We agree that shadows could be cast by proposed planting along the southern boundary of the site but consider this matter can be addressed by condition of permit, noting that the filtered shadows cast by vegetation tend to create less impact on amenity compared to shadows cast by buildings.
We agree that the proposed development will reduce the views currently obtained from the north facing section of deck at 4/40 Burrell Street and we accept that views are part of amenity. However, we are not persuaded that a three storey proposal on land zoned Business 1 where there is a reasonable expectation of substantial built form, setback a minimum of 13 metres from a residential boundary and with a recessed upper level, would create an unreasonable intrusion on views from adjoining properties.

At a glance

Court

Decision date

Source

Judgment (76 paragraphs)

Lighthouse Enterprises McCrae Pty Ltd v Mornington Peninsula SC [2008] VCAT 237 (15 February 2008)

Parties

Legislation Cited (2)