Lorne Crest Pty Ltd v Glen Eira CC [2011] VCAT 2065

Lorne Crest Pty Ltd v Glen Eira CC [2011] VCAT 2065 - VCAT 2011 case summary — Zoe

[37]

The Applicant's case places considerable emphasis on the site's lack of direct abuttals with other dwellings, and thus potential amenity impacts, being surrounded on all but one side by railway reserves. Ms Jordan described the land as an island site and an anomaly in the context of the Council's local policy designation of the site within the 'minimal change' area. She says it is a strategic redevelopment site with many of the characteristics for such a site as described in Clause 16.01-3 of the planning scheme, given its proportions, lack of sensitive interfaces, proximity to the Caulfield Railway station and Phoenix Precinct Major Activity Centre.
Its proximity to the Caulfield campus of Monash University and the recently announced redevelopment of the Caulfield Racecourse to be known as "Caulfield Village" were also said to weigh in favour of the site's locational attributes making it a suitable candidate for more intense housing.
Ms Jordon's evidence and that of Mr Hudson on urban design concluded that the height, design and appearance of the higher development is contextually appropriate and would make a positive contribution to the public realm without any unreasonable visual impacts upon the surrounding area, given the massing and siting of the proposed two upper levels away from the site frontage.
The site's substantial size at 1874sq.m absence of any direct abuttals with existing residential properties and thus the residential amenity concerns that frequently arise at the interface with neighbouring backyards are clearly factors that weigh in favour of this site's treatment for more intense development. Its location within an established urban area and thus the contribution to metropolitan policies promoting urban consolidation and housing diversity are also positive features. I can therefore understand the Council's preparedness to reach a consent position that departs from its minimal change area policy of low scale development.
There are however some broader contextual issues that I need to balance and reconcile in deciding whether the additional two building levels are acceptable.
Relevant policies that must also be considered include the Urban Design Policy at Clause 15.01-2. Eleven design principles are set out for consideration the first of which is "context". Policy guidelines refer to several documents including the Design Guidelines for Higher Density Residential Development ("the Design Guidelines") which must be considered as relevant.
Also of relevance is Clause 52.35 of the planning scheme which requires the preparation of an urban context report and design response for residential developments of four or more storeys. These contextual considerations include:
- The location of local shops, public transport services and public open spaces within walking distance.
- Movement systems through and around the site.
An assessment of the characteristics of the area is to include:
- Any environmental features such as vegetation, topography and significant views.
- The pattern of subdivision.
- Street design and landscape.
- The pattern of development.
- Building form, scale and rhythm.
- Connection to the public realm.
- Architectural style, building details and materials.
- Social and economic activity.
This is a case where a detailed assessment of movement systems around the site, the pattern of subdivision and connection to the public realm are of particular importance.
There are several contextual issues that I find weigh against the intensification of the proposal now before me.
The very opportunities said to arise from the site's abuttals with railway infrastructure are also its key constraints. The railway tracks which diverge south of the review site, impose a physical barrier limiting convenient pedestrian and vehicular access to key facilities relied upon in support of this site's positive strategic qualities.
As the crow flies, the site could correctly said to be at the edge of the Phoenix Major Activity Centre and sits approximately 450m south-east of Caulfield railway station and the university precinct.
The true situation for a pedestrian when the physical characteristics of the site's context are considered, reveal a significantly different outcome. The distance to the Caulfield train station from the review site is closer to 900m via the underpass near Moodie Street, while the shortest route on foot to shopping facilities at the Caulfield activity centre is about 1.1km away.[8]
These distances are greater than the often quoted 400m benchmark for an easily achievable 5 minute walk. This is not however fatal. For a person of average fitness, these distances are not excessive, equating to about a 10 minute walk in each direction. The issue of pedestrian access does however have a sharper focus when the quality of the pedestrian environment on offer is considered.
Footpaths are non-existent adjacent to the railway reserve in Lorne Street, Leamington Parade and in Derby Crescent. Indeed during my daytime inspections I observed several pedestrians walking on the road pavement in Leamington Crescent and Derby Crescent rather than crossing the road to reach the footpath on the opposite side.
Access to shops at the activity centre on the north side of the railway line involves walking under the railway bridge at Queens Avenue to Sir John Monash Drive along a busy thoroughfare that I would describe as a hostile pedestrian environment or alternatively via the subway at the train station. The latter option is dominated by large at-grade carparks on each side of Normanby Road - within the racecourse grounds and on railway land in the leg between Queens Avenue and the train station.
These routes are somewhat convoluted and not ones that I would describe as offering good levels of walkability or pedestrian amenity. In my view, these factors, in combination with other policy and physical contextual features must temper development expectations for this site.

[38]

In relation to the existing character of the area, I begin by observing that the Leamington Crescent and Lorne Street precinct is characterised by mostly one to two storey housing, including some of the original housing stock and more recent infill development with multi-dwellings. An example of the latter is directly opposite the review site. One of those dwellings is owned by Mr Baldacchino. Development in Lorne Street and Leamington Crescent has a low scale unmistakeable domestic quality whose landscape character is substantially enhanced by the presence of Plane trees in front of the site and along the railway reserve land particularly near the convergence of Leamington Crescent and Lorne Street. Street trees further removed from the review site in Leamington Crescent in particular are of a different species on both sides of the street with a lesser height and canopy spread. They result in a more open feel to this street.
I am not concerned about the proposal's visual impact from the north-eastern side of the railway line in and around Dudley Street. That is an environment already characterised by larger scale residential buildings of 4 to 5 storeys. The proposal's visual relationship with that area is also a very limited one having regard to the presence of the railway embankment and juxtaposition of lots relative to the review site.
I accept Mr Hutson's evidence that the setbacks of the two upper most levels from which range from a minimum of 20.6m to 23.9m at the fourth level and 26.65m to 32.6m at the fifth level is a logical arrangement of these elements that will limit their exposure from the environs of Lorne Street and Leamington Crescent.
While the Plane trees will also soften and partially screen the development as they do to the 4 to 5 storey Dudley Street buildings from Lorne Street, the upper two levels proposed would reach a height of about 16m above ground level. These levels would most likely be readily visible on approach to the site from both Lorne Street and Leamington Crescent, but particularly the latter given its curvilinear alignment. Being deciduous, the screening effect of these trees will be somewhat lessened during the autumn and winter months.
Given these circumstances, my primary concern is the visual impact of the proposed upper two levels from Leamington Crescent.
It was common ground that there are few existing candidate lots in Leamington Crescent and Lorne Street suited to a similarly scaled building to that which is now proposed on the review site given its unique characteristics and unless perhaps site consolidation of other lots is pursued. Mr Pitt submitted that this situation lends support to this proposal in essence because it could not be said to result in substantial change nor set an undesirable precedent. Mr Bromley however said that this is precisely the reason why this development should not be supported - because only limited change within these two streets is likely to occur, particularly in light of the area's designation within a 'minimal change' area.
Both arguments are valid. On balance I think approval of this development at either 3 or 5 levels may well open the door to applications for more intense development of some other sites but not to the extent proposed here given the review site's lack of abuttals with other dwellings. But nor do I think that the likelihood of only limited rather than rapid change more broadly provides wholesale support for this development in its proposed form - it is but one consideration amongst many others.
Another of those considerations is the development's interface with Derby Street to the south-east which I regard as most problematic, particularly in the portion between Epsom Street and Queens Avenue.
This area is also within a "minimal change" area. Dwellings are low scale but vary in style, with various eras of development represented. The most striking feature about this area on approach from the north and Epsom Street is its very open quality across the railway reserve beyond which to the north lies the East Caulfield open space reserve. Along parts of this edge is lower lying tree planting which defines the two railway corridors. There are however breaks between this planting to allow vehicle access to the maintenance yards, with two such openings opposite the review site.
I also find that the larger built forms associated with the university exert a very limited visual influence upon the predominant features of Derby Street south of Queens Parade, given the distances involved, irregular street pattern and topographical features. Despite its apparent proximity to the Phoenix precinct, this area is characterised by a relatively consistent finer grain pattern of residential development which has a low scale quality of mostly one to two storeys.
In contrast, the building with its two additional levels will be highly exposed from this part of Derby Street. This will, in my view introduce a substantial degree of change to one's experience of this streetscape in a location not earmarked for that purpose under the Council's planning policy framework. Its 4th and 5th levels will extend for a distance of about 54m and 41m parallel to Derby Street at heights of 13.5m and 16m respectively. It is to be built on or close to its side and rear boundaries. I acknowledge that the building will be viewed from across the railway reserve - a distance of about 45m. This however is comparable to the width of three conventional house blocks. This distance must also be considered in the context of the building's substantial scale and lack of any meaningful landscaping opportunities at this interface aside from one or two trees.
I also accept that the development with its dynamic artwork proposed to the building's skin will enliven the otherwise utilitarian quality of the railway infrastructure including gantries and overhead powerlines. It would also add interest to a train passenger's journey. That however could occur with the building in its three-storey form consented to by the Council. In built form terms, the key issue here is the overall scale and mass of the building with the two additional levels proposed which I find to be excessive in the particular physical and policy context.

[50]

Whereas the negotiated outcome resulted in a total provision of 49 car spaces including 6 visitor spaces, 48 car spaces are now proposed, only 2 of which are for visitors.
Some alterations to the internal carpark are also proposed, including a reduction in the aisle width from 6.4m to 6.155m behind car stacker spaces 13 and 14.
Mr Pitt submitted that there is no parking issue as the Applicant is prepared to accept a condition requiring the provision of 3 additional spaces within the basement carpark by utilising a different type of car stacker within the area occupied by car spaces 15 to 22. These would be for resident use. Five at-grade spaces would be designated for visitor use elsewhere within the basement.
The Council seeks the provision of 6 on-site visitor car spaces necessitating 4 additional spaces and the widening of the aisle adjacent to the car stackers to 6.4m. The Council's draft conditions suggest the use of the 'Wohr Combilift 543 Standard Type' for this purpose.
It was Mr Fairlea's evidence that the lesser aisle width of 6.155m is still workable but results in the need for additional corrective movement upon entering car spaces 13 and 14 which are in a stacker arrangement.
I find that the lesser aisle width would not promote convenient and efficient vehicle movements, within a basement whose layout is already quite tight with little margin for error.
While the overall ratio of car spaces to dwellings is reduced, I find that with the provision of 6 visitor car spaces, the level of carparking provision would be acceptable.
I note that 46 car spaces would be available for 45 dwellings, all of which are one or two bedrooms[10].
I would expect that at times there will be demand for on-street parking by either residents or visitors which may prove to be more convenient than the basement.
While unrestricted kerbside parking occurs to a significant extent during the day on weekdays, based upon my inspections at both day and night and having considered Mr Fairlea's evidence, I am satisfied that there is sufficient capacity on the street to accommodate parking demand that may on occasion be generated by this development.
In relation to the additional traffic generated by 11 extra dwellings of the kind proposed, I am satisfied that the surrounding road network can absorb this without any unreasonable amenity or traffic related impacts. While I would anticipate some additional queuing and delays at the intersection of Lorne Street and Grange Road, I accept Mr Fairlea's evidence that the arrangement is acceptable, taking into account the "keep clear" area at this intersection. I also note that there are multiple options to access the site to and from Grange Road from, for example, via Moodie or Tattenham Street.

[52]

There are a number of relatively minor modifications to the layout and size of dwellings, setbacks and areas of private open space that appear to be refinements arising through the design process. These are not contentious.
Modifications to the appearance of the north, south and west elevations through the introduction of a 'graffiti' mural art installation were said to enhance the connection with the rail network and may reduce instances of graffiti, thus responding (in part) to Condition 22 of the Permit. While the Council does not oppose this modification, the appearance of the facades (except from Leamington Crescent and Lorne Street) together with the additional two levels of the building does in my view give rise to new considerations that were not originally considered. I will return to this issue shortly.
As I have mentioned, is not entirely clear why amendments to the acoustic limits under Condition 17 are now proposed.
The reduction in car parking spaces now sought has arisen as a consequence of the increased number of dwellings.
The increase in the number of dwellings by 11 and the addition of two further levels to the building was said to have arisen from the Applicant's ability to secure finance for both the permitted development and the amendments now sought. The second reason advanced for these amendments is essentially driven by market demand for the housing product on offer.
On one view, the flexibility that s.87A confers may be relied upon to allow these amendments. As the Tribunal explained in King David:
1. ... It will also often be appropriate for the Tribunal to allow more substantive amendments to a permit to facilitate a reasonable change in the development or use. This might include, for example, an amendment that responds to different market conditions or opportunities that arise after the permit was issued, or changes arising during the detailed design, construction or financing of a project.
However, in this case there is no suggestion that development would fail to attract finance if it proceeded on the basis of its permitted 3-storey form for 35 dwellings. Unlike other larger scale residential developments not uncommonly involving an internal re-organisation of dwellings or their layout such as the number of bedrooms in response to changed market conditions, that is not the situation here. This is a case where the additional dwellings are essentially the same type of housing product already permitted. It is in essence a bid for more of the same.
In the absence of any compelling reason to the contrary, I am of the view that this is not an appropriate use of s.87A.

[53]

After the Tribunal's order of the 17 May 2010, the Council issued the Permit on 24 May 2010. This application was lodged with the Tribunal on 30 March 2011, just over 10 months from the Tribunal's order.
I do not regard this as a substantial elapse of time. While the Tribunal in the King David decision explains that principles for repeat appeals do not strictly apply to s.87A applications, I simply note that since the time of the Tribunal's order, there has been no material change of circumstance in respect of the land itself or the planning scheme controls that apply to it, and relevant planning policy remains substantially the same.
While there have been some changes to the broader context which include the construction of 4 to 5 storey student accommodation buildings in Dudley Street I note that a permit was granted for at least one of these developments at 7-13 Dudley Street[11] before the grant of the permit in this case before me including the commencement of site clearance works and earthworks. More importantly, the Dudley Street precinct enjoys a much closer strategic and physical relationship with the university little more than 380m away, is located opposite a large park (Caulfield East Reserve) and would advance other policy objectives which support the provision of student accommodation in this location. Its locational attributes weigh more heavily in favour of its more intensive redevelopment than the site before me.
The rezoning of the land north of Caulfield racecourse[12] in April this year to a Priority Development Zone which is proposed to have new retail space including a new supermarket and office floor space together with around 1200 new apartments is also a change to the surrounding context that is a relevant consideration. While some of these facilities may be utilised by residents of this site, the final location and timing of development is as yet unknown and the distance to the closest point of this precinct on foot is about 1km away. But what is notable about that development is the emphasis on achieving safe, efficient and comfortable pedestrian movement through and beyond the precinct together with an integrated range of facilities on the doorstep of the Caulfield Activity Centre and almost directly opposite the Caulfield train station, bus and tram services.[13] Like student housing in the Dudley Street precinct, the Caulfield Village site also enjoys far greater strategic support for more intensive redevelopment in locational terms than the review site.

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Judgment (73 paragraphs)

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Cases Cited (1)

Lorne Crest Pty Ltd v Glen Eira CC [2011] VCAT 2065 (28 October 2011)