Victorian Civil and Administrative Tribunal|2004-10-07

The application is for buildings and works to enable the development of a building, which (would be) four storeys high at the Riversdale Road frontage and five storeys high at the rear of the site. The increase in the number of storeys at the rear of the site is as a result of the slope of the land. The building is to contain 2 showrooms at ground floor and 15 dwellings at the ground floor and upper levels. The application also seeks a reduction in the standard carparking provision required pursuant to Clause 52.06.

The proposal will provide a semi-basement car park containing 22 car spaces. An existing section of road which is currently enclosed within the review site is proposed to be used for four at grade car parking spaces. The basement car park is to be accessed from the laneway abutting the northern section of the site. The spaces within the basement are located on either side of a 6.4 metre wide central access way that extends along the length of the site.

At ground floor the proposal will provide two showroom tenancies with a combined floor area of 236 square metres. The showrooms are located on different levels which follow the natural fall of the land from the south to the north of the site.

At the rear of the showrooms, there are 4 residential apartments consisting of 3 two-bedroom apartments and a one-bedroom apartment, each with a balcony.

The main entrance to the apartments will be centrally located along Riversdale Road, with a lobby leading to both the commercial tenancies and the residential apartments. Each showroom tenancy is also provided with an independent pedestrian entry along Riversdale Road. This level also provides lift and stairwell access to the basement and upper levels.

A canopy awning is to be located at ground level to Riversdale Road

The first floor contains six apartments, 5 two-bedroom apartments and 1 one-bedroom apartment. Each dwelling will contain a kitchen/meals area and living area with direct access to balconies.

The second floor will provide 4, two-bedroom apartments, containing open plan kitchen/meals and living areas with direct access to balconies and a main bedroom with en-suite and additional bathrooms.

n Northern Boundary - 3.6-4.85 metres Eastern Boundary -0-7 metres

The third floor will contain one 3-bedroom apartment. The apartment will contain an open plan kitchen/meals, living room, dining room, and three bedrooms. The main bedroom will have walk-in- robes and en-suite.

The building design is of a contemporary style, with a flat roof. The building will have a mixture of materials incorporating rendered walls, with face brickwork for the residential entry and frameless glass balustrades for the balconies. The commercial sections of the building will have glazed shop fronts.

A 4 by 4 metre light well will be located in the centre of the building.

The building will have an overall height of 15.7 metres above natural ground level.

7 Council referred this permit application to a number of internal departments. Officers' comments were made in relation to the original plans.

n The urban designer expressed his/her comments in unfortunately vague terms, though appearing not to support the original design

n The traffic engineer did not object, though requiring a number of design issues to be addressed; parking rates greater than those adopted in Clause 55 were applied to calculate parking demand

n The infrastructure engineers required a number of conditions to be attached to any permit.

8 The planning policies that are most relevant to this decision are listed below - focussing on Melbourne 2030, the LPPF, zones and specific provisions:

n Melbourne 2030 - in particular Policies 1.3 and 5.5

9 At the commencement of the hearing, Mr. Steward applied to substitute amended plans. These had been circulated to all parties, together with a statement setting out the changes. No party present had any objection to this request.

10 I directed that the amended plans (identified as `Rev 2') be substituted for the permit application plans.

11 Mr. Glossop applied to have Messrs J and R Vodopic joined as parties to the review. Messrs J and R Vodopic had only gained an interest in the issue after the advertising of the permit application through completion of their purchase of the adjoining property to the east of the subject site - the motor repair garage. There were no objections to this application, though Mr. Stewart reserved his right to object if Mr. Glossop brought forward new grounds of objection.

12 I directed that Messrs J and R Vodopic be joined as parties to this review.

13 Mr. Stewart also submitted a set of perspectives of the proposed development, based on photomontages, together with a map of the locations for each of the respective photo-points.

14 At the hearing, I was presented with a number of submissions, statements of expert evidence and photographs of the site and its locality. This material remains on the Tribunal's file.

15 On the morning of the second day of the hearing, I made a site inspection of the site and its locality.

16 At the conclusion of the hearing, I made an oral order that a permit be granted, subject to conditions. I based this decision on my conclusion that the scale and form of the building would be acceptable in terms of its impact on the neighbourhood character of the centre and the surrounding locality, that other issues - parking, management of noise nuisance - could be effectively managed, while other issues such as privacy and building bulk, as perceived by users of the adjoining parkland and dwellings, would not be unreasonable in scope.

17 I have elaborated below on the basis of my decision.

18 At the conclusion of the hearing, and following my oral decision, I directed the parties to jointly draft an agreed condition setting out the procedures for assessing and managing noise nuisance from adjoining properties including procedures for providing an assurance of acceptable outcomes in terms of managing noise nuisance. This advice was to be provided within 10 working days of the hearing.

19 From the submissions and evidence presented to the Tribunal, I concluded that the following matters are relevant to the decision as to whether a permit should be granted:

n The affect of the proposal on the neighbourhood character of the centre

n The affect on the amenity of future residents of the proposed development arising from the legitimate use of adjoining properties

n Car parking and access to the site via the rear roadway.

20 I will also discuss a number of other matters that, while not bearing on the principal decision, are relevant to the final form of development.

Affect on the Role of the Through Road Activity Centre

21 It appeared that the various parties accepted that it is reasonable, in terms of planning policy, to provide dwellings within the Business 2 Zone in such a location (which is separate to the question of whether it would be appropriate to construct dwellings adjoining the existing neighbouring uses of motor vehicle repair business and engineering works). Use of land for dwellings on the edge of an activity centre is consistent with Policies 1.3 of Melbourne 2030, which seeks to "locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport."

22 The only useful statements in Clause 21 are as follows:

n The objective "Increase residential development opportunities (including higher density development) in and around commercial centres and other strategic locations." (Clause 21.07-3). Implementation measures include provision of Business 2 Zone to selected activity centres "...... to encourage higher density residential development to locate in appropriate locations within and around commercial centres ....."

n The Strategy (Clause 21.03 Commercial Sector) includes "Integrate residential uses with commercial activities in select centres". While Business 2 Zone is to be applied to implement certain elements of this strategy, there is only indirect reference to its role in fostering residential uses (in terms of "mixed uses") in smaller activity centres.

23 The Through Road Shopping Centre is defined as a Small Convenience Retail Centre. Council's policy (Clause 22.10) focuses on consolidating the Through Road centre "as a specialist food and casual eatery centre, in addition to (a) convenience retail role." It is policy that (Tribunal's emphasis):

"Office, residential and community infrastructure that enhance the vitality of a shopping centre be encouraged:

24 The Through Road activity centre takes the form of a `T', with part of the centre extending south down Through Road from Riversdale Road, part being on the north and south side of Riversdale Road, mainly to the west of Through Road. It is difficult to define the core of such a small but dispersed centre. However, I concluded that it would be reasonable to consider that the subject is at the periphery of the centre and not within the core. The abutting uses to either side are industrial, not retail or office. In addition, the residential uses are to be located above retail premises, in compliance with the above policy.

Impact on the Neighbourhood Character of the Activity Centre

25 The only one of three objectives in the MSS for urban design (Clause 21.05-3) is:

"To ensure that the City has its own distinctive urban character identity, setting it apart from other areas in Melbourne."

26 The relevant MSS strategy is (with its focus on economic outcomes):

"Enhance and promote key commercial urban character features that contribute positively to the City's economy.

27 The relevant Council policy (Clause 22.07) applies to residential zones, not business zones. Clause 22.10 Retail Centre Policy, with respect to the smaller centres, focuses almost entirely on issues of maintaining and enhancing these centres' economic viability in the face of competition from larger, particularly integrated, retail centres.

28 Clause 22.08 Commercial Centre Policy has related objectives and policies, which encourage the integration of residential uses with commercial activities is selected centres.

29 In effect, Council's policies have very little to say about urban design outcomes for smaller activity centres, other than in terms of their economic effectiveness. The most useful guidance in from Melbourne 20302 which states (Initiative 5) "Promote good urban design to make the environment more liveable and attractive."

30 Council's objection to this development, in terms of urban design, related to the fact that the building would, even with its fourth floor being well setback from the frontage, be seen to be dominant in the streetscape. In my view, this will not be the case. The third level parapet would not be very much different from the adjoining building to the east and the recessed fourth level will be barely visible from even the other side of the street. True, the building will replace existing single-storeyed structures, so that the existing higher line of buildings will be extended further to the west. However, this will change the extent of higher building but not, in my view, the overall character of the centre, which is already defined at its `upper' limit by tall, two-storeyed inter-war commercial-type buildings. I consider that the proposed building's scale will fit well within the scale of present buildings within this centre.

31 The other aspect of the building's scale that drew objection is the greater visibility that it would have in views from the north - either from the nearer dwellings in Verdun (or even Essex Street) or from the pathway through the park.

32 As Mr. Stewart submitted, this building is within a commercial centre and it is reasonable to expect people to have different expectations of the visual character of such a centre in comparison to surrounding residential areas. Having viewed the site form this pathway, I conclude that views from the north will, to a degree, be well screened or substantially broken by existing vegetation. (I also concluded, from my inspection, that the photomontage of the northern view of the proposed development had actually diminished the extent of screening by vegetation). The character of the proposed northern elevation will be much more attractive (a contemporary design, tidier) than the rather messy rear elevation of the existing premises with the untidy evidence of various on-site activities. I can only conclude that objections to the new elevation - taller than the existing but similar to other structures to the north - are more based on a dislike of or fear of change than on an objective consideration of the overall outcome of this change

33 One aspect of the design that appeared to particularly irk Council's urban designer (and was reflected in Council's requirements for design changes, as set out in its `Without Prejudice Permit Conditions) related to the intrusive nature of the lift overrun. The lift overrun would be project about 1 metre above the other roof elements, would be set back about 13 metres from the frontage and about 3.5 metres from the front of the recessed fourth floor. I do not understand how Council's officers reached their conclusion in relation to this element of the building as, in my opinion, this element would be barely discernible and certainly not intrusive.

34 Overall, I consider the proposed building to be of a suitable design. It is relatively contemporary, in a conservative way, and strongly articulated on its various elevations. I consider that it would be an attractive and complementary addition to the centre. The main difference between this building and existing buildings will be the absence of the proliferation of signage that occurs elsewhere around the centre.

35 In conclusion, I consider that the proposed development is quite satisfactory in terms of its urban design qualities.

36 The proposal includes 22 parking spaces in the basement, with a further 4 spaces to be provided on adjoining land that is the subject of an adverse possession claim (Mr. Steward submitted that this claim had a good chance of success). Removal of the right-angled parking off Riversdale Road will create another two kerb-side parking spaces. This would provide an overall net gain of 28 spaces (22 in the basement, 2 in Riversdale Road, 4 adjoining off the rear roadway) that would or could be subject to different management systems.

37 Council's traffic engineers assessed the parking requirements of this proposal on the basis of Council's parking policy (Clause 22.03). Mr. Baulch agreed that this policy dates from the introduction of the Boroondara new format planning scheme. In my view, it should therefore be treated as stale, having been superseded by the parking provisions of Clause 55 of the Boroondara Planning Scheme. I also consider it relevant to consider any empirical evidence - of the type produced by Mr. Walsh in respect to the interpretation of ABS data or car ownership by occupants of dwellings of different sizes.

38 I note that, while Clause 55 is not technically applicable because the building is four storeys, I consider that there is no reason why its parking provisions should not be as applicable to dwellings in a four-storeyed building as to those in a three-storeyed building.

39 On the basis of ABS data re car ownership in the City of Boroondara (and provided by Mr. Walsh), and using the 85 percentile of vehicle ownership by size and type of dwelling, Mr. Walsh had assessed that the total parking demand for residents would be 25 vehicles, including 3 visitor parking spaces. He estimated a further parking demand of 4 spaces for the show rooms, of which 2 would be for staff, two for shoppers. Therefore, of this total demand for 29 spaces, 22 would be for residents, two for staff of the showrooms, three would be short-term residential visitors, two would be short-term shoppers.

40 In my opinion, the visitors to the show room are not likely to park anywhere other than at the kerbside (if spaces are available) or in other readily accessible short-term public parking areas, likewise visitors to residents of the site, whose visits are more likely to fall outside business hours.

41 Mr. Walsh also noted that the parking for residents would be in excess of that required by Clause 55.

42 On this basis, I conclude that the building basement would provide adequate parking for residents.

43 Mr. Walsh had undertaken a survey on three occasions of parking demand in surrounding spaces and concluded that there was adequate capacity to accommodate any overflow of demand from this development. I accept this point.

44 One issue relating to parking demand in the locality that was raised by respondents and Mr. Baulch through submissions and cross examination concerned the parking in the rear roadway (Bonner Street). Informal parking in this road appears to be associated with employees of businesses in Riversdale Road. It also appears to include the temporary storage of cars being serviced at the garage that adjoins the subject site. It seems, from these observations, that informal parking practices that would not be accepted elsewhere may be the norm in Bonner Street.

45 In particular, the provision of 4 spaces on the land subject to adverse possession would require a continuous vehicular access to this piece of land across its eastern boundary. It appears that cars being serviced at the adjoining garage are typically parked in tandem across the front of this section of boundary, thereby blocking access to this approach. This practice would have to cease, which may cause some difficulties to the garage proprietors.

46 Completion and occupation of the proposed development may therefore require that any informal parking practices in Bonner Street should, in the future, be properly managed. In turn, this may create difficulties for other nearby land users that have been able to benefit from lax parking management. However, this is not, in my view, a reason to refuse a development that is acceptable in sound town planning terms.

47 Submissions suggested that the Bonner Street court bowl would not be large enough to allow a garbage collection truck to make convenient access to and egress from the site. Mr. Walsh opined that the available roadway would be sufficient for convenient manoeuvring. My inspection leads me to accept Mr. Walsh's judgement on this matter.

48 A further issue was that of whether it would be reasonable for the Tribunal to rely on the success of the proponent's adverse possession claim for the adjoining section of enclosed roadway. Mr. Stewart submitted that his client would accept a permit making the development dependent on the success of this claim. He also submitted that it would be appropriate for the Tribunal to decide whether

* Parking should be required to be provided on the area that is the subject of a current claim for adverse possession, and if so

* Should two or four spaces be required (the former would require that this space be raised up to be level with adjoining land to the east) and in any case

* Should any parking on this area be required to be under the control of the occupants of the subject site, or

* Should any parking be left for public access, under the jurisdiction of the City of Boroondara?

49 In one sense, the important issue is to provide adequate long-term parking for long-term users and, in other respects, to maximise the overall parking that is available in the area, to the extent that is equitable in the circumstances of this project. In this respect, the major difference between the two options of requiring 4 spaces under the control of the development's proponent and making the same area available to the general public is in relation to the long-term parking for 2 staff that are expected for the two showrooms.

50 The simplest proposal is to leave the plans as they are at present, which includes the requirement that these four spaces be constructed to appropriate levels. If the land is not included in the site, it is nevertheless appropriate that this parking still be provided, it will simply be available for public, rather than private use, and can then be managed by Council. The overall effect on the provision of parking will be the same, though its management regime will change. Overall, I consider this outcome acceptable.

51 Given that the parking provision is to be fairly closely tailored to demand, and demand as calculated by Mr. Walsh would be, for the two-bedroom units, 3 spaces for every 2 units, it is my view that there should be some flexibility as to which flats would have access to two spaces. It would not be desirable that some occupants of two bedroom flats might have two cars but only one space, while others might have 1 car but have two spaces attached to their unit. I will therefore include a provision requiring a parking management plan that will take this issue into account, while also providing some flexibility for future changes to parking allocation.

52 A major issue at the hearing was that of the potential for residents of the proposed development to suffer noise nuisance as a result of the presence of an engineering jobbing workshop (to the west) and a motor garage (to the east). In the event that such nuisance arose, the nature of the relevant SEPP N-1 would put the onus on the adjoining uses to meet the relevant standards for noise emissions, notwithstanding that the residential use was the later arrival. This appears to result from the fact that the guidelines were drafted without any regard to the order of arrival of different activities in a locality. In any case, the effect of the present guidelines is that, if the proposed dwellings are not adequately insulated, the adjoining industrial businesses would be obliged to mitigate the noise effects of their activities, at their own expense. As pointed out by Mr. Growcott, this would be feasible but inordinately expensive and, in the circumstances, unfair.

53 At the hearing there were submissions and expert opinion (from Mr. Growcott), including a written expert opinion from Ms. Hui of Marshall Day Acoustics, tendered by Mr. Stewart, relating to the likely extent of such nuisance and how the proposed building could be modified to ensure an acceptable outcome in terms of SEPP-N1.

54 The outcome of the evidence is that it would be feasible to include sound-attenuating measures in the design of the proposed building that would ensure that the noise levels measured by Mr. Growcott in relation to the activities in the jobbing workshop to would meet the requirements of the SEPP guidelines.

55 Whether the most appropriate outcomes involves removing some of the external balconies (and which this might be) or enclosing them as `greenhouse' rooms, would be a matter for the proponent. Unfortunately, the nature of the SEPP guidelines is that, once a balcony exists, the noise levels must be measured at the edge of the balcony, but if it does not exist, the noise levels can be measured within the rooms. This means that it may be more economic to give the occupants of the dwellings no balcony rather than a balcony that could be used on the many occasions when there is no noise nuisance from adjoining activities!

56 In these circumstances, one issue that is relevant to this decision is that of whether it would be acceptable to remove any balconies (i.e. so that some dwellings would have no immediate access to outdoor space) or to fully enclose them.

57 In this case, we have a four-storeyed building. There are many dwellings in taller buildings that do not have balconies. Also, in this case, the site directly adjoins, and many dwellings would overlook, are large park which would provide a valuable place for outdoor recreation by residents of this proposal. In these particular circumstances, I consider that it would be reasonable to not include open balconies.

58 At the conclusion of the hearing I directed the Mr. Stewart, Mr. Glossop and the representative of Boroondara City to jointly prepare a suitable permit condition (the nature of such a condition was discussed at some length during the hearing, with Mr. Growcott and Mr. Glossop suggesting appropriate wording) and to present it to the Tribunal within 10 working days.

59 After the Tribunal had made its oral decision, the parties discussed Council's draft permit conditions.

60 Mr. Stewart proposed deletion or elaboration of the following conditions:

* Conditions 1(a) and 1(b) and 1(h) relating to deletion of the third floor, requirements for further setbacks and deletion of the lift over-run. I accept, as this is encompassed by my oral decision

* Condition 1(c), relating to lighting of communal areas - which I propose to relocate as a general requirement within Condition 14 (External Lighting)

* Condition 1(d), which Mr. Stewart requested, in the light of my earlier comments, be changed to a general requirement for a parking management plan - which I consider appropriate, providing greater flexibility

* Condition 1(e) - which is already satisfied by the present parking layout (space No. 18)

* Condition 1(k) - which can be addressed by requiring the height of this door to meet the minimum requirements which, as discussed during the hearing with Mr. Walsh, can be achieved by regrading the adjoining ground levels

* Condition 1(l), relating to the width of end parking bays. However, the wording provides flexibility and Mr. Walsh was comfortable with this requirement.

* Condition 1(m), which relates to the area subject to adverse possession. My previous comments have dealt with this matter.

* Condition 1(n) relating to the acoustic outcomes. This is addressed in the separate condition drafted by the parties. With respect to the various submissions made subsequently by the various parties, I comment as follows:

o I accept that the initial acoustic report should be endorsed by the responsible authority

o I also accept that all that is required is an initial report setting out the requirements for the internal sound levels of dwellings, as affected by the noise from adjoining activities, will meet the requirements of SEPP N-1, followed by a final compliance report

o With respect to the final condition suggested by Mr. Stewart, I accept that it is desirable that the adjoining owners provide access to their premises to take readings of noise emissions (it is certainly in their interests), but at subsequent stages, when the new building exists, it should be sufficient to take noise readings within or at the face of the windows of dwellings in that building. I have therefore made appropriate, if minor, changes to the suggested wording. I accept Mr. Glossop's point that the first part of this condition should be worded to refer appropriately to any habitable area, including reference to open balconies.

* Condition 3, relating to a Section 173 agreement. Mr. Stewart submitted that

o Condition 3(a) should be deleted in favour of a separate condition relating to a parking management plan (agreed).

o Condition 3(b), relating to Council's attitude to residential parking permits for tenants of such buildings, has already been rejected by the Tribunal on a large number of other occasions.

o Condition 3(c) was debated, but I include a requirement that such an agreement (which has to be placed on title) should merely identify the fact that the subject site was, at the time the construction of the said dwellings was approved, located next to sites which were a source of potential noise nuisance (this will at least forewarn intending purchasers). I have adopted a modified form of the wording of the condition set out in the permit issued at the direction of the Tribunal in another matter (Application for Review 1998/101834 Established Tree Transplanters Pty Ltd v Shire of Campaspe and Anor).

o Condition 6 is accepted on the basis that it relates solely to the construction of the adjoining section of Bonner Street (which is what the words proposed by Council clearly state, notwithstanding Mr. Baulch's submission that, based on an interpretation of Condition 7, they should mean the whole length of this roadway). However, a silght an adjustment is needed to the wording of Condition 7 to ensure consistency with this interpretation (to not adopt this position would make a nonsense of Condition 6). I have also joined these conditions into one.

* Condition 16 - Mr. Stewart requested that this be amended to inserting, at the beginning, the words "if Council cannot. This seems reasonable, as it provides flexibility.

* Condition 19 to be deleted, as the matter of hours of construction should be dealt with as part of the construction management plan. A consequential change is required to Condition 20(a) so that it is not exclusive.

* I have proposed a new condition dealing with the acceptance by Council of a parking management plan that would ensure flexibility and effectiveness in the use of parking spaces on the subject site, including the use of disabled parking spaces.

Environment Act 1987

Macrobuild Pty Ltd v Boroondara CC [2004] VCAT 1989 (7 October 2004)

Macrobuild Pty Ltd v Boroondara CC [2004] VCAT 1989

At a glance

Court

Decision date

Source

Judgment (105 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Macrobuild Pty Ltd v Boroondara CC [2004] VCAT 1989 (7 October 2004)