Victorian Civil and Administrative Tribunal|2004-03-24

Malvern East Property Pty Ltd v Stonnington CC [2004] VCAT 501 (24 March 2004)

Section 79 Planning and Environment Act; Review of failure to grant a permit within the prescribed time; Residential 1 Zone; Construct 65 dwellings in a two to six storey building over basement car park for 85 cars; Respect, reflect or complement neighbourhood character; Site responsive design; Incident factor on a main road; Oral reasons given

Stonnington City Council, Roads Corporation, Yuan Qui, Joe & Anna Pappas, Peter Breen, Sheila Sheehan and others

A permit is granted and directed to be issued in relation to Planning Permit Application No. 0171/03 for the land at 1283 - 1291 Dandenong Road, Malvern East. The permit will allow:

The construction of 65 dwellings in a two to six level building over a basement car park for 85 cars, a reduction to the Scheme's requirements for on-site car parking, alteration of access to a Category 1 Road Zone and the removal of an easement, in accordance with the endorsed plans.

The permit must be subject to the following conditions:

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed as evidence of their approval. The plans must be drawn to scale with dimensions and three copies provided. The plans must be generally in accordance with the amended plans substituted by the Tribunal in Application for Review P2410/2003 and Reference TP05/Rev B, TP06/Rev B, TP07/Rev A, TP08/Rev A, TP09/Rev A, TP10/Rev A, TP11/Rev A, TP12/Rev B, TP13/Rev B, TP14/Rev B and 2330/1D but modified to show:

(a) Sightlines at the vehicle entry/exit point(s) to comply with the relevant Australian standard.

(b) Headroom within the car park designed to the Australian Standard (AS 2890.1) with a minimum height clearance of 2.2m.

(d) The inclusion of a tree management plan to accord with Condition 8.

(e) The inclusion of detailed engineering plans to accord with Condition 14.

(f) The crossover to Dandenong Road service lane realigned to be 6m from the western street tree and 7m from the eastern street tree.

(g) A schedule of external materials, finishes and colours.

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

3 Before any development starts detailed functional layout plans - including engineering design and construction plans - for the intersection of Hyslop Parade, Dandenong Road and the service road, must be approved by the Responsible Authority. The layout must be designed to maintain the operational safety of the intersection by clearly defining right-of-way and vehicle paths through the intersection to the satisfaction of the Roads Corporation (VicRoads), and must be completed to the satisfaction of the Responsible Authority and VicRoads before any dwelling is occupied.

(a) A certificate of environmental audit must be issued for the land in accordance with Section 57AA(5)(b) of the Environment Protection Act 1970; or

(b) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of that Act that the environmental conditions of that land are suitable for the sensitive use.

A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.

5 The development must comply with the directions and conditions of any statement of environmental audit issued for the land.

6 Before any dwelling is occupied a letter must be submitted to the Responsible Authority by an environmental auditor accredit with the EPA, to advise that construction and remediation works necessary and required by an environmental audit or statement have been carried out.

7 Any handling and disposal of contaminated site soil must be in accordance with the requirements of any statement of environmental audit issued for the land, the requirement of the Environment Protection Authority and the Environment Protection Act 1970.

8 Before any development starts a detailed tree management plan (TMP) must be submitted to and approved by the Responsible Authority showing:

(a) The protection of trees in the surrounding parkland including use of pier and beam construction for the retaining walls, or other appropriate techniques;

(b) All tree species and size at planting and maturity proposed within the subject site, park land and road reserves to the satisfaction of the Responsible Authority.

The TMP must be signed by both the arborist and the builder/developer prior to it being submitted to the Responsible Authority for endorsement.

All costs associated with works to the immediately adjoining parkland arising from the subject development must be borne by the permit applicant.

9 The works shown on the endorsed landscape plan must be carried out and completed within three months of the completion of construction to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

10 Before the development starts, a report prepared by a suitably qualified person confirming to the satisfaction of the Responsible Authority, that the development achieves a minimum four (4) star energy rating using the Sustainable Energy Authority of Victoria First Rate system (or equivalent), must be submitted to the Responsible Authority.

11 The site must be drained to the requirements of the Responsible Authority and the discharge of water from the land by means of an underground pipe discharged to a point nominated to the satisfaction of the Responsible Authority.

12 Before any works are commenced the existence or otherwise of easements must be checked with the relevant water company and where necessary removed or relocated, at the owner's cost, to the satisfaction of the Responsible Authority.

13 The concrete paved section of Hyslop Parade between the kerb and the property must be removed to prevent stormwater run-off from Hyslop Parade into the property and replaced with a 1.5m wide standard concrete footpath at the owner's cost and to the satisfaction of the Responsible Authority.

14 A detailed engineering plan for the reconstruction of the new footpath showing all relevant levels and including the new levels of the proposed development must be submitted to and approved by the Council prior to the commencement of the development. The footpath must be constructed at the owner's cost, to the satisfaction of and under the supervision of Council. The nature strip must be reinstated to match the footpath levels. (Supervision and permit fees will be applicable.)

15 Any poles, service pits or other structures/features within the road reserve required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.

16 Air extraction fans, air conditioning and all other plant and equipment shall be baffled in accordance with the requirements of the Environment Protection Authority. Ventilation systems shall be designed and installed in accordance with relevant Australian standards to the satisfaction of the Responsible Authority.

17 Any external lighting must be designed, baffled and located to suitably manage any adverse effects on adjoining land to the satisfaction of the Responsible Authority.

18 All wastes generated from demolition, site preparation and construction shall be disposed of appropriately in accordance with the requirements of the Environment Protection Authority.

19 All garbage and other solid wastes must be stored and collected from within the curtilage of the site. This area shall be properly graded, drained and screened from public view to the satisfaction of the Responsible Authority.

20 All garbage collection from the development must be managed and conducted so as not to prejudicially affect the amenity of the locality by reason of noise or appearance.

(a) The development is not started within two years of the date of this permit; or

(b) The development is not completed within four years from commencement of construction.

The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or within three (3) months afterwards.

22 No polluted and/or sediment laden run-off is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

23 Finished floor levels must be a minimum of 300mm above the applicable flood level.

24 The entry/exit driveway leading to basement car parking must incorporate a flood proof apex of a minimum of 300mm above the flood level.

25 The drainage system is to be constructed so that external flooding is unable to penetrate the basement area.

26 Any earthworks must be done such that the volume of cutting within the overland flow path is equivalent or greater than the volume of filling. Prior to the commencement of works, volume calculations must be submitted to Melbourne Water demonstrating that the volume of filling does not exceed the volume of cutting.

27 Any vehicular and/or pedestrian access must be designed and constructed to comply with the following safety criteria associated with the applicable flood level. (A) Depth of flow does not exceed 0.35m; (B) Velocity of flow does not exceed 1.5m/s; (C) The Depth x Velocity product does not exceed 0.35 sq m/s.

28 Prior to commencement of works separate application, direct to Melbourne Water must be made for any new or modified stormwater connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council has considered that it is not feasible to connect to the local drainage system.

29 Any new fences on the eastern boundary must be of an open style of construction to allow for the passage of overland flows.

30 Prior to gaining approval from VicRoads to undertake works on Dandenong Road the developer shall:

(a) Provide a bank guarantee in favour of VicRoads without a termination date for a sum equal to the estimated cost of works.

(b) Provide evidence that the contractor has public liability insurance for at least $10 million effective for the duration of the works.

(c) Provide evidence that the contractor has developed and maintained a Quality Management System, Occupational Health and Safety System, Environmental Management System and a Traffic Management System, to the satisfaction of VicRoads.

(d) Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.

(e) Submit to VicRoads for approval, a traffic management plan showing the proposed provision for traffic and signing for the duration of the works at least 21 days prior to the commencement of works. The traffic management plan shall meet the requirements of VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice, which incorporates AS 1742.3-2002. Suitably trained personnel shall carry out traffic management/control.

(f) Arrange for the contractor to contact the VicRoads Surveillance Co-ordinator on telephone number 9881 8079 at least seven (7) working days prior to the commencement of works. (Please note that the contractor will be charged for the actual cost of VicRoads' surveillance, which may be undertaken at certain key times during the works.)

31 The standard of all materials and work shall be to the satisfaction of the Responsible Authority.

32 The applicant shall pay the full costs of all roadworks, drainage works, pavement markings, public lighting alterations, service relocations, signage and other costs associated with these works, ie. all works shall be undertaken at no cost to VicRoads or the Responsible Authority.

Mr Ian Pitt SC of Best Hooper Lawyers. He called the following persons to give expert evidence:

* Mr Jamie Govenlock, Town Planner with Urbis JHD Consultants;

* Mr Jason Walsh, Traffic Engineer with Grogan Richards Pty Ltd;

* Mr Michael Jefferson, Project Architect with Demaine Partnership; and

* Mr Tim Biles, Town Planner with Contour Consultants.

Ms Sue Brennan of Counsel, by direct brief. Ms Brennan called the following persons to give evidence:

Ms Roz Wilson, Solicitor and Urban Planner appeared for a number of the objectors as appended to her written submission.

Ms Sheila Sheehan, who was unable to attend, forwarded a written submission which was taken into account by the Tribunal.

Mr Leon Tsongas, Senior Planning Engineer appeared for the Roads Corporation on the first hearing day.

(Given orally following the hearing and subsequently revised)

1 This was an application under Section 79 of the Planning and Environment Act 1987 (P & E Act) to review Stonnington City Council's failure to grant a permit within the prescribed time for land at 1283-1291 Dandenong Road, Malvern East.

2 The land has an area of 4250 sq m and was previously occupied by the Reg Hunt car yard. It is bounded to the west by Hyslop Parade and beyond that the Urban Forest, occupying former rail line land. To the north, between Hyslop Parade and Sydare Avenue the site is bounded by an open parkland reserve. This reserve also extends in a 23m wide strip along the site's eastern side, bounded by Sydare Avenue. This strip is set aside as a floodway and is developed with trees and shrubs. The residential areas beyond the parklands comprise mostly single storey post-war housing, although two storey and more contemporary townhouse style developments exist within the area.

3 The application for permit had been advertised and 238 objections plus two petitions were received. Following lodgement of the failure application the Responsible Authority went on to consider the application for permit and resolved that it would have refused to grant a permit on the following grounds:

1. The proposed development is contrary to the objectives of the State and Local Planning Policy Framework pursuant to the Stonnington Planning Scheme as it does not adequately respond to its sensitive natural landscaped environment and low density and low rise residential context.

2. The proposal does not meet the objectives of Clause 19.02 Urban Design and Built Form in that it does not reflect the particular characteristics, aspirations and cultural identity of the community, nor does it enhance the liveability, diversity, amenity and safety of the public realm.

3. The design, layout, massing and footprint of the proposed development are incompatible with the neighbourhood character.

4. The proposal does not maintain or enhance the prevalence of the natural environment and landscaping over the built environment by virtue of its scale and the extent that it borrows from the surrounding parkland and the limited contribution it makes.

5. The proposed development by virtue of its height, density and layout has an undesirable level of overshadowing and overlooking occurring within the development.

6. The proposed development fails to adequately respond to site opportunities and constraints by virtue of the projection of parts of the car park above ground and the limited boundary setbacks, specifically from the surrounding parkland.

7. The proposed development fails to appropriate respond to all appropriate provisions of Melbourne 2030.

4 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) Mr Pitt requested the Tribunal to amend the application for permit by substituting revised plans for those that had originally accompanied the application.

5 Consistent with the Tribunal's practice note, notice of the revised plans had been given to all original objectors and persons notified of the application. The notice detailed the changes and outlined the permit applicant's intention to seek approval for their substitution. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, we made the amendment in the manner requested.

6 Also during the course of the hearing and without objection from the parties we amended the permit application to include permission to reduce the Scheme's requirements for on-site parking, to alter access to a Category 1 Road Zone and to remove an easement.

7 Following the hearing we made a detailed inspection of the land and surrounding neighbourhood in order to get a better appreciation of the evidence and issues raised by the parties.

8 Approval is sought to construct 65 dwellings in a two to six level building, over a basement car park for 85 cars. Due to the sloping topography, the basement would be partly out of the ground in the north-east corner of the site. Access to the basement would be via Dandenong Road.

9 The proposed building would comprise three built form elements as follows:

* A six level structure over car park, having a height above ground of between 19 and 21m and a generally elliptical shape. This element would be set back between 4 and 15m from Dandenong Road and would be aligned generally east-west across the block. It would come very close to Hyslop Parade but at an angle to that street and with a width of no more than 9m. Similarly, the six level element would come close to the floodway parkland but with an elevation or façade width of only 9m and set back some 33m from the residential properties on the east side of Sydare Avenue.

* A two level element comprising nine townhouses over the basement car park and with stair access to the car park. Three of these dwellings would front the park to the north and six would front Hyslop Parade, with a setback of between 1.5 and 3.1m.

* A three level element over the semi-basement car park extending north-south, parallel to the floodway park. The lower two levels would be set back 4m from the park boundary with the top level set back 8.9m from the boundary.

* A central open space spine flanked by the three main building elements and opening to the parkland to the north. This open space spine would incorporate an elevated, 25m long pool and would slope downwards to the north to connect with the parkland below a retaining wall, encircled by a glazed boundary wall.

10 The land is zoned Residential 1 under the Stonnington Planning Scheme. Within this zone a permit is required pursuant to Clause 32.01-4 to construct two or more dwellings. Because the development is of four or more storeys the ResCode requirements of Clause 55 are not required to be met. However, pursuant to the decision guidelines of that clause the objectives, standards and decision guidelines of Clause 55 are relevant matters to consider, as appropriate.

11 A permit is also required pursuant to Clause 52.06 of the scheme to reduce the Scheme's requirements for on-site car parking. The Scheme would require two spaces per dwelling whereas 85 spaces are provided for these 65 dwellings. However, given the number of bedrooms it was generally agreed that the provision met the standard set in Clause 55 and was acceptable.

12 A permit is also required to remove an easement across the land. This aspect of the proposal was not in issue and need not be referred to further.

13 Finally a permit is required under Clause 52.29 to alter access to a Category 1 Road Zone. The Roads Corporation or VicRoads is a referral authority for such applications. Mr Tsongas was in attendance at the commencement of the hearing. He urged us to include conditions requiring the preparation and implementation of a traffic management measures that maintained operational safety at the corner of Hyslop Parade and Dandenong Road. The Council and permit applicant did not contest the inclusion of such conditions and we agreed to their incorporation, should a permit issue.

14 The Tribunal was also advised of a proposed amendment to the Planning Scheme which would introduce a Special Building Overlay over a small part of the land. This overlay would be associated with the floodway within the strip of parkland to the east. The provisions of this proposed overlay were not in issue and the applicant indicated a willingness to abide by conditions suggested by Melbourne Water, who will become a referral authority upon gazettal of this amendment.

15 Clause 65 of the Planning Scheme sets out decision guidelines that must be considered, as appropriate, before deciding on any application for permit under the Planning Scheme. This clause commences with the following relevant statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

16 The decision guidelines relevant to this application include:

* The purpose of the zone - and in this regard the zone purposes refer to the need to provide for a range of residential densities and a variety of dwellings to meet the housing needs of all households, as well as to encourage residential development that respects the character of the neighbourhood.

* The State and Local Planning Policy Framework - and in this regard there was no argument that the Policy Framework also seeks to encourage housing diversity, to make more efficient use of existing urban infrastructure and reduce reliance on fossil fuels as well as to achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impacts on neighbouring properties (Clause 19.03).

* any matters required to be considered under the zone or other controls - and in this regard there are decision guidelines at Clause 52.06 referring to car parking and at 52.29 referring to access onto road zones. As noted already the objectives and standards of Clause 55 are also relevant but it is not a requirement that these objectives must be met, as the development is in excess of three storeys.

17 The principal issue in this proceeding was the scale of the six storey element - more particularly its visual impact on the nearby parkland and Dandenong Road and whether, in urban design or neighbourhood character terms it would be appropriate to locate a structure of this scale within a neighbourhood characterised primarily by post-war, mostly single storey housing.

18 Also in issue was the detailed design of the proposed dwellings and more particularly the extent of south facing windows, the general lack of opportunities for through ventilation, the ease of access to certain of the car parking spaces, the prospect for overlooking between dwellings and the degree to which the development integrates with the abutting parkland.

19 A further issue was the impact on existing vegetation within the park and on street trees in Dandenong Road. Following the giving of evidence by the Council's Arboriculturalist, Mr Mark Phillips, this issue reduced in significance provided care could be taken with boundary fencing and the driveway entry point could be adjusted to avoid a mature plane tree on Dandenong Road. We are confident that this can be achieved.

20 It is also useful to note what matters were not in issue. Notably there was no suggestion that this development would impact in any direct way on the amenity of nearby households due to factors such as overlooking, overshadowing or loss of daylight.

21 We were persuaded by the evidence of the architect Mr Jefferson, that on balance, the internal planning and layout of this development had been very carefully considered and represents a well designed outcome. There will be a number of south facing dwellings within the complex but these will nevertheless be light and airy, with views to the linear park further to the south across Dandenong Road.

22 We were not persuaded that the extent of south facing units or for that matter the difficulty in certain of the apartments to achieve through ventilation, represents an unacceptable outcome in terms of energy efficient design. The development can achieve a four star energy rating and while we would not deny that it would be desirable to achieve a greater level of through ventilation we accept that as a whole this development is more energy efficient than most conventional housing.

23 On the subject of daylight to certain bedrooms which have windows stepped in from the façade, we accept Mr Jefferson's advice that this is not an uncommon solution for daylighting in developments of this nature. We note also that these are secondary bedroom windows and that the outcome is better than skylights or light courts.

24 On the matter of overlooking between dwellings within the complex, we are generally satisfied that this amenity issue has been addressed to an acceptable degree either due to balcony placement or the provision for screening to courtyards.

25 A further issue raised by Ms Wilson was the location of certain of the tandem spaces that would of necessity be allocated to the townhouses. We agree that for some of these townhouses their associated car spaces would not be particularly convenient. We note however that each would be capable of having at least one space close to its basement stairway. Although we accept that the basement could be redesigned to allow for greater accessibility we have been persuaded, based on the evidence of Ms Frank-Mas, that it is better to maintain her design, that allows for the central open space spine to connect gently with the parkland, than to upset this design by expanding the basement.

26 A final issue that can be referred to in this section of internal amenity is that of the permeability between the development and the abutting parkland - especially between the north-south wing and the floodway parkland. We noted that there were different views on the urban design merits of connecting the individual apartments through to the parkland. We accept that on balance the proposed design, which provides for no direct connection, is appropriate due to the elevated nature of the ground level apartments within this wing. The balconies will enable good surveillance of the adjoining parkland while not cluttering up the parkland with individual entry gates and connecting pathways. This outcome also provides for a more integrated approach to the maintenance of landscaping within the site's eastern boundary setback.

Visual Impact on Local Urban Character and the Public Realm

27 The Planning Policy Framework, including Clause 19.03 and the Local Policies at Clauses 22.06 and 22.02, referring to residential interfaces and to urban design, encourage new development to respect the character of an area, reflect the particular characteristics, aspirations and cultural identity of the community and reflect the scale, character and appearance of surrounding residential areas. Even for large sites, where the Urban Design Policy at Clause 22.02 acknowledges the opportunity for higher scale development, a development is to be designed to reflect and complement the built form character of the surrounding area.

28 It was submitted by the respondent parties that any development incorporating a six level element could hardly be described as respectful of or reflecting the characteristics, scale or aspirations of this particular East Malvern neighbourhood.

29 It was further suggested that no overriding weight could or should be given to the site's proximity (in excess of 500m) to Chadstone - Australia's largest stand alone shopping centre. This it was submitted was due to the fact that even in the context of the Metropolitan Strategy - Melbourne 2030 - the site was too far removed and separated by major roads to be likely to fall within any transitional, higher density residential precinct of the future.

30 A further argument put against the proposal was that there was no basis for finding - as provided at Clause 19.03 - that a higher scale development was appropriate due to any landmark or gateway qualities of this particular site.

31 Finally it was submitted, based on the recently released Urban Development Program, that the housing contribution required to be made by Malvern East, in the context of the eastern region, was not so significant as to warrant a greater density of development on this particular site, if it was to be at the expense of neighbourhood character.

32 We have to say that our initial response to this development was to also doubt the ability for a development incorporating a six level element to be comfortably accommodated within this parkland and generally low scale residential environment.

33 This however was before hearing the evidence of Mr Biles and to some extent that of Mr Jefferson and prior also to our making a further and very detailed inspection of the site and its surrounds.

34 Upon detailed analysis we agree with Mr Biles that the six level element will be mostly masked by the foreground views of the townhouses and three level, north-south wing parallel to the site's eastern boundary.

35 From the north, within the open parkland, the townhouses and the north-south wing will project some 35 to 50m forward of the higher central element. With the benefit of perspective the perceived height of the central element will not be so great as to appear overwhelming when set against the one and two storey dwellings abutting and rising up from the park's eastern and western sides.

36 The scale of the three, north facing townhouses will be entirely consistent with the other dwellings on view within the park - for example the more recent townhouses on Sydare Avenue and the two storey dwelling on the triangular shaped allotment between Hyslop Parade and the Urban Forest. We also noted in the course of our inspection that there are a number of two storey extensions underway in Hyslop Parade, further entrenching a two storey scale within this neighbourhood, and that this new development does not look at all out of place.

37 The break along the northern edge of the proposed development - that is to say between the townhouses and the end façade of the north-south wing - will, we accept, provide visual relief to the development along this boundary. Indeed we commend Ms Frank-Mas' approach of merging the park and central open space area with a stepped down amphitheatre arrangement to be separated from the park by a slight retaining wall and glazed balustrade. We acknowledge also that this will constitute a significant improvement on the current Reg Hunt car yard wall that extends along this boundary. We say in passing that our inspection suggested the possibility of using the upstands in this existing wall as a retaining wall mechanism, thereby preventing any impact on tree roots within the park.

38 Along the site's eastern boundary the north-south wing has its upper floor recessed some 4.9m behind the two lower levels making the two lower levels the more dominant element within the floodway parkland. This we consider to be entirely complementary in scale with the more elevated Sydare Avenue dwellings, some 33m to the east and separated by the parkland's existing vegetation and the obvious potential for future vegetation.

39 Much criticism was directed at the 9m wide eastern elevation to the higher, six level element where it transects and indeed overhangs the north-south wing, coming virtually to the park boundary. This element would achieve a height to the penthouse roof of some 21.7m although we note that the leading edge - that is to the penthouse level's balcony - would be 19.4m.

40 These heights can be compared with the height of the very significant Eucalyptus Saligna located closer to Dandenong Road which has a height, according to the plans submitted with the application, of 18m.

41 We have not been able to be persuaded that an element of these proportions, beside the two to three level north-south wing and in the context of existing trees - both foreground and background - will detract from the existing character of this area. In other words we accept that the character of the surrounding area will not be changed or undermined as a result of this added element. We agree with Mr Biles that the situation would be entirely different if this six level element was abutting or within the same viewshed as any existing dwelling. However, for the most part it would not be viewed in concert with these dwellings without the substantial setbacks of the parkland and its intervening vegetation.

42 Similarly, on the western side, the row of two storey townhouses fronting Hyslop Parade would not be viewed against any backdrop of existing post-war housing. Instead these townhouses would sit opposite the Urban Forest and with the more open parkland forming a backdrop to the north.

43 We are entirely persuaded that in an urban design sense these townhouses will provide a positive enhancement to Hyslop Parade - replacing the very unattractive Reg Hunt car yard and associated office building with a new and very well considered edge to the important urban forest to the west.

44 The final viewsheds to consider are those from Dandenong Road, namely views from the east and from the west.

45 We were particularly impressed by Mr Jefferson's account of how he deployed the existing vegetation, topography and projecting north-south wing to in effect mask or mediate the perceived height of the six level element to persons travelling west on the opposite side of Dandenong Road.

46 The more dramatic viewing angle is from the west, that is for persons travelling east along Dandenong Road. From this direction - once in view due to the alignment and slope of the road - the building will be seen against a foreground of the urban forest. We consider this to be an appropriate visual buffer compared for example to a situation of the building being hard up against low scale housing.

47 We acknowledge that from this perspective the site has traditionally and even with the urban forest, would present as a point of difference along Dandenong Road. This point of difference was referred to by Messrs Jefferson and Biles as an incident factor or punctuation to Dandenong Road.

48 The proposed development would maintain this existing incident factor, replacing the car yard surrounded by open space with a building of some architectural refinement - albeit of some scale - also surrounded by open space.

49 It is our conclusion however that the proposed development would not be of such scale as to draw any more attention to itself than the other structures noted by Messrs Jefferson and Biles that already punctuate the journey along Dandenong Road - including Chadstone, the Church of the Holy Eucharist and the Monash Campus at Caulfield.

50 Furthermore, the scale of this development would not be read against the context of the more residential hinterland to the north and north-east and could not be said therefore to impact upon the character of that hinterland.

51 Having found that the proposed development, by virtue of its particular siting, design and massing would not undermine or erode the existing character of the area and therefore not be disrespectful of that character, it follows that there is no need to balance any disrespect for character against other outcomes sought by the Planning Policy Framework and Melbourne 2030.

52 There was no suggestion that the proposed development, by providing for increased residential densities in an established urban area and adjacent to a main road and public transport was not otherwise consistent with the relevant provisions of the State and Local Planning Policy Framework. Accordingly, given our findings in relation to the development's respect for its neighbourhood context, our ultimate conclusion is that this development presents an acceptable outcome in terms of the relevant decision guidelines of Clause 65 of the Planning Scheme.

Malvern East Property Pty Ltd v Stonnington CC [2004] VCAT 501

At a glance

Court

Decision date

Source

Judgment (138 paragraphs)

Malvern East Property Pty Ltd v Stonnington CC [2004] VCAT 501 (24 March 2004)

Parties