Section 77 of the Planning & Environment Act 1987; Moonee Valley Planning Scheme;

Whether the building's scale, height and form is appropriate; whether the internal amenity of the dwellings is acceptable; whether the proposal will unreasonably constrain development opportunities on adjoining land; whether parking, access and the level of associated traffic is acceptable.

Mission Express Pty Ltd v Moonee Valley CC [2011] VCAT 1443

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

1. Mr. Cimone is joined as a party, but his submissions is limited to the effect of the proposal on the redevelopment potential of his site, adjoining to the east of the subject site.
2. The permit application plans are amended by substituting them with plans identified as SK01-SK10, Revision A, dated 29.04.11.
3. The decision of the responsible authority in relation to permit application no. MV/20863/2010 is set aside.
4. The decision of the Responsible Authority is set aside.
5. In permit application MV/20863/2010 a permit is granted and directed to be issued for the land at 108 - 110 Maribyrnong Road, Moonee Ponds in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Development and use of the land for a four storey mixed use building comprising of two retail premises and dwellings, a reduction in the statutory car parking, waiver of the requirement for visitor bicycle storage and the provisions for loading and unloading.

Mr. Graeme Peake, Barrister, by direct brief. He called, as expert witnesses, Mr. Mark Sheppard, urban designer of David Lock Associates, Mr. Shayne Linke, town planner of Contour Consultants Australia and Mr. Brownlie, traffic engineer of Cardno.

Ms. Lorraine Stupak, of LS Planning. She called, as expert witness, Mr. Benny Chen, traffic engineer, of ML Traffic.

Mr. Damien Loughlan, town planner, of Gattini & Partners, for Mr. Cimone.

A four-storey building with two shops on the ground floor together with a parking area and 24 apartments on the other three floors. The apartments range in size from studio (12) to one-bedroom (8) to two-bedroom (4). Cars enter the parking area from a rear laneway and parking is provided in a three-tier mechanical stacking system.

Application pursuant to s.77 of the Planning & Environment Act 1987 to review the decision of the responsible authority to refuse to grant a permit.

Business 2 zone. Adjoining land to the east and west is similarly zoned, together with land on the opposite side of Maribyrnong Road. Land to the north, across the rear laneway, is zoned Residential 1. Maribyrnong Road is zoned Road Zone (category 1).

Clause 34.02-1: use of land for dwellings in a Business 2 zone

Clause 34.02-4: buildings and works in a Business 2 zone

Clause 52.06: waiver of part of the requirement for on-site parking

Clause 52.07: waiver of the requirement for a loading bay.

Clauses 15.01-2, 21.02, 21.03, 21.04, 21.05, 21.06, 22.01, 22.13

The site is rectangular, situated on the northern side of Maribyrnong Road and one lot west of its intersection with Union Road and has a cobbled laneway across its rear boundary. It has a frontage of about 12 metres and an area of about 460 square metres. The buildings to the site's east and west are older buildings: one-storey commercial (to the east) and two-storey, reputedly residential (to the west). Permits have been granted for sites a little further west to be developed with buildings of three (now existing) and five storeys (now commencing construction), the latter having frontage setbacks for the higher levels.

The site contains a two-storey commercial building that is built to the street frontage and has rear vehicular access to an open yard.

There is also a three-storey apartment along the northern side of the rear laneway and a three-storey Victorian hotel diagonally across the intersection of Maribyrnong and Union Roads.

The site is situated in a Major Activity Centre with good public transport access (a tramline in Maribyrnong Road and one extending south along Union Road).

I made an unaccompanied inspection of the site and its locality on the 5th June 2011.

1. Council and objectors raised a number of issues: the size, scale and general siting of the building, the poor amenity that some of the dwellings would have (primarily daylight and outlook), car access and the loss of amenity of adjoining dwellings. The owner of the property to the immediate east was also concerned that the proposal would detrimentally affect the extent of opportunities for redevelop of his site.
2. The above issues are, therefore, those that I must address in this decision.

Would the building be too high, too prominent or otherwise inappropriate in scale?

1. Council submitted that improvements need to be made to the western elevation of the top floor, likewise to the northern and southern ends of the eastern elevation and that the northern elevation would have an unattractive presentation to the rear laneway and would create an undesirable canyon effect along the laneway.
2. I have concluded that in all these respects the western elevation of the top floor, the northern and southern ends of the eastern elevation and all of the northern elevation are acceptable.
3. None of the parties at the hearing contended that the proposed four storeys (reduced from 5 by the amended plans) was inappropriate. Rather, their contentions related to matters of relative detail. The building's height has been amended in accordance with recommendations of Council's urban design consultants to reduce its height from 5 to 4 floors and to provide a setback at the fourth level to the front and rear elevations[1].
4. The western elevation of the top floor is to be presented as a one-storey height strip of bronze-coloured metal "Lucobond", running across the top of an elevation that is patterned on lower levels in a Mondrianesque manner, using a light coloured grid with coloured infill panels. Council's urban design advisers, Hansen Partnership Pty Ltd, suggested that a number of small windows would improve this top strip. However, I prefer the opinion of Messrs. Linke and Sheppard that the top level of the western elevation is acceptable and, in any case, will be largely hidden from western views by the upper level of the yet-to-be-constructed 5-storeys of "The Claire", to the west of the subject site. I conclude that this part of the proposal's western elevation is not a significant or sensitive element and I consider it questionable as to whether inclusion of a number of small windows would even be an improvement.
5. With respect to the eastern elevation, this is to be strongly articulated by a wide, recessed central section with further articulation by balconies, and relatively plain outer-ends that are patterned by the concrete framework with textured finish within. Hansen Partnership Pty Ltd suggested that these panels include fire-rated windows. Again, I accept the opinions of Messrs Linke and Sheppard that these elevations are entirely acceptable; they contain sufficient visual interest and that additional windows on this elevation are, in terms of the proposal's external character, unnecessary.
6. With respect to the proposed northern elevation, in my view the rear laneway is not itself a sensitive interface and it is not necessary to provide significant setbacks to buildings along it. It is already faced by a number of garage entries, several with roller-shutter doors, and walls on boundaries. There is a three-storey wall along the laneway, opposite the subject site, of a site that fronts the western side of Union Street. This wall forms, effectively, the rear elevation to a number of dwellings that have their main outlook to the north.
7. The proposed building has its first three levels, along their northern elevation, abutting this laneway (or at least, the outer edge of their balconies do) and the fourth level is to be set back 2 metres. The height of the first three floors is similar to the three floors of the apartments opposite, which abut the laneway. The 2-metre setback of the fourth level will result in no one being able to see it from the laneway and only to a limited extent from the second and third levels of the apartments opposite. I understand that these apartments have only bedrooms facing the laneway. In these circumstances, I find that the extent to which the fourth level would be visible from the laneway, or from dwellings opposite, is acceptable. The apartments to the north are abutting a laneway that forms the edge of a Business 2 zone and a Major Activity Centre. In these circumstances, I consider that the balance between amenity and development opportunity is appropriate and that it is acceptable if this laneway of low pedestrian usage has a somewhat canyon-like character.
8. Overall, I conclude that the proposed height, setbacks and treatment of the elevations is acceptable.

Would the proposal's parking provision and traffic access be acceptable?

1. Council had originally objected to the adequacy of the access provided to the parking stacker. However, Council's consultant traffic engineer had, based on revised information, withdrawn his conclusion, as set out in his statement of evidence, and now accepted that access to the parking stacker is acceptable. Residents objected to the waiver of part of the on-site parking requirement and the additional traffic in the laneway which would give access to the on-site parking area.
2. Based on the concurrence of opinion between Council's and the permit applicant's traffic engineers, I find that the layout of the parking stackers and their associated accessway is acceptable.
3. Mr. Brownlie had calculated the demand for parking by reference to data from the Australian Bureau of Statistics, which indicated the actual parking demand associated with different sizes of apartment[2]. I accept that this is an appropriate basis on which to reduce the on-site parking from that required by Clause 52.062 subject only to the flexibility to allocate parking spaces from time to time to those residents who need them.
4. Mr. Galeotti was particularly concerned that delays caused by the normal operation of the parking stacker, together with the absence of on-site visitor parking, would create additional parking pressure on nearby streets. I accept Mr. Brownlie's evidence that the time drivers would have to wait at the parking stacker for spaces to become available is acceptable and would not impact on their use of it. He also gave evidence of the arrangements for the car stacker's prompt maintenance in the event of its breaking down. I accept that such breakdowns are sufficiently rare and of such short duration that this means of providing for on-site residents' parking in a Major Activity Centre provides an acceptable way to accommodate cars and maximise development opportunities.
5. With respect to the requirement that visitors park on-street, it is well established that peak visitor parking demand occurs outside peak business or retail hours, so that the former can take advantage of underutilised commercial parking areas. In other respects, this Tribunal has frequently supported the principle that the most appropriate means of addressing parking demand is on a centre-wide basis, using parking-precinct plans, rather than a site-by-site basis. In this case, as Mr. Brownlie pointed out, Council has a number of strategies it can use to manage parking conflict between residents in a residential zone and residents or businesses in a business zone.
6. I also find that the additional volume of traffic that would use the laneway is acceptable. Mr. Brownlie estimated that the additional peak-hour traffic would be about 10 vehicle movements in one or other direction (though being most likely to and from Union Road). He considered that this additional volume (one vehicle every 6 minutes) would have minimal impact on the operation of the laneway. The laneway, being cobbled, does not have the character of an important pedestrian route, the cobbles would also limit vehicular speeds and the low volume of additional traffic would therefore not affect pedestrian safety or amenity.

Would the internal amenity of the proposed dwellings be acceptable?

1. Council was concerned that many of the apartments would have unacceptably poor internal amenity: too much reliance on bedrooms with a secondary light source, many balconies being too small and some living rooms having a lack of outlook.
2. All dwellings have a balcony or courtyard but most balconies and courtyards are of less than 8 square metres area - varying in some cases down to 3.3 square metres. Some balconies have an outlook across Maribyrnong Road while others face across the northern laneway and others again closely face the side boundary, a boundary that could be subjected to redevelopment with a wall built to a greater height.
3. The argument against this arrangement is that balconies should comply with Standard B28 (i.e. 8 square metres) and that, below this size they would not provide for the reasonably recreation needs of residents. The argument put in favour of my accepting the smaller size was that the sizes of balconies are commensurate with the nature of their associated dwellings and that they satisfy the objectives of Clause 55.05-4 Private Open Space.
4. The smaller balconies are associated with the studio-apartments. While I am sceptical that anyone would wish to place a table and chair on them, they do allow the external door to be left open to provide a sense of greater openness. I accept Mr. Linke's suggestion that some of the smaller balconies on the first and second floors would be rendered more usable if the doors that open onto them are sliding or concertina-type, rather than outward swinging. The outward swing would conflict with any outdoor furniture. This can be addressed by a permit condition.
5. Secondary light is provided to the bedrooms in 5 of the one-bedroom dwellings and to a secondary bedroom in each of the 2 two-bedroom dwellings with the other two having skylights to the second bedrooms (all of the two-bedroom dwellings are on the top floor). The second bedrooms in the two-bedroom dwellings that are dependent on secondary light also have a small light well on an internal wall. In one case, this light well also illuminates a bathroom, in another it also lights the rear of the living room.
6. I consider that the proportion of dwellings with secondary lighting to bedrooms, or skylights, is acceptable in this instance. This housing is located in a business centre. The developer clearly intends to provide a form of more affordable housing by way of the commercial market rather than through government support. I find that the proposal does not involve an over-reliance on the use of secondary lighting and I consider that the use of skylights for a very limited number of secondary bedrooms is acceptable (skylights can give excellent, though less flattering, levels of illumination and these rooms have, of course, no outlook). I do agree with Mr. Linke that the east-facing windows along the balcony of Unit 16 should be modified to minimise obstructions to daylight by using continuous glazing rather than windows within masonry walls.
7. The variety of dwelling sizes, room configurations and day lighting arrangements certainly would create considerable variety in dwelling standards.
8. Mr. Linke and Mr. Sheppard agreed that some of the balconies and windows along the set-back section of the eastern elevation (which Mr. Sheppard sought to identify) would create problems of overlooking lower balconies or courtyards or other living rooms. These matters can be addressed by way of permit conditions requiring additional, appropriate screening.

Would the proposal cause any unreasonable loss of amenity for its neighbours?

1. Council was concerned that the proposal would cause loss of amenity to neighbours by way of overlooking. I have concluded that any concerns in this regard can be addressed by simple design changes.
2. Mr. Sheppard proposed that screening should be provided to the western end of the northern balconies to prevent overlooking of the secluded private open space of the property to the west. This matter can be addressed by way of permit conditions. He considered that screening to the northern balconies would otherwise be adequate to protect overlooking to the apartments to the north.

Would the proposal unreasonably restrict redevelopment opportunities on the adjoining site to the east?

1. Mr. Cimone was concerned that the proposed development, with habitable room windows facing towards and close to his site's boundary, would constrain the design of any redevelopment that he might consider for his site, which abuts the subject site on its eastern side.
2. I have concluded that the particular design before me does not create any constraint on the future redevelopment of Mr. Crimone's property.
3. The principle of development equity between adjoining sites requires that no development should be undertaken at the expense of other land with otherwise similar planning entitlements or opportunities. In practice, this would mean that development of one site should not borrow a benefit from across its boundary that places an equivalent constraint on the adjoining property. The most obvious example of such an inequity would be if one development relied on light from across its boundary and the future development of the adjoining site was constrained by an obligation to protect its neighbour's access to that light.
4. In this case, Mr. Cimone's specific concern is that while part of the proposed development involves boundary walls, there are portions, along the central section of shared boundary, where the proposed building is set back to provide light to some apartments and some of these apartments face directly towards Mr. Cimone's property.
5. The critical setbacks along the eastern elevation of the proposed development apply over the height of the first and second floors and affect the central section of this elevation. They provide light and air to a three living rooms on the first floor, two living rooms on the second floor and otherwise to a number of bedrooms, secondary living room windows, service rooms and courtyards on the first floor and balconies above. On the first and second floors, those primary living-room windows that face directly towards the boundary appear to set back by distances that exceed the requirements of the Building Act. A boundary wall could be built to the third-floor level or above without causing any contravention of the requirements of the Building Act and therefore would impose no implied or potential constraint on the neighbour's ability to develop along the length of its adjoining boundary. Consequently, although the amenity to some of these apartments will be low, I accept that this development will be providing a more affordable type of housing by way of the commercial market.
6. The third floor has substantially greater setbacks from its eastern boundary and would not impose any constraint on an adjoining redevelopment.
7. Council was concerned that the potential overlooking from balconies towards the east would also limit the adjoining site's development potential. At present, the adjoining property to the east is wholly commercial and no issue presently arises with respect to a loss of residential privacy. Beyond this, any concern is speculative and it would be unfair, in a business zone in particular, to constrain residential development because of what might happen on an adjoining site. If dwellings are proposed on the adjoining site, their privacy would be a matter to be address in their design. This is a case of each design responding to its current context. I differentiate the issue of overlooking, in this respect, from that of access to daylight, as discussed above.

Do any other matters warrant rejection of the proposal?

1. Council objected to the lack of identification to the residential entry as such, it being close to and somewhat similar to the entries to the adjoining shops. I have concluded that, with the proposed additional canopy and by changing the door to a single-swing leaf, the residential entry will be sufficiently differentiated from the shops.

1. At the conclusion of the hearing, the parties discussed Council's draft permit conditions.
2. I have amended the order of the conditions so that Condition 1 deals, as is traditionally the case, with the amendments required to the plans. I have also amended this condition to reflect the decisions I have made with respect to such matters as screening, door swings and so on.
3. I have amended the permit's preamble to reflect the fact that the residential use requires a permit and to acknowledge the waiver of visitor bicycle parking.
4. A have agreed to delete Council's Condition 1, as it is not a planning matter.
5. I do not consider that I have a basis to reject any condition relating to the potential for soil contamination. While this site is to be redeveloped in its entirety and the only sensitive uses are to be above the ground floor, there is still the matter of soil removal and the potential presence of contaminated vapours. I have therefore agreed to replace Council's Condition 2 (soil contamination) with a simpler version.
6. I have made minor amendments to Condition 8 (concealing pipes) and provided a simpler version of Condition 9, requiring a Works Management plan, leaving its scope to be resolved between the responsible authority and the permit applicant.
7. I have amended Condition 11 to provide a requirement directed to the proposed parking stacker machine and its maintenance.
8. I accept Mr. Peake's argument that on a development of this scale it is not feasible to provide the degree of cleaning that is needed to allow re-use of stormwater. I have amended the condition to refer to stormwater detention, if appropriate.
9. I have deleted Condition 13, which imposes a requirement for a major upgrade to the public stormwater system by way of constructing a barrel drain in Maribyrnong Road. I agree with Mr. Peake that there is no nexus between this development and this permit condition and the permit condition would therefore be unfair.
10. I have also deleted Conditions 15, 16 and 18. Condition 15 only states what is required by law. Conditions 16 and 18 (limitations on the hours of operation of the shops and loading/unloading activities) are not appropriate in a Major Activity Centre where such activities should, in principle, be relatively unconstrained.

1. Based on my above considerations, I have concluded that I should set aside the decision of the responsible authority and order it to grant a permit, subject to appropriate conditions.

Development and use of the land for a four storey mixed use building comprising of two retail premises and dwellings, a reduction in the statutory car parking, waiver of the requirement for visitor bicycle storage and the provisions for loading and unloading

Before the development starts, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans SK01-SK10, Revision A, dated 29.04.11 but modified to show:

(a) The residential entry at ground level, on the southern elevation to:

1. be provided with a large single door in lieu of double doors

2. include signage, which provides for a sense of address

(b) Additional screening to windows and balconies facing into the courtyards and balconies along the eastern side of the site to satisfy the reasonable requirements of Standard B22 of Clause 55.04-6

(c) The western alignments of the balcony associated with Dwelling 24 to be screened in accordance with Clause 55.04-6 of the Moonee Valley Planning Scheme

(d) Balconies of less than 2 metres width must be provided with access via a sliding or concertina-type door

(e) The windows and glazed door to the balcony of Unit 16 to be modified to maximise the area of glazing

(f) Skylights to the bedrooms of Units 21 and 22 to be vented.

(g) Any water retention system required by Condition 11

(h) A schedule of all external material and finishes. The schedule must show the material, colour (including colour samples) and finishes of all external walls, roof, fascias, windows frames, fences and paving

Once approved these plans become the endorsed plans of this permit.

With the exception of buildings and works associated with the undertaking of the assessment required by this condition, the construction or carrying out of buildings and works (including excavation) must not occur until an environmental assessment of the site, prepared by a suitably qualified environmental professional, is submitted to the Responsible Authority to its satisfaction.

• the extent of the soil testing carried out;
• details of the location, nature and level of any contamination identified on the land;
• details of measures to remove or effectively manage that contamination (management measures); and
• recommendations whether the environmental condition of the land is suitable for residential use, and whether an environmental audit of the land should be undertaken.

If the consultant's opinion is that an environmental audit should be undertaken, then before the development is occupied, either:

• A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
• An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land have been made suitable for residential use.

In the event that the management measures are required, or a Statement is issued in accordance with Part IXD of the Environment Protection Act 1970, before the development is occupied:

• all management measures of the site assessment or conditions of the Statement of Environmental Audit requiring immediate carrying out must be complied with to the satisfaction of the Responsible Authority; and
• written confirmation of compliance with this requirement must be provided by a suitably qualified environmental professional.

At the direction of the Responsible Authority, before the development is occupied, the owner must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to:

• ensure compliance with any management measures or conditions of the Statement that are of an on-going nature; and
• facilitate notification of future owners and occupiers of the land of the conditions attached to the statement.

Before the development is occupied, the owner must procure that the Section 173 Agreement is registered on the Title to the land. The owner must pay the costs of the preparation and execution of the Agreement and entry of the memorandum on Title, including any statutory fees.

The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

The privacy screens as shown on the endorsed plans must be installed prior to the occupation of the building.

Prior to the occupation of the development, all boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.

Service units, including air conditioning units, must not be located on any of the balconies or terrace areas unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.

All pipes (except downpipes), fixtures, fittings and vents servicing the building on site and below roof level must be concealed in service ducts or otherwise hidden from external views to the satisfaction of the Responsible Authority.

Before any building or works start, a Construction Management Plan must be submitted to and approved by the Responsible Authority detailing the construction activity proposed. Once submitted and approved the works detailed by the Construction Management Plan must be carried out to the satisfaction of the Responsible Authority.

Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

Before the use commences, a parking management plan must be submitted to and approved by the responsible authority. When approved, the parking management plan will become part of the permit. The plan must include

• the allocation of parking spaces to particular dwellings or commercial premises and the means by which this allocation can be readily identified
• the provision of maintenance for the parking stacker system
• a requirement that the roller door to the parking area is to be remotely controlled.

The parking management plan may be amended from time to time with the written agreement of the responsible authority.

A stormwater detention system to be provided and maintained to the satisfaction of the responsible authority.

Prior to the commencement of the development, the applicant shall submit a Waste Management Plan to the Responsible Authority for approval. The Waste Management Plan shall be in accordance with the City of Moonee Valley's "Waste Management Plans - Guidelines for Applicants" and once approved shall be implemented to the satisfaction of the Responsible Authority. The Waste Management Plan may be amended to the satisfaction of the responsible authority.

The amenity of the area must not be detrimentally affected by the use of land, through:

1. Transportation of materials, goods or commodities to or from the land.
2. Appearance of any building, works or materials.

1. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste produces, grit or oil.

This permit will expire if one of the following circumstances applies:

the development is not commenced within two (2) years from the date of issue of this permit; or

the development is not completed and the use is not commenced within four (4) years from the date of issue of this permit.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the responsible authority to extend the expiry date.

[1] Hansen Partnership provided two reports to Council. The first recommended a 2 metre northern setback to the fourth level, which has been adopted. The later report recommended that this setback be increased further.

[2] The ABS data for Moonee Valley indicates, according to Mr. Brownlie, that in Moonee Valley City, 76% of studio apartments, 43% of one-bedroom and 26% of two-bedroom apartments do not generate any demand for parking. Given that this is City-wide data, the parking demand for apartments close to good public transport, and themselves of lower rather than higher amenity, is likely to be less rather than more than these figures.