Natale & Anor v Minister for Planning & Anor [2010] VCAT 1592

1. The decision of the Responsible Authority in permit application no. PDA09/0068 is varied. A permit is granted and is to be issued. The permit relates to the land at No. 39 - 41 Pultney Street, Dandenong. The permit will allow use and development of the land for shop, office and multiple dwellings, a reduction in car parking and waiver of a loading bay in accordance with the endorsed plans. The permit is subject to the conditions contained in the Notice of Decision issued by the Responsible Authority on 23 March 2010 subject to:
   • (a) The addition of a new condition 1 as follows:

Before the development starts, 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 and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be providedvided. The plans must be substantially in accordance with the plans submitted with the application but modified to show:

1. Corrected directional references on plans including elevations.
2. Glazing details for the first floor, north-west facing, office windows.

1. Details of screening and baffling to the "AC Plant (office)".

1. The location of bicycle parking in accordance with Clause 52.34.

(b) At the end of Condition 3 add the words "In the selection of plant species, consider the impact of tree roots on abutting structures."

(c) Renumbering of conditions as required.

Mr T Radisich, Associated Town Planning Consultants.

Section 82 of the Planning & Environment Act 1987.

Construction of a seven storey building comprising a basement car park, ground floor retailing and parking, 1st floor office with three tenancies (total 1,364 square metres) and 74 dwellings. A total of 92 car spaces would be provided with access from Pultney Street.

• Clause 34.02 for use and development of the land for shop, office and multiple dwellings.
• Clause 52.06 for a reduction in parking.
• Clause 52.07 for waiver of a loading bay.

Clauses 10, 11, 15, 16, 21, 22.07, 52.06, 52.07, 52.34, 52.35 and 65.

The site is on the south-east side of Pultney Street. It is 2,024 square metres and abuts three units to the north-west, parking to the south-east and Law Courts to the north and north-east. Parkland is opposite.

1. Mr and Mrs Lissoni live in a dwelling that is adjacent to a property where it is proposed to construct a seven storey mixed use development. Their home is the middle of three units at No. 37 Pultney Street that sit in a block that comprises police and Court facilities, car parking and the vacant review site. Through this Application, they have sought review of a decision by the Minister for Planning to determine to grant a permit for the proposal.

1. As a result of the zoning that applies to the land, some aspects of the proposal are exempt from third party review notably the buildings and works components through Clause 34.02. As some of the Linossi's grounds are linked to both the intensity of the proposed land uses plus the development, as well as matters such as car parking, I will address all of the submissions presented by Mr Linossi on behalf of his parents. In so doing, I do not recite all of the submissions by the parties but have considered all of them having regard to the relevant provisions and policies of the Greater Dandenong Planning Scheme assisted by my inspection.

1. The three dwellings at No. 39-41 Pultney Street are isolated. They are in a Business 2 Zone that is part of the Greater Dandenong declared project area for which the Minister for Planning is the responsible authority. This area is targeted as a central activities district through Clause 11 of the Scheme and a location where more intense housing development is sought. This is reinforced through Clause 21 and Clause 22.07 where "only higher density housing" is encouraged on land, such as the review site, that is within the activity centre. The local policy reinforces the basis and rationale for this approach including an emphasis on pedestrian trips with a defined vehicle/bicycle/pedestrian hierarchy. The built form and design policy states that buildings will be higher rise and five storeys or more. Buildings of less than five storeys are discouraged. A focus of ground level spaces and facades is to achieve an active interface with the public realm.
2. I think it is fair to observe that the amenity of older existing dwellings is not a priority in the policy because of the vision that is sought to be implemented. This is not mentioned in Clause 22.07 although I note that the Design Guidelines for Higher Density Housing, required to be considered through State policy, have design objectives relating to existing dwellings including some reliance on elements of Clause 55 even though that does not apply. An example is design objective 2.6.
3. It is, therefore, self-evident that a high scale development on the review site is expected even though the low rise, three units, remain.

1. Mr Linossi expressed concern about the intensity of the proposal including the amount of office space and number of dwellings.
2. Given the policy emphasis that I have briefly summarised above as relevant to the current case, the amount of housing proposed is acceptable. There is a schedule to the Business 2 Zone that has a limit on offices but this is a permit trigger and does not set a ceiling on office floor area. The amount of office use in the proposal is relatively modest and is acceptable.

1. Mr Linossi expressed concern about the reduction in car parking sought by this proposal and submitted more should be provided to support the intended uses having regard to the standard parking rates in Clause 52.06.
2. The development is provided with 92 car spaces of which 1 would service an 86 square metre shop; 2 would service a 40 seat cafe, 30 would service 1,364 square metres of offices, and 59 would service 74 dwellings. Having regard to the aims of State and local policy to reduce car dependency in a location such as this, not add to it, so that a reduction from the standard parking rates is acceptable. That is consistent with parking guidelines for Central Dandenong that is a draft. I note that the shop and cafe are likely to find a market based on walking trips given the nearby Court and police complex. Further, the amount of parking for the dwellings is acceptable given the availability of bus and other transit facilities. Most dwellings are one and two bedrooms with 4 three bedroom.
3. The office component is less than the standard rate in Clause 52.06 and falls five spaces short of the volume of parking recommended in the draft guidelines. I find this to be acceptable given the location and overall volume provided for this use. The traffic report accompanying the permit application suggested a green travel plan be adopted for the office use. Mr Linossi suggested this be a permit condition but I do not intend to add it given the small scale of the office use and the modest shortfall from a draft guideline.
4. Additional bicycles are recommended in the traffic report but do not seem to be included as a permit condition. Bicycle areas are shown but I will add a condition to ensure compliance is achieved with Clause 52.34.

1. While it may be said this is outside the ambit of my discretion, screening devices are included in the design. There is some potential for viewing from the Linossi's balcony into the offices but less potential for the reverse viewing. Mr Radisich said the glazing for this panel of office windows could be treated. I will not require any specific screening measures but will require the details of glazing to be shown on the plans.
2. Tree planting is also proposed along the common boundary with the existing dwellings. Mr Linossi sought a deeper setback but I do not agree that 3.4 metres is too shallow. He was also concerned about the potential for tree roots to affect his building and proposed a tree root barrier. There is currently no detail as to the plant species and thus I am not in any position to conclude a tree root barrier is essential. I will, however, include a reference to tree root impacts in the landscaping condition. Any renewal of boundary fencing will be addressed through a landscaping plan or otherwise addressed between neighbours.
3. I do not consider the intensity of the use should be reduced because of impacts such as shadowing and visual bulk to the abutting properties. The physical form is not unexpected given the policy imperatives that apply.
4. There is a large air conditioning plant shown to service the office that could have an impact on the adjacent dwellings. It would need to comply with SEPPN-1 and I think it would be appropriate for the details of its screening and baffling to be shown on endorsed plans as I mentioned at the hearing.
5. Potential issues arising as a result of construction raised by Mr Linossi are usually dealt with through the building approval process.

What about submissions concerning the layout and operation of the uses?

1. Again these matters are probably outside my ambit but I note that permit conditions will address the various detailed design matters raised through Mr Linossi's submission such as the location of mail boxes, arrangements for waste management and construction management. A waste management plan was submitted with the permit application and can be revised as required in the endorsement of a plan.
2. There are a number of errors on the floor plans and elevations with respect to directional references, as discussed at the hearing. These require correction.

1. For the above reasons, I find the proposal is acceptable subject to some minor changes. The aim of State and local policy is to achieve significant change in this area to give effect to the outcomes being sought to create a central activities district. Clearly there will be impacts on the remaining three dwellings but those impacts cannot override the achievement of the express outcomes sought by the Scheme.