Victorian Civil and Administrative Tribunal|2008-07-11

NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410 (11 July 2008)

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit.

NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410

The decision of the Responsible Authority is set aside. In permit application WH/2007/29 a permit is granted and directed to be issued for the land at 1 Trawool Street, North Balwyn. The permit allows ten dwellings in a three level building in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

This is an application to review the decision of the responsible authority to refuse permission for ten dwellings in a three level building, at 1 Trawool Street, Box Hill North. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
1. The proposal fails to comply with the Local Planning Policy Framework, including Council's Municipal Strategic Statement, particularly Clause 21.06, Housing and Council policy Clause 22.03, Residential Development in terms of respecting neighbourhood character and streetscape presentation.
2. The development fails to satisfy objectives of clause 55.01-2 (Design Response), Clause 55.02-1 (Neighbourhood Character), Clause 55.02-5 (Integration with the street), Clause 55.04 (Amenity impacts).
3. The development proposes inadequate front setbacks to Dorking Road, continuous built form, excessive height and massing, contrary to the typical scale, character, appearance and streetscape presentation of existing housing stock.

4. The proposal will result in a loss of residential amenity.

The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

The subject land is located on the north-east corner of Trawool Street and Dorking Road in Box Hill North. The land has an area of 982 square metres. (See plan overleaf)
The land is located at the western end of a small shopping centre (Neighbourhood Activity Centre). The land and the shopping centre were created in 1959 by the approval of a subdivision for the purpose of a petrol station and shops. The land continues to be used as a petrol station.
To the north, across an unconstructed laneway is another larger lot used as a child minding centre. The surrounding area is a remarkably intact post war residential subdivision dominated by single storey dwellings of the period.
Nearby facilities and services include:
- local shopping strip -directly to the east
- Kerrimuir Primary School - to the north
- Springvale Park -- 240 metres to the south
- Whitehorse Road - 1.2km from the site
- Box Hill Principal Activity Centre - 2km from the site

The land is affected by the Residential 1 Zone. A permit is required to construct two or more dwellings on a lot under the zone provisions. Development must meet the objectives of clause 55, ResCode

The proposal is for the construction of ten dwellings in a three storey building. In more detail the proposal includes:
- two, 1-bedroom dwellings at ground floor level, six, 2-bedroom dwellings at first floor level and two, 2-bedroom dwellings at second floor level;
- 14 car spaces, bicycle parking, storage etc. on the east side of the ground floor accessed from Trawool Street;
- 72% site coverage, 6% impervious surfaces and 22% permeable area;
- maximum building height of 9.6 metres along the south elevation and 9.8 - 10 metres along the west elevation;
- pitched cement-tiled roof with the exception of the glass roof over the foyer;
- extensive vertical and horizontal articulation to front facades and a range of finishes incorporating rendered fibre cement sheeting, stackstone and weatherboard lining to walls and glass balustrading to balconies;
- 7 mid-to-upper canopy trees along the Dorking Road frontage and approximately 4 new mid-canopy trees along the Trawool Street frontage.

as a consequence of the local topography the ground floor level is partially a "basement" in the north and east.

At the conclusion of the hearing the Tribunal gave oral reasons for its decision. A summary of the Tribunal's reasons are set out below.
Within the metropolitan policy there are three themes which require change in urban environments to accommodate demographic changes including population growth. They are urban consolidation, housing diversity, and affordability. Urban consolidation is concerned with the idea that urban growth should, as far as is practicable, be contained within the existing urban area. Housing diversity encourages the creation of new housing forms to accommodate more diverse household types. Affordability is a concern for the affordable provision of housing which meets the needs of the community. These three themes are a part of Melbourne 2030, but predated Melbourne 2030.
Another important theme in metropolitan planning is neighbourhood character a theme more concerned with the management of change than with change itself. Local planning policy must implement metropolitan policy and because most local policies are directed towards the management of the change required by metropolitan policy neighbourhood character becomes an important, perhaps dominant, element of local planning policy. Consequentially, neighbourhood character is often a central consideration in decision making in relation to new residential development.
Informed participants in the planning approval process recognise that strategies in relation to urban consolidation, diversity and affordability are equally important to strategies in relation to neighbourhood character. However, it is my concern that because neighbourhood character is inherently site specific and local in its application then neighbourhood character considerations dominate the debate about particular projects while consolidation diversity and affordability are reduced to a background hum in our thinking.
It is very evident that at this particular time in the history of our city we have both a housing crisis, essentially a crisis of affordability and a population growing at a rate greater than anticipated by Melbourne 2030. The causes of the current housing affordability crisis are highly complex, and are not solely related to housing supply, or more particularly the role of the planning system in affecting the supply of new housing. Nevertheless, it is the case that the planning system has failed to deliver urban consolidation, and the supply of diverse and affordable housing to meet the needs of our growing population[1].
I think there needs to be a greater emphasis on the importance of metropolitan policies in relation to urban consolidation, housing diversity, and affordability. I do not say that neighbourhood character is of less importance, rather I say that in each decision consolidation diversity and affordability need to be at the forefront of our thinking, and not merely a background hum.
In this case the subject land has particular attributes which mark its suitability for medium density development, and distinguishes its character from that of the surrounding residential area. These characteristics are:
- The historic use of the land for the purpose of a petrol station;
- The size of the land, it is the large site in the local context;
- The land's abuttal's, roads to the south and west, a child minding centre to the north, and a small neighbourhood activity centre to the east.
- The topography of the land which means that the proposed ground floor level is set below that on adjoining properties to the north and east;
- The solar orientation of the land.

Disregarding for a moment the subject land and the adjoining shopping centre, the surrounding area is a residential area based on an intact post war residential subdivision within which modest single storey dwellings of the period predominate. The planning policy framework classifies the surrounding area as a natural change area in which new development is required to respect the established character of the area. In such an area, in most cases one would conclude that an apartment building, let alone a three storey apartment building is unlikely to be regarded as responsive to the established character of the area.
However, the subject land is not an ordinary residential block within this uniform residential subdivision. It is as I said above distinguishable from land within the surrounding residential area. In my view the distinguishing characteristics of the land seen through the prism of metropolitan policy discussed above represents an opportunity achieved housing diversity and affordability of a type not reasonably achievable within the surrounding area.
It is nevertheless the case that a three storey apartment building is a very unusual development form for this area and the council in its submission advocated different approaches to the redevelopment of the land. It is interesting to consider the implications of different development scenarios on consolidation, diversity and affordability For example:
- If the apartment form is to be retained, the third level could be deleted. Such a change would result in the loss of two dwellings, and add to the cost of the remaining dwellings within the proposed development;
- Redeveloping the land with more conventional two storey town house type dwellings achieving a yield of perhaps five dwellings. This is a loss of five dwellings by comparison with the current proposal and it is probable that the five dwellings to be constructed would be less affordable;

In my opinion none of these changes can properly be regarded as desirable having regard to metropolitan policy in respect of consolidation, diversity, and affordability.

In some senses the council recognises the particular characteristics of the site and the extent to which they distinguish the site from the surrounding residential environment. Nevertheless the council then applies the generality of "natural change" policy prescription to the site to form a view that the proposed development is inappropriate disregarding the identified special characteristics. In my view this is clearly the wrong approach, the decision maker must recognise that policies are necessarily general in their application and consider the particular facts of the case to avoid a perverse outcome based on the generalised planning policy position.
Turning now to some of the more particular issues raised during the course of the hearing I make the following observations:
- Mr Frossinos occupies the dwelling in the office and dwelling to the east of the subject land, the interface between his dwelling and the proposed building achieves ResCode standards, an entirely acceptable outcome in his particular planning context;
- In my view some of the privacy screen measures shown on the plans, are excessive, and compromise the internal amenity of the proposed dwellings. While privacy screening is an important tool for managing amenity impacts, it must be remembered that screens can seriously compromise the amenity of the future residents, and the real need for screening needs to be carefully assessed. I will require changes by way of condition;
- There are conditions of permit in relation to stormwater detention which disregard the extent to which the site is paved and roofed as a consequence of its historic use as a petrol station.

It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

The permit allows ten dwellings in a three level building in accordance with the endorsed plans and subject to the following conditions:

Before the development starts, or any trees or vegetation removed, amended plans (three copies) shall be submitted to and approved by the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans by Blueprint Pty Ltd, reference 06-063/1, dated Oct. 2007plans submitted with the application but modified to show:
- (a) the deletion of privacy screening devices from:
  - (i) the balconies and windows on north façade, and;
  - (ii) the first floor bedroom windows facing into the internal light court
- (b) translucent glass in glazed balustrades to partially conceal objects stored on balconies;
- (c) the Dorking Road fence having timber slatting in a vertical rather than horizontal design with top capping;
- (d) the provision of on-site stormwater tanks for recycling and use for garden irrigation;
- (e) the provision of sun shading devices for Apartments 2, 6 and 7;
- (f) the gradients within the proposed parking bays and parking area are to be in accordance with Section 2.4.6 of AS 2890.1;
- (g) the ramp grades and width are in accordance with section 2.5 and 3.3 of AS2890. 1. This is to be demonstrated by providing a longitudinal section of the proposed ramps from the centre line of the road to and throughout the parking area;
- (h) all proposed columns location and spacing within the car park for the development are in accordance with clause 5.2 of AS 2890.1;
- (i) the headroom at the entry point and throughout the car park is in accordance with section 5.3 of AS 2890.1 and is to be demonstrated by providing a cross section; and
- (j) the sight distance at access driveways exits is to meet the requirements as per Section 3.2.4 of AS 2890.1;

All of the above must be to the satisfaction of the Responsible Authority. Once approved these plans become the endorsed plans of this permit.

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.
Prior to the commencement of construction works on site submit a car parking management plan to address the following:
- (a) designation of car parking spaces to individual tenancies and notation of visitor spaces;
- (b) detail the signing and line marking of spaces;
- (c) detail any access controls to the parking area, which shall take into account the queue length;
- (d) the provision of bicycle spaces in accordance with Clause '52.34, Bicycle Facilities of the Planning Scheme and Australian Standards A52890.3 1993, or as otherwise approved.

Before the development starts an environmental auditor appointed under the Environmental Protection Act 1970 must make a Statement in accordance with Part IXD of the Act that the environmental conditions of the land are suitable for the use. This Statement is to be submitted to the Responsible Authority.

All investigations for contamination of the site are to be undertaken in accordance with the National Environment Protection (Assessment of Site Contamination) Measure 1999.

(a) an evaluation of the environmental quality of the site;

(b) an assessment of the extent and type of contamination, and whether any clean up of the site is required;

(c) if any clean up is necessary, recommendations relating to the carrying out of the clean up; and

(d) any other remedial works required to provide for use of the site as proposed.

If there is a condition or requirement of Environmental Statement which has not been satisfied immediately prior to the completion of the development hereby permitted, the owner of the land shall enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 to comply with all such outstanding conditions and requirements. The cost of any such agreement shall be borne by the property owner.

Prior to any works commencing on the land a "Construction Management Plan" (CMP) must be prepared to the satisfaction and approval of the Responsible Authority, detailing how the owner will manage the environmental and construction issues associated with the development.
- (a) The CMP must address:
  - (i) any demolition;
  - (ii) bulk excavation;
  - (iii) management of the construction site;
  - (iv) land disturbance;
  - (v) hours of construction;
  - (vi) noise;
  - (vii) control of dust;
  - (viii) public safety;
  - (ix) traffic management;
  - (x) construction vehicle road routes;
  - (xi) soiling and cleaning of roadways;
  - (xii) discharge of any polluted water;
  - (xiii) security fencing;
  - (xiv) disposal of site waste;
  - (xv) any potentially contaminated materials;
  - (xvi) location of site offices;
  - (xvii) redirection of any above or underground services;
  - (xviii) site security lighting.
- (b) The CMP shall make provision for suitable washing facilities are to be provided and utilised on site for the cleaning of all construction vehicles prior to them exiting the designated property so as to prevent any grease, oil, mud, clay or other substance to fall or run off a vehicle onto a road, into any drain or under the road.
- (c) The CMP must be implemented to the satisfaction of the Responsible Authority and a contact name and phone numbers for the site manager must be provided to the Responsible Authority.

No building or works shall be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority. This plan when endorsed shall form part of this permit. This plan shall show:
- (a) a survey of all abutting street trees;
- (b) planting within and around the perimeter of the site comprising trees and shrubs predominantly of indigenous origin capable of:
  - (i) providing a complete garden scheme;
  - (ii) softening the building bulk;
  - (iii) providing some upper canopy for landscape perspective; and
  - (iv) minimising the potential of any overlooking between habitable rooms of adjacent dwellings.
- (c) the proposed design features such as paths, paving, lawn and mulch;
- (d) a mix of advanced European ornamental and shade trees, evergreen and deciduous in accordance with Condition 7; and
- (e) a planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.
Landscaping in accordance with this approved plan and schedule must be completed before the building is occupied.
The garden areas shown on the endorsed plan and schedule shall only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.
No street trees may be removed or damaged without the written consent of the Responsible Authority.

Provision must be made for the storage and regular collection of garbage, recyclables and other solid wastes associated with the permitted dwelling(s) to the ongoing satisfaction of the Responsible Authority.
The building and internal facilities are to be designed having particular regard to the accessibility and convenience of disabled people in accordance with the provisions of the Victoria Building Regulations unless otherwise agreed to in writing by the Responsible Authority.
All external lights must be of a limited intensity to ensure no nuisance is caused to nearby residential properties and must be provided with approved baffles, so that no direct light or glare is emitted outside the site.
Any plant and equipment proposed on the roof of the building must be screened in a manner to complement the appearance of the building to the satisfaction of the Responsible Authority.

Prior to the commencement of development a design for a stormwater drainage system shall be submitted to and approved by the Responsible Authority. The Stormwater drainage system shall be constructed prior to the occupation of the development to the satisfaction of the responsible authority.

The car parking areas and access ways as shown on the endorsed plans shall be formed to such levels so that they may be used in accordance with the plan, and shall be properly constructed, surfaced, drained and line-marked (where applicable). The car park and driveways shall be maintained to the satisfaction of the Responsible Authority.
Parking areas and access lanes must be kept available for these purposes at all times.
A car parking space for the exclusive use of disabled persons is to be provided and located to the satisfaction of the Responsible Authority. It shall be marked clearly with a sign to indicate its intended use and the minimum width of such a car space is to be 3 metres x 4.9 metres.
This permit will expire if one of the following circumstances applies:
- (a) the development is not commenced within two (2) years from the date of issue of this permit;
- (b) the development is not completed within four (4) years from the date of issue of this permit.

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

[1] Whether or not the causes of failure are solely related to the operation of the planning system.

Environment Act 1987

Environmental Protection Act 1970

NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410 (11 July 2008)

Parties

Legislation Cited (2)