Victorian Civil and Administrative Tribunal|2014-12-22|Before: Ocean Beaumaris P, Mr J

The application is allowed. Pursuant to section Section 87A of the Planning and Environment Act 1987, Planning Permit No. PL2012/483/1, as amended up to 14 October 2014, issued by the responsible authority in respect of the subject land, is amended as follows.
The description of what the permit allows is amended to read:
- Construction of more than one dwelling on a lot;
- Partial demolition; the construction of buildings; and the construction and carrying out of works;
- use of land in the Commercial 1 Zone for dwellings; and
- use of land for the sale and consumption of liquor

Reduction of the car parking requirements associated with the use of land for dwellings, shops and restaurant.
Waiver of the loading bay requirements.

The building at 34 Bodley Street ('Building B') to be shown as approved on the endorsed plans containing 8 dwellings. 2. Modifications to the internal layout of Dwelling LG.01 generally as shown on the diagram 'Option 1 - 1 bedroom unit'.

Modifications to the balcony of Dwelling G.11 generally as shown on in Figure 12 of the evidence report by Mr Tim Biles, Message Consultants Australia Pty Ltd dated October 2014.

Modified landscape plan, generally in accordance with the plan by Memla, Drawing LC Rev I, dated 9 July 2014 but with changes reflecting the retention of Building B as shown on the endorsed plans.

Tim Biles, Planning Consultant, Message Consultants.
Mr M McFall, Landscape Architect, Memla

The proposal seeks amendments to an existing residential development to increase the number of dwellings by 11 with consequential changes to the building footprint, basement car parking and landscaping.

Application under Section 87A of the Planning and Environment Act 1987 - to amend permit no PL2012/483/1 issued at the direction of the Tribunal in Application P810/2013.

Part Commercial 1 Zone [C1Z] (part)

Cl. 31.02 & 34.01-1 (use of land in the Commercial 1 Zone for dwellings).

Cl. 32.01-4 (the construction of two or more dwellings on a lot in the Residential 1 Zone)

Cl. 34.01-4 (the construction of a building and the construction and carrying out works on land in the Commercial 1 Zone).

Cl. 43.01-1 (demolition; the construction of a building; and the construction and carrying out of works on land in Heritage Overlay - Schedule 66).

Cl. 43.02-2 (the construction of a building and the construction or carrying out of works on land in Design and Development Overlay - Schedule 1).

Cl. 52.06-3 (reduction of the car parking requirement).

Cl. 52.27 (use of land for the sale and consumption of liquor).

Clauses 10, 11, 15, 16 21.02, 21.03, 21.06, 22.06, 52.06, 52.07, 52.27, 55 and 65.

The subject land comprises two adjoining lots creating a large redevelopment site with an area of about 4495 square metres located on the corner of Beach Road and Bodley Street, Beaumaris. The site comprises land previously occupied by the former Beaumaris Hotel and associated car park. The larger of the two lots is zoned Commercial 1 on the corner of Beach Road and Bodley Street. This lot contained the former hotel building. The smaller lot, located to the east fronting Bodley Street, was used as a car park associated with the hotel. The Bodley Street lot was zoned Residential 1 at the time the permit was granted, however, has since been included in the Neighbourhood Residential Zone. The site as a whole is undergoing redevelopment with the former hotel building largely demolished save for the street facades. Substantial excavation to provide for a basement is also being undertaken.

To the south are commercial premises that front either Beach Road or Keys Street. To the west is a residential property occupied by a detached single-storey dwelling. On the opposite side of Bodley Street are a two-storey dwelling, an apartment-style building and the Beaumaris Motel. To the east, on the opposite side of Beach Road, is the Beaumaris foreshore reserve.

, is within the Neighbourhood Residential Zone Residential 1 Zone and accommodates the remainder of the hotel's car park. The combined land holding is irregular in shape; has a 53.21 metre frontage to Beach Road, a 94.73 metre sideage to Bodley Street; and an overall site area of approximately 4495 square metres. To the south are commercial premises that front either Beach Road or Keys Street. To the west is a residential property which is occupied by a detached single-storey dwelling. On the opposite side of Bodley Street are a two-storey dwelling, an apartment-style building which is currently under construction, and the Beaumaris Motel. To the east, on the opposite side of Beach Road, is the Beaumaris foreshore reserve.

Oceans Beaumaris Pty Ltd v Bayside CC (Correction) [2013] VCAT 1422

Callea Property Developments v Wyndham CC [2014] 466

See Bestway Group Pty Ltd v Monash CC [2008] VCAT 860

Becton Living v Stonnington CC [2008] VCAT 1195

In August 2013, the Tribunal granted a permit allowing the redevelopment of the 4495 square metre former Beaumaris Hotel site for a substantial mixed-use development comprising a number of retail/commercial, but predominantly for apartments and townhouses[2]. The approved development comprises three main components. The largest component, identified as 'Building A', includes the facades of the former hotel building and provides for retail commercial tenancies fronting Beach Road with the balance divided into residential apartments. This building includes the area previously occupied by the hotel onto which a large 'wing' fronting the south of Bodley Street is added. 'Building B' comprises a two storey building for 8 apartments located on the former car park land comprising 34 Bodley Street whilst a row of four double storey townhouses is provided in 'Building C' located along part of the south boundary adjacent to a laneway.
The developer, Ocean Beaumaris Pty Ltd, has lodged an application with the Tribunal seeking approval for amendments to the permit. In substance, the amendments seek approval for an additional 11 dwellings. Seven of these are to be provided within 'Building A' , comprising four new apartments within a lower ground floor level, with three additional apartments provided through the reconfigured area within the 'west wing' including a new mezzanine level within the roof space. The two-storey apartment building, 'Building B' is replanned and extended to the south boundary to provide for three additional apartments while one additional town house is proposed in 'Building C'. Variations in height, built form and the design of the basement are required. Changes to the basement include the provision of 27 additional car parking spaces, additional storage cages and a modified design allowing for split-level floor level.
The Council and Ms Gray, the owner and occupier of the neighbouring property at 32 Bodley Street which is to the west of the former hotel car park, oppose the amendments. They say that the zoning of the land and the strategic context that now applies do not support the increase in density. They also submit that the proposed changes will have adverse impacts on the neighbourhood character and the amenity of neighbouring properties while some of the new apartments provide poor internal amenity.
The key issues in this case are:

Do the strategic context and zoning support the proposed increase in density? 2. Will the proposed changes have an adverse impact on the neighbourhood character and amenity of neighbouring properties?

Do the proposed new dwellings provide satisfactory amenity for future residents?
Having considered the submissions and evidence, the details of the proposal and the relevant matters under the planning scheme and legislation, I conclude that some, but not all of the proposed amendments are acceptable. I approve the amendments subject to some changes which reduce the number of extra dwellings by 3. Specifically, approval for changes to 'Building B' is not given. I am unable to find that the strategic context and zoning support the proposed amendments to this building.
I will include conditions requiring changes to the design of some of the new apartments in 'Building A' to improve internal amenity. I find the approved amendments acceptable having regard to the strategic context that applies, the negligible impact of the modified built form on neighbourhood character, absence of unreasonable impacts on the amenity of neighbouring properties and satisfactory internal amenity of new dwellings. My reasons follow.

Do the strategic context and zoning support the proposed increase in density?

The Council and Ms Gray submit that the strategic context and zoning that apply to the land do not support the proposed increase in density.
Firstly, they note that under the Residential Framework Plan at Clause 21.02, the land is now within a small Neighbourhood Activity Centre [NAC] where 'Minimal Residential Growth Area' is envisaged. They submit that this is significant given that the 'Bayside Housing Strategy - 2012', now a reference document in the planning scheme, seeks an outcome for these areas where 'the predominantly low density residential scale is to be maintained' and 'medium and high density housing will not be supported...'.
Secondly, they note that the westernmost lot, comprising 34 Bodley Street, is now within the Neighbourhood Residential Zone. Whereas this part of the site was zoned Residential 1 at the time the permit was granted, they submit that the change to the Neighbourhood Residential Zone brings with it a greater obligation to protect neighbourhood character and to limit 'change' brought about by medium density housing.
Mr Biles acknowledges that since the grant of the permit, the zoning of the land has changed, as has the Residential Framework Plan as described by the Council and Ms Gray. However, Mr Biles expresses the view that the local policies are only part of the policy matrix to consider. He notes that state policies, at Clauses 11.01-1 and 16.01, support and encourage increases in the intensity of development in and around activity centres as well as on strategic redevelopment sites. In relation to local policy, Mr Biles notes that the land is largely within the Commercial 1 Zone. He says that given the zoning, the notion of 'minimal' cannot be interpreted the same as for land zoned residential when consideration is given to broader policy considerations which call for 'building up' activity centres[3]. It is in this context that Mr Biles concludes that the proposed increase in density remains consistent with the broad thrust of strategic planning policy.
In its grounds, the Council expresses concern about the use of an application under Section 87A of the Act as a mechanism to seek approval for a form of development that, firstly, would otherwise be prohibited on that part of the land in the Neighbourhood Residential Zone and, secondly, is contrary to local policy. The difficulty here for the Council's position on this issue is that the legislation provides discretion for the permit to be amended in these circumstances, even if such amendment involves a development outcome that is prohibited under the planning scheme as it now stands. As noted in the Council's submission, authority for this is set out in the Tribunal's decision in Callea Property Developments v Wyndham CC[4].
Further, in relation to an application under Section 87A, the 'ambit' of the changes that can be made to a permit 'may be quite substantial and may include changes to any of the things allowed by the permit, its description and the land description'[5]. Further, 'Amending the permit does not create an opportunity to recontest the permit in its entirety. Any interest by a person must relate to the nature of the changes'[6]. It is also open to me to approve some of the changes, but not all of them, depending on my assessment of the merits.
It is clear that the strategic context of the area within which the subject land lies has changed since the original grant of the permit and this is relevant to the decision in this case. In this regard, I note the views of the previously Tribunal when it said:

One submission made detailed reference to the Council's adopted Housing Strategy. We were advised that the Council has prepared Amendment C106 to the Planning Scheme to give effect to the recommendations of this Strategy. We were further advised that the Minister for Planning authorised the preparation of the Amendment subject to conditions, one of which is that it not be exhibited until the new residential zones have been gazetted into the Victoria Planning Provisions. The Strategy identifies the Keys Street shopping centre as a 'small neighbourhood activity centre' and designates it for minimal residential growth. This means that it is an area where the predominantly low density scale is to be maintained, and where medium and high density development will not be supported. While we are entitled to have regard to the Strategy as an adopted Council document[7] given the early stage of the Amendment process, we cannot give it equal or greater weight than what is found within the Planning Scheme

The situation has changed. Following amendments to the planning scheme[8], the Housing Strategy is now a reference document in the planning scheme and the Residential Framework Plan at Clause 21.02 has been modified to reflect the strategic directions set out in the study. Quite clearly, the notion of 'minimal residential growth' underpins the strategic directions set down for small NACs and adjacent residential areas. The zoning has also changed. The development allowed under the permit for 34 Bodley Street is now prohibited.
But, what does this mean in the case of an application for amendments to an existing permit? As noted by the Tribunal in Callea Development,

'...any changes to the planning controls subsequent to the grant of the permit may be relevant. In other words, do the changes to the permit make changes that would now be contrary to the changes in the planning scheme? If so, this may lend weight to rejecting those changes. On the other hand, if aspects of the existing permit or endorsed plans are already contrary to changes in the planning scheme and the changes to the permit do not alter this, there is less reason to reject those changes'.

In my view, the changes to the planning scheme over the westernmost lot comprising 34 Bodley Street are the most problematic in this case. Under the new zoning, a maximum of two dwellings could be constructed on that lot. The permit allows eight dwellings, four times that allowable under the current zoning. The proposal seeks to increase the density by three more dwellings. In general terms, this can be said to be in conflict with the purpose of the Neighbourhood Residential Zone which, in addition to implementing planning policy, specifically includes:

To limit opportunities for increased residential development.

It could be argued that density per se may not be a particularly useful indicator of whether a proposed change is acceptable. In this case, to facilitate the increase density, changes to the form of Building B are necessary. A larger building is proposed. Whereas the approved building is setback off the south boundary, the proposal involves increasing the length of the building to the south boundary. This results in the removal of the setback area. Ocean Beaumaris suggests that, if I find the extra building length to be problematic, that the southernmost apartment, No 6, could be reduced in size or deleted altogether, allowing two additional apartments rather than three within Building B. However, the changes to the built form go beyond increasing the length of the building. They also result in modifications which reduce the level of articulation presented to the western elevation in an unacceptable way, presenting a somewhat bland and continuous upper level façade to its residential neighbour. This is important as the western elevation presents to what is clearly, the most sensitive interface, toward the property at 32 Bodley Street. While landscaping proposed by Mr McFall along the west boundary is better than approved, I am unable to conclude that in overall terms, the changes proposed to Building C are appropriate.
The approved outcome for 'Building B' under the permit goes beyond what the current controls allow. In my view, the direction set by policy together with the new zoning do no support the changes proposed for Building 'B'. I will therefore refuse the changes to 'Building B'.
I hold a different view with respect to Buildings A and C. While still located within the 'Minimal Residential Growth Area', nonetheless, they are to be located within that part of the site zoned Commercial 1. The purpose of the zone includes to provide for residential uses at densities complementary to the role and scale of the commercial centre.
While an increase in density is also proposed, unlike the provisions for the Neighbourhood Residential Zone, there is no specific provision that limits density. The dwelling density that is now proposed still falls within the discretionary provisions of the zone. Further, it is relevant that a number of the new apartments are to be located within the roof space of the 'wing' to 'Building A'. While this requires the overall height of the building to be increased by about 480mm, the Council does not raise any concerns about the impact of the extra height in terms of the streetscape, wider neighbourhood character or the requirements of DDO1. In my view, the additional height is so small, that the difference between what has been approved and what is proposed will be imperceptible.
The provision of additional apartments within the proposed lower ground level of 'Building A' also results in increased density. But there is no substantive change to the presentation of the built form to the public realm. While there may be issues about the internal amenity of some of the proposed new apartments, I am unable to conclude that the increase in density per se, results in changes to the built form that has any substantive impact on the neighbourhood character.
In relation to 'Building C', the observation to be made here is that while it is proposed to incorporate five rather than four townhouses, the overall size of the building is reduced. Putting aside concerns raised by the council about the impact on the amenity of neighbouring properties, I am unable to conclude that the increase in density (one dwelling), results in an outcome that is at odds with the overall thrust of planning policy for land that is zoned commercial and within an activity centre.
It must be remembered that the starting point in this case is the approved development. What I am required to consider are the changes proposed in the application. For reasons set out earlier, I find the proposed increase in density associated with Building B unacceptable having regard to policy and the provisions of the Neighbourhood Residential Zone which specifically limit density. A similar limitation on density does not apply to that part of the land zoned Commercial 1. Rather, the purpose of the zone makes clear that residential uses should be at densities 'complementary to the role and scale of the commercial centre'. To some extent the approved development over the Commercial 1 land influences the role and scale of the centre. The density increase proposed in this application over the Commercial 1 land does not change this and is therefore acceptable.

Will the proposed changes have an adverse impact on the neighbourhood character and amenity of neighbouring properties?

It would be fair to say that the primary concerns about the impact on the neighbourhood character relate to the proposed changes to 'Building B'. However, for reasons set out earlier, I find that policy and the provisions of the Neighbourhood Residential Zone do not support the changes sought. Accordingly, the changes to 'Building B' are refused and it will remain as approved. Given this, there will be no change with respect to the impact on the neighbourhood character and amenity impacts associated with Building B.
In relation to Building A, I have already commented that the additional height and the provision of a lower ground floor to accommodate additional dwellings will not result in any marked change in terms of the presentation of the development to the surrounding neighbourhood. Nor does the Council assert that the changes to 'Building A' result in unreasonable amenity impacts on neighbours.
The remaining character and amenity concerns rest with 'Building C'. The changes to 'Building C' result in a changed outlook toward the rear laneway and the neighbouring properties to the south. The Council asserts that the length and height of the proposed wall along the laneway boundary fails to meet Standard B18 at Clause 55. Council says that the sheer height of this wall results in a dominant wall condition presenting unacceptable visual bulk to neighbouring properties to the south. It says that this outcome does not accord with the local neighbourhood character policy for the area which seeks appropriately articulated walls, avoidance of large bulky buildings and space between buildings for landscaping.
On reviewing the plans, I make the following observations.
It is clear that the length of 'Building C' has been reduced.
It is also clear that the separation between Buildings B and C remains as approved as does the separation between Buildings A (to the north) and B. There is no difference in the spacing and given my decision not to allow changes to Building B, opportunities for landscaping remain the same. However, a change is proposed with respect to the separation between the east end of Building C and Building A. The amount of separation increases to facilitate the provision of the proposed Lower Ground Level apartments in Building A. If anything the space between buildings and opportunity for landscaping remains as approved or better.
In relation to the presentation toward the laneway and neighbours to the south, I accept that the southern wall is less articulated and rises to a height of about 6.5 metres. However, I do not regard this as unacceptable having regard to the context.
Firstly, with the retention of Building B as approved, the length of wall on the laneway boundary decreases compared to the approved situation.
Secondly, although built to the boundary, the width of the laneway acts as a de facto setback to neighbouring properties. On application of Standard B17 at, a setback of just under 2 metres is required to the boundary with the neighbouring property to the south. The laneway is 3 metres wide thus providing for greater separation. This is clearly a relevant matter to consider as referenced in the decision guidelines at Clause 55.04-1.
Thirdly, the laneway context here is very much what I would describe as 'back of house'. The laneway serves a 'utilitarian' purpose, namely to provide access to the rear of the adjacent properties. By and large, the neighbouring properties to the south, which are mainly commercial in nature, treat the laneway as an accessway and do not seek to derive any direct amenity from it. On my inspection, I did not perceive it as a sensitive interface such as that presented by 34 Bodley Street. The presentation of a double storey wall to the laneway is acceptable in this context. This is particularly so given the relatively low level of sensitivity at this interface and the absence of problems such as unreasonable overshadowing, loss of daylight or overlooking of neighbours.
Fourthly, I do not see the absence of landscaping to the laneway to be unacceptable given the lack of landscape character to the laneway and its somewhat utilitarian function.
Subject to the retention of Building B as approved, I find that the proposed changes will be acceptable having regard to neighbourhood character and impacts on neighbouring properties.

Do the proposed new dwellings provide satisfactory amenity for future residents?

The Council raises concerns about the internal amenity or 'liveability' of the four apartments within the proposed Lower Ground Floor Level. The Council submits that the courtyard areas appurtenant to the proposed apartments will be subject to extensive overshadowing and thus providing future residents with poor amenity. It also expresses concerns about the provision of an internalised study, with no habitable room window, with respect to the proposed apartment LG.01 as well as the deletion of a lift.
In response to these concerns, Ocean Beaumaris submits a plan showing modifications to the internal layout of apartment LG.01 to remove the internal study. It also supports the inclusion of conditions of the amended permit requiring changes to balcony of apartment G.11 to provide improved daylight access to Apartment LG.01[9]. In relation to concerns about overshadowing of open space, Mr Biles' assessment is that compliance with Standard B29 is achieved and as such, satisfactory sunlight is available to the open space area.
It is often easy to assess matters of internal amenity on a piece by piece basis; however forgetting the 'big picture' in terms of the overall standard of amenity on offer. In this regard it is also relevant to take into account that the proposed apartments will provide a housing option for smaller households wishing to take advantage of the attributes of this area, specifically the proximity to the foreshore and the facilities within the local activity centre. The apartments are provided with secluded open space. The Council does not take issue with the size of the open space. Access to the opens space is from a living area. The open spaces receive access to some direct sunlight for at least part of the day. With the changes put forward by Ocean Beaumaris, the internalised study in apartment LG.01 is removed and better access to sunlight is provided through the changes to the balcony to apartment G.11. These changes can be implemented by permit conditions.
I accept that the level of amenity offered by the lower ground level apartments will not be as good as other apartments within the complex. However, within a large complex, it is not unusual for some apartments/dwellings to have better amenity than others. The important thing there is that while the lower ground level apartments may offer lesser amenity than others, subject to the changes put forward by the applicant, they provide an acceptable bottom line amenity.
The Council asserts that the removal of one lift will reduce the level of amenity. It is unclear to me as to why this would be so as the Council did not present any evidence or other material to back up this assertion. Certainly, there was nothing presented to show that the deletion of the lift is contrary to a particular standard or that there had been a proper 'lift' study analysis undertaken to justify the Council's conclusion.
Subject to the changes discussed above, I find the internal amenity to be acceptable.

For the reasons set out above I will approve some, but not all the amendments sought by Ocean Beaumaris in its application. Specifically I will not allow the amendments to Building B. However, I will allow the amendments to Buildings A and C, however, this is subject to some further changes that can be implemented by permit conditions. I will therefore allow the application.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Oceans Beaumaris Pty Ltd v Bayside CC (Correction) [2013] VCAT 1422

[5] See Bestway Group Pty Ltd v Monash CC [2008] VCAT 860

[6] Becton Living v Stonnington CC [2008] VCAT 1195

[9] Refer to Figure 12 of Mr Biles expert report.

Environment Act 1987

Ocean Beaumaris P L v Bayside CC [2014] VCAT 1606 (22 December 2014)

Ocean Beaumaris P L v Bayside CC [2014] VCAT 1606

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Ocean Beaumaris P L v Bayside CC [2014] VCAT 1606 (22 December 2014)