Victorian Civil and Administrative Tribunal|2013-09-27

Oceans Beaumaris Pty Ltd v Bayside CC (Correction) [2013] VCAT 1422 (27 September 2013)

J Hurley, D Wilson, N Walsh, R & L MacRedmond, J & C Kernot, V Currey, Beaumaris Conservation Society Inc., L Scott, V Gray, G Crocker, M & D Finnis

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

annotations identifying any specific construction methods required by the approved Tree Management Plan to minimise the impact of the development on the trees proposed to be retained along the western boundary, including those on the adjoining land at 32 Bodley Street (refer to Conditions 15, 16 and 17 of this Permit)

a landscape plan generally in accordance with the landscape plan submitted to Council on 18 December 2012 (refer to Condition No. 12 of this Permit)

any modifications required by the approved Waste Management Plan (refer to Condition 30 of this Permit)

Water Sensitive Urban Design measures in accordance with Condition 31 of this Permit

By order dated 12 August 2013 the Tribunal ordered the grant of a permit for the redevelopment of the review site.
By letter dated 18 September 2013, representatives of the Applicant drew the Tribunal's attention to clerical errors within the Tribunal's order, and submitted that the Order should be corrected.
Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:

a clerical mistake; 2. an error arising from an accidental slip or omission;

a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

a defect of form.
I am satisfied that a mistake or error has occurred here and find it appropriate to authorise a correction of the order.

Section 77 of the Planning & Environment Act 1987; Bayside Planning Scheme; Commercial 1 Zone; Residential 1 Zone; Heritage Overlay; Design and Development Overlay; Mixed-use development; Policy; Height, Heritage; Neighbourhood Character; Amenity; Car Parking.

J Hurley, D Wilson, N Walsh, R & L MacRedmond, J & C Kernot, V Currey, Beaumaris Conservation Society Inc., L Scott, V Gray, G Crocker, M & D Finnis

Oceans Beaumaris Pty Ltd v Bayside CC & Ors [2013] VCAT 1422

The decision of the Responsible Authority in relation to permit application no. 2012/483/1 is set aside.
A permit is granted in relation to land at 472 Beach Road and 34 Bodley Street, Beaumaris. The permit will allow
- 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 permit is subject to the conditions contained in the Appendix to these reasons.

Mr I Pitt SC of Best Hooper. Evidence was called from:

Mr R Riddett, architectural historian and heritage consultant of Anthemion Consultancies.
Mr S Hunt, Traffic Engineer of Cardno.
Mr T Biles, Town Planner of Message Consultants Australia Pty Ltd.

Partial demolition; the construction of buildings and the construction and carrying out of works (including the reconstruction of Beaumaris Hotel/former Great Southern Hotel building; the construction of multi-level additions; four attached dwellings; and a two-storey apartment-style building) to accommodate dwellings, shops, restaurant and associated car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedule 1, Building Height Control-Coastal.

Heritage Overlay - Schedule 66, 472 Beach Road, Beaumaris - Former Great Southern Hotel.

Vegetation Protection Overlay - Schedule 3, Beaumaris and Black Rock Native Vegetation Areas.

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).

Cl. 10, 11.01, 11.04, 15, 15.01, 15.03, 16.01, 17.01, 18.02, 21, 22.05, 22.07, 32.01, 34.01, 43.01, 43.02, 52.06, 52.07, 52.27, 55 and 65.

The review site is comprised of two lots. The larger of these is within the Commercial 1 Zone and is occupied by the Beaumaris Hotel (former Great Southern Hotel) and part of its associated car park. The remaining lot, at 34 Bodley Street, is within the 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.

An accompanied site inspection was undertaken on the first hearing day.

The Bayside City Council has determined to refuse a permit for the redevelopment of the Beaumaris Hotel site. Its grounds for doing so refer to matters of built form, site coverage, landscaping, amenity impacts, storage, neighbourhood character and car parking. This decision was made contrary to the recommendation the Council's officers, who had supported the proposal subject to a number of conditions. Residents oppose the grant of a permit on grounds similar to those of the Council.
This is an Application to the Tribunal for a review of the Council's decision.
The key issues for determination may be summarised as:
- Is the proposal consistent with the relevant planning policies of the Bayside Planning Scheme?
- Does the built form respond acceptably to the strategic and physical context of the site?
- Will the development have an unacceptable impact on the amenity of neighbouring residential properties?
- Is adequate car parking provided?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, assisted by our inspection, we have decided to set aside the Council's decision and grant a permit. Our reasons follow.

Is the proposal consistent with the relevant planning policies of the Bayside Planning Scheme?

It is common ground that the review site is within a Neighbourhood Activity Centre[2], as identified in the Strategic Land Use Framework Plan found at Clause 21.02-5. The Planning Scheme's strategic directions for settlement and housing are detailed within both the State and Local Planning Policy Frameworks. In general terms, State policy at Clause 11.04 has the objective of building up activity centres as a focus for high quality development, activity and living for the whole community by developing a network of activity centres. A related strategy is to support the role and function of a centre given its classification, the policies for housing intensification and the development of the public transport network. Policies for the Activity Centre Hierarchy are provided at Clause 11.04-2. A relevant strategy in this instance is to encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.
State housing policy is detailed at Clause 16. The objective of Clause 16.01-2 is to locate new housing in or close to activity centres and employment corridors and at other strategic redevelopment sites that offer good access to services and transport. The related strategies are:

In and around Central Activities Districts.
In or within easy walking distance of Principal or Major Activity Centres.
In or beside Neighbourhood Activity Centres that are served by public transport.
On or abutting tram, train, light rail and bus routes that are part of the Principal Public Transport Network and close to employment corridors, Central Activities Districts, Principal or Major Activity Centres.
In or near major modal public transport interchanges that are not in Principal or Major Activity Centres.
Able to provide 10 or more dwelling units, close to activity centres and well served by public transport.

At the local level, the Municipal Strategic Statement (MSS) notes that the development of Bayside has historically centred around defined 'villages' or activity centres, which are a focus for retail, entertainment and employment and are accessible by public transport[3]. Reference to the role that Activity Centres are intended to fulfil in respect of the municipality's housing policies is made at Clause 21.03. Here, identified key issues include the increasingly important role that these centres will play in providing for future housing needs, and enabling increased diversity and density of dwellings in the centres. A further key issue is the opportunity for medium density housing provided by redevelopment potential in and around activity centres.
A strategy related to the objective of accommodating population increases and responding to changing demographics is to direct new medium density housing to Major Activity Centres and residential opportunity areas, particularly those with good access to public transport routes. Activity Centres are specifically addressed at Clause 21.03-1. In addition to the Major Activity Centres, the MSS identifies four 'large Neighbourhood Activity Centres', these being Martin Street Gardenvale, Highett (part), Beaumaris Concourse and Black Rock. These latter centres are also noted as providing a focus for future housing development. Objectives are to direct new medium density housing to the Major Activity Centres and the large Neighbourhood Activity Centres, and to deliver increased housing densities and diversity of dwellings within activity centres.
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[4], 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 Council and the residents submitted, in essence, that the scale of the proposed development is too great for this small neighbourhood centre. It was argued that the Planning Scheme's policies are clear in directing medium density housing to the Major Activity Centres and the four large Neighbourhood Activity Centres. The submissions were not that increased residential densities should not be contemplated, or encouraged, within this centre, but rather should be tempered to respond to its lower-order nature. Reference was made to the absence of convenience shopping, a relatively large number of service businesses (several of which operate on a 'by appointment' basis or part-time hours) and the limited availability of public transport. In terms of the latter, we were advised that the nearest railway stations are in excess of one kilometre distant from the centre, and the only public transport is in the form of two bus routes which operate between the Southland Shopping Centre and the St Kilda light rail station.
It is our view that the proposal responds acceptably to State policy for development within Neighbourhood Activity Centres. It will provide for an increased density and diversity of housing in this location. While we acknowledge that there are, indeed, a limited range of services offered within this centre and that apart from a milk bar there is an absence of convenience shopping, the Council has at a point in time determined to strategically identify it as a Neighbourhood Activity Centre. With that designation comes the expectation that land within the centre may be redeveloped for medium density housing, although such development is required to be responsive to its context. It is conceivable that this development, and further residential development in and around the centre, may well act as a catalyst for the revitalisation of the commercial precinct by augmenting its customer base.
We also acknowledge that, according to Clause 11.04-2, it is policy that development is designed to fit the context and enhance the character of the area. The development's presentation to both the immediate and wider context, including both the public and private realm, is an important policy consideration. We address this issue in the following sections of these reasons. Suffice to say that we are persuaded that an acceptable level of compliance with this policy is achieved.
When assessed against the policy criteria provided at Clause 16.01-2, our conclusion is that the site can be properly categorised as a strategic redevelopment site. Specifically, it is within a Neighbourhood Activity Centre served by public transport, and it is able to accommodate 10 or more dwellings. It is the largest site within this locality and readily lends itself to the proposed form of redevelopment to contribute to the broader strategic objective of consolidating the urban form of the established metropolitan area and making better use of established infrastructure.
It was not suggested that the site is rendered unsuitable for higher density housing because it is not located in one of the locations specifically identified in the MSS. Objector's concerns were that the proposal displays insufficient regard to the planning policy objectives that apply to the site itself. By and large, these relate to the size of the proposed built form. We now turn to consider the extent to which the proposed development responds acceptably to its context.

Does the built form respond acceptably to the strategic and physical context of the site?

Would the proposal be acceptable in terms of its effect on the heritage values of the historic Great Southern Hotel?

The proposal includes the restoration and reconstruction of the historic former Great Southern Hotel, a building of local historic significance that is protected by the Heritage Overlay (HO66 and graded B in the relevant heritage study). This building's restoration and reconstruction is to be undertaken in accordance with Australia ICOMOS Burra Charter principles. None of the parties raised any objections to, or concerns about, either this aspect of the proposed development, or about whether the new structures - the two new wings that are to be attached to the historic building, together with the two other separate groups of dwellings - would cause any detriment to the heritage values of the historic building.
Ms. Riddett expressed the opinion that "there is a high degree of compliance with all of the relevant heritage policies and there should be no heritage reason which would preclude support for this project".
One set of issues that we have to balance is that of designing any extension to the historic hotel so that it both respects the hotel's heritage values and the desired neighbourhood character. We consider this below.

Is the proposal respectful of its locality's neighbourhood character?

The Council and residents expressed a number of concerns about what they consider to be the proposal's lack of respect for the desired future neighbourhood character, taking account of its physical context and relevant policies. Specifically:
- The Bodley Street wing to the reconstructed hotel building (referred to as 'Building A'), with its attic roof, is excessively high (it would read as a three-storey building) and long and lacking adequate articulation and so would dominate a streetscape characterised by much more modest buildings
- The Beach Road wing, with its commercial frontage abutting the road, is uncharacteristic and incongruous in style
- The western end of the Bodley Street wing to Building A would dominate views from further west
- The 1.8-metre high front fence to No. 34 is unreasonably high.
The important features of the proposed development are the following elements:
- The restoration and reconstruction of the historic hotel itself will involve replacing the original Mansard-type roof, together with two towers to either side of the historic façade, and the reconstruction of the two-storey Bodley Street verandah, with the towers having a height of about 14.8 metres and the Mansard roof a height of 13.6 metres
- The wall height of the Bodley Street elevation will be about 9 metres or less (the variation being due to variations in the street level) and the height to the top of its Mansard roof will be about 13 metres
- The Bodley Street wing and Mansard roof will be finished in a plain zinc sheeting, with plain-detailed openings in the wall and pitched roof to provide light to balconies and windows beyond; there will be no ornamentation or articulation of the wing's wall or roof surfaces (the Beach Road wing will be generally similar to the Bodley Street wing in terms of design, height and finishes)
- The pitch on the wings' Mansard roofs is markedly less than that of the historic hotel's Mansard roof.
The Beach Road frontage, south of Bodley Street and beyond the subject site, consists of five typical, two-storey interwar commercial premises built to the street. Further south (and past Keys Street), is a recently constructed apartment complex built close to the Beach Road frontage. Bodley Street, northern side and within the commercial zone, consists largely of an agglomeration of two-storey buildings (including a low-pitched attic roof) of entirely unrelated character and width. The southern portion of the subject site's frontage (i.e. beyond the historic structure) is a large, shed-like building set back a short distance from the street and with extensive glazing to its façade, its effect being entirely unlike any other structure along this frontage.
Keys Street itself, within the Commercial 1 Zone, also consists of typical two-storey (south side) or single-storey (north side), flat-roofed commercial buildings built to the street frontage, with many of these being of relatively modern style.
The residential area beyond the limits of the business centre is characterised by moderate-to-large detached single-dwellings of one or two-storey scale set in typically-sized and reasonably well-landscaped suburban gardens. The area has clearly been undergoing a process of regeneration with older detached houses being replaced by larger, modern-styled houses.
The purpose of the Commercial 1 Zone in addition to the implementation of the State and Local Policies, includes:
- To provide for residential uses at densities complementary to the role and scale of the commercial centre.
Guidance in respect of envisaged built form outcomes is found in Design and Development Overlay (DDO1,) which extends for some considerable distance inland from the coastline, and includes the following design objectives:
- To protect and enhance the foreshore environment and views of Bayside from Port Phillip Bay.
- To relate the scale and form of any new development to the landform of the coast.
- To maintain a pedestrian scale along Beach Road.
- To maintain consistency with urban design and development objectives in the Bayside Coastal Strategy 1997 and the Victorian Coastal Strategy 2002.
- To protect the foreshore from overshadowing.
- To manage the increased pressure for higher buildings along the coast.
- To protect the amenity and privacy of residential properties.
Also, while the Council accepted that the second floor level within the roof space satisfied the mandatory requirements for an "attic", its submission focussed on whether this level satisfied the indicative tests of an attic:
- A space which is wholly contained / enclosed within a roof space.
- A space which is not bordered by any vertical external walls except gable walls.
- A space which is relatively small in scale in relation to the scale of the remaining built form.
- The presence of dormer style windows or skylights.
- Does not contribute significantly to the building form.
- A space or series of spaces which in total occupy and area no greater than half the floor area of the storey below.
The Council submitted, in particular, that the scale of the attic level contributed materially to the overall scale of the building.
The only Design Objectives of DDO1 on which Council and the objectors specifically relied were the third, sixth and last and, of these, only the third ("pedestrian scale") appears to us have any relevance.
The proposed southern wing, the only new structure that could be readily seen from the waters of Port Phillip Bay[5], is of a scale that would not offend views from that position, particularly given the site's location behind a main road and above an escarpment. The landform, being an escarpment, can, in any case, tolerate a taller building. No-one made any reference to other coastal strategies or to the possible overshadowing of the foreshore. "Managing increased pressure for higher buildings ..." is not itself a meaningful design objective. Finally, the last point, insofar as it must relate to dwellings in the Residential 1 zone, merely replicates the requirements of Clause 55. In fact, and on reflection, we have some difficulty understanding why Council has defined DDO1 to include such an extensive depth of land as it is not at all clear what this great depth would achieve in relation to managing coastal development, as compared to a more limited depth.
In considering whether the proposal would maintain the pedestrian scale of Beach Road, we need to consider what the term "pedestrian scale" means. This term has a wide range of interpretations. It seems to us reasonable to conclude that any definition of pedestrian scale should remain reasonably constant, yet its use can refer to buildings from two storeys with pitched roof of modest height, as in this locality, to three storey podiums[6] or even higher.
We do not find the use of this test of "pedestrian scale" particularly helpful. In any case, from any point on the nearer footpath in Bodley Street, the roof's pitch would render it invisible and, as a pedestrian crosses the road, the roof would become increasingly apparent. From the far side of the opposite footpath, the roof's visible height would appear equivalent to that of a 2.0 metre high band on top of the 8.3 metre high elevation, an increase of less than 25%. We consider that this proportional increase in height would not be overbearing within this streetscape. The same point applies with respect to the Beach Road streetscape. While a little more of the roof would be visible from the nearer footpath, its scale would not amount to much, and there is no reasonable view from across Beach Road because there is no effective footpath on the other side.
Although the attic level would become more visible as an observer moves further away from the building, (e.g. along Bodley Street or Beach Road), the significance of the attic, together with the whole building, will decrease as a component of the wider townscape. Because of the pitch of the attic roof, in our opinion, it will still remain subservient to the larger whole.
For the above reasons, we also find that the height of the attic level is "relatively small in scale in relation to the scale of the remaining built form".
In terms of the Design Objectives of DDO1, we conclude that the attic level's contribution to the proposal's height is acceptable.
The Bodley Street wing would have a length of about 34 metres, as compared to the 28 metres of the historic hotel's sideage. The wing is to be set back almost 5 metres from Bodley Street, as compared to the 2.3 metre setback for the face of the hotel's side-verandah. The whole elevation will form a simplified streetscape. However, we accept that this outcome is intended to strike a balance between a commercial-related character, on the one hand, and the simplified form necessary to provide a foil to the complexity of the heritage hotel. We consider that the proposal strikes an acceptable balance.
The historic hotel was originally conceived to be a visually dominating building. There have been instances where such flamboyant Victorian buildings have been visually overwhelmed by larger or visually strident modern extensions. Greater articulation of the wing, as some objectors have sought, would visually compete with, and thereby diminish, the dominance of the hotel which the hotel's reconstruction is intended to recreate. In this case, we consider that the wing's overtly neutral architectural style is appropriate.
We have also had regard to the relevant purpose of the Commercial 1 Zone, i.e. "To provide for residential uses at densities complementary to the role and scale of the commercial centre". We consider that the proposed residential uses are to be provided at a density that is complementary to the role and scale of this centre. This is a modest centre of two-storey scale and, with its pitched roof, the proposal does not conflict with this general scale. Nor do we consider that the number of proposed dwellings would overwhelm or conflict with this centre's role but is likely to modestly enhance it.
With respect to Building B (No. 34 Bodley Street), the issues of neighbourhood character that Council raised relate to its high front fence. From our site inspection, it is clear that the majority of dwellings in the Residential 1 zone and along Bodley Street have high fences. For whatever the reason, this is the current character of this section of Residential 1 zone. We find no reason to require the front fence of No. 34 to be any different.

Will the development have an unacceptable impact on the amenity of neighbouring residential properties?

The one property that will be directly affected by the proposed development is that adjoining to the west, at 32 Bodley Street. In an attempt to provide a transitional scale to this interface, and to manage amenity impacts, the Applicant has positioned a two-storey building accommodating 8 dwellings ('Building B') on this part of the site. Overall, we consider this approach is successful, subject to some modification to the proposed setbacks from the common boundary with this neighbouring site.
Building B is on that part of the land known as 34 Bodley Street. It is entirely within the Residential 1 Zone and the requirements of Clause 55 apply.
The Schedule to the Residential 1 Zone in the Bayside Planning Scheme varies Standard B17 to increase the applicable side and rear setbacks. The proposed siting of Building B meets the conventional Standard B17, but does not meet the varied Standard for a portion of the building toward the rear of the site. In addressing the impacts arising from this siting, the Council officers recommended the partial deletion of a ground level deck and provision of additional planting in this location. The Applicant's evidence is that the articulation of the building and its maximum 6.7 metre height are sufficient to manage visual bulk impacts.
The rear yard of 32 Bodley Street is a sensitive space. Notwithstanding the screening effect of the large deciduous tree on this land, the development will have an obvious visual impact on the amenity of this area. This is not only due to its two-storey scale and proximity to the common boundary, but also because it extends down the length of the site, to within some 3.4 metres of the rear boundary. The review site is a large consolidated land holding. It is well proportioned, free of any significant slope or other topographical constraint, and the retained built form is sited adjacent to Beach Road, well away from this part of the residential neighbourhood. It has only one sensitive interface to respond to. We see no reason why compliance with the varied Standard B17 should not be achieved. Such compliance would have the benefit of positioning Building B further from the boundary, thereby providing some relief from its visual mass, and enhancing opportunities for meaningful landscaping in this part of the site. We will therefore include a condition requiring the setbacks from the western boundary to comply with Standard B17, as varied by the Schedule to the Residential 1 Zone.
Concerns were expressed regarding the potential for overlooking of 32 Bodley Street from the first floor of Building B. At the hearing, it was clarified that there will not be any balconies facing this property. All the balconies are east-facing, with an outlook to the central section of the review site. There will, however, be first floor habitable room windows in the building's west elevation. These windows are associated with living areas. Treatments in the form of high-sill (1.7 metre) windows and external screens, also to 1.7 metres, are proposed to address overlooking. Subject to ensuring that the screens comply with Standard B22 at Clause 55.04-6 with respect to their form and permeability, this treatment is acceptable.
It was submitted that some of the commercial properties fronting Keys Road also support an associated dwelling, with the rear yard area serving as secluded private open space. First floor windows and balconies of the proposed attached 'townhouses' (referred as 'Building C') overlook these spaces. A condition of permit can require that, where necessary, these elements be screened in accordance with Standard B22.
Overshadowing was only raised as an issue in respect of a dwelling to the south, which is situated to the rear of a commercial premises and whose occupants allegedly use the rear of that property as secluded private open space. The owner of that property is not a party to this proceeding. At the commencement of the hearing, the Applicant provided a letter from this owner confirming that he does not oppose the proposal. The property itself is a two-storey, modest commercial building with a large rear garden, well vegetated, with access from a rear Right-of-Way.
We consider that, given the adjoining property's Commercial 1 zoning and its potential for redevelopment, the overshadowing of the rear area of secluded private open space is acceptable.
A further amenity impact referred to in submissions was that of noise. We accept the Applicant's submissions that the existing acoustic fence on the common boundary with 32 Bodley Street will have the effect of mitigating any noise; and that noise from residential land use is equally possible from a single detached dwelling, as it is from medium density housing. It is part of living in an urban environment. If that noise amounts to a nuisance, then there are laws to deal with this[7].

It is proposed to provide a total of 93 car spaces within the basement car park. Of these, 83 are to be allocated to residents; 6 to visitors; 2 for staff of the restaurant; and 1 each of the two retail tenancies. This meets the requirements of Clause 52.06-5 with respect to parking for the residents of the dwellings, but means that there will be a shortfall for residential visitors, and for each of the commercial tenancies. Specifically, the proposed shortfall is as follows:
- Residential visitors: 5 spaces
- Shops: 5 spaces
- Restaurant: 18 spaces
The Council and the residents oppose the reduction of the car parking provision, submitting that it will increase the demand for on-street car parking within the neighbouring residential areas. One submission included detailed surveys which had been undertaken during times when the existing restaurants in the activity centre were operating. The survey data was that, on the occasions when the existing restaurants and the hotel were trading, up to 70 cars were parked in the residential streets. The analysis provided in that submission concluded that there would be a demand for between 26 and 34[8] on-street car spaces as a consequence of the proposal. The residents' submission noted their agreement and belief that patrons would not use the basement car parking, even if it were provided. It was suggested that the car parking concerns could be addressed by deleting the commercial component and making the development entirely residential. The Applicant did not oppose a requirement that the commercial component of the development be deleted[9].
The Applicant's evidence is that, based on empirical data derived from surveys in other locations, the actual demand will be for 6 visitor spaces; 6 retail spaces; and between 12 spaces (weekday) and 16 spaces (Friday/ Saturday evening) for the restaurant. Based on this, the parking shortfall needing to be accommodated in the surrounding publicly available spaces is between 14 and 18 spaces - all of which are short term. The evidence is that this demand can be accommodated within that part of the surrounding street network that is within the Commercial 1 Zone, in particular for the spaces in Beach Road and Bodley Street.
As confirmed by the officer's report, Council's Traffic Engineer supports the proposed reduction of the car parking requirement (which was calculated as 28 spaces). This support is conditional upon the restriction of the restaurant's capacity to 50 seats, and the inclusion of a permit condition requiring the preparation of a traffic and car parking management plan. The officer's report states that there are 78 spaces within commercially-zoned area: 26 on-street spaces in Keys Road, 35 spaces in the Council-owned car park in Keys Road, and 17 on-street spaces on Beach Road and along the site's frontage. According to the officer's report, the Traffic Engineer is of the view that the 78 car spaces outside of the residential areas can accommodate the proposal's parking shortfall.
The survey evidence included within the witness statement confirms that there are sufficient spaces within the area to accommodate the demand generated by the proposal during the peak restaurant occupancy times of Friday and Saturday evenings. That being so, we do not see that there is a basis to refuse a permit or require modifications on car parking grounds. This is particularly given the activity centre context of the review site, where parking within the surrounding street network is to be anticipated as a function or consequence of the composite land uses, many of which are unable to accommodate their parking demands on their respective sites.

We have set out our findings in what we consider to be the key issues in this Application. There were several other matters raised in the submissions which will address briefly:
- There is sufficient opportunity provided to incorporate planting throughout the development to respond to the objectives of the Vegetation Protection Overlay. This includes trees along both the Beach Road and Bodley Street frontages of the land. According to the Council's submission, this includes approximately 92% native species, of which 58% are indigenous.
- The waiver of the loading bay requirement is justified. We accept the Applicant's evidence that deliveries to small retail and restaurant premises such as is proposed here is likely to be undertaken by small rigid trucks that will be able to park kerbside on Beach Road.
- We have not been persuaded that storage areas of less than the 6 cubic metres specified in Clause 55.05-6 (Standard B30). While there are a range of storage options provided, we note that some of the smaller facilities are proposed adjoining the tandem car spaces which are to be allocated to the larger dwellings. It seems to us that larger storage facilities would be appropriate for these dwellings. On this point, we would observe that smaller dwellings may, arguably, similarly have need for greater storage capacity than the 3 cubic metres proposed as a consequence of the more limited space within the dwellings themselves. On balance, having regard to the size and configuration of the dwellings, we have concluded that a minimum 6 cubic metre storage area should be provided for each.

Toward the conclusion of the hearing, there was a detailed discussion of the draft conditions provided by the Council in accordance with the Tribunal's Practice Note PNPE1. The conditions within the Appendix have been formulated bearing in mind the submissions of the parties. In respect of specific issues raised which we have not addressed in the conditions, we make the following comments:
- The collection of waste and recyclables from the site will be the subject of a Waste Management Plan, which will need to be to the Council's satisfaction. Amongst the matters to be addressed in the Waste Management Plan is the means of collection. We note the residents' request than all collection occur within the basement, but have not been provided with any compelling reason why this collection should not (or could not) occur on-street. In any event, we have left this matter as one which will need to be to the Council's satisfaction.
- Conditions will require that the reconstruction of the historic building occur under the supervision of suitably qualified persons in order to ensure that the desired heritage outcome is achieved. The remainder of the development is of relatively simple design and we have not been persuaded that a condition requiring the on-going supervision of the design architect should be mandated in this instance. The development does not display a complexity which would warrant such a requirement.

For these reasons, we have determined that the proposal achieves an acceptable level of compliance with the policies and provisions of the Bayside Planning Scheme. Accordingly, we will set aside the Council's decision and grant a permit, subject to the conditions detailed in the Appendix.

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.

Before the use and/or development (including demolition) 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 and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans identified as TP-03 Basement Plan - Demolition (Cellar); TP-04 Ground Floor Plan - Demolition; TP-05 First Floor Plan - Demolition; TP-06 Existing Conditions - Demolition: TP-07 Basement Plan - Proposed; TP-08 Ground Floor Plan - Proposed; TP0-09 First Floor Plan - Proposed; TP-10 Attic Level Plan - Proposed; TP-10A Roof Plan - Proposed; TP-11 Proposed Elevations (North Elevation - Bodley Street & East Elevation - Beach Road); TP-12 Proposed Elevations (West Elevation - Building A and Townhouses Through Carpark Driveway & West Elevation - Building A)); TP-13 Proposed Elevations (South Elevation - Townhouses & South Elevation - Building A Through Common Walkway); TP-14 Elevations (East Elevation - Townhouses & West Elevation - Building B); TP-16 Proposed Sections (Section A-A & Section B-B); TP-17 Proposed Sections (Section C-C & Section D-D); TP-18 Proposed Sections (Section E-E & Section F-F); TP-19 Proposed Sections (Section G-G); TP-20 Privacy Screen Details; TP-21 Privacy Screen Details, all Rev 3, dated 04.03.13, prepared by TEN23 Architects but modified to show:

the building at 34 Bodley Street ('Building B') set back from the western boundary in accordance with Standard B17 at Clause 55.04-1 of the Bayside Planning Scheme (as varied by the Schedule to Clause 32.01). 2. deletion of the deck adjacent to the western side of APT B G.04 to allow for additional planting along the western property boundary, adjacent to the residential interface

the basement is to be re-designed to allow for:

(i) the provision of 6 cubic metres of storage space for each dwelling

(ii) each tandem space must be 4.9 metres in length, with a further 0.5 metre length provided between each space, to achieve a length of 10.3 metres

the study within all 2 bedroom dwellings modified such that it is not contained within a room
provision of screening to all windows and balconies/terraces which allow views of existing habitable room windows and/or existing secluded private open space within 9.0 metres in accordance with Clause 55.04-6 (Standard B22) of the Bayside Planning Scheme)
the replacement of the first floor high-sill north-facing windows of Dwellings TH1, TH2, TH3 and TH4 with lower sill windows and the provision of screening to the south-facing balconies/terraces of Dwellings APT A1.08, APT A1.09, APT A1.10 and APT A1.11 as required to prevent direct overlooking of windows to the south. The screening must be in accordance with Clause 55.04-6 (Standard B22) of the Bayside Planning Scheme
a schedule of construction materials, external finishes and colours (incorporating two (2) paint samples)
a red line plan showing the area with which alcohol will be sold and consumed within the restaurant site
annotations identifying trees 3, 4, 5 and 6 (as identified in the letter from Galbraith & Associates dated 16/April/12)
annotations identifying any specific construction methods required by the approved Tree Management Plan to minimise the impact of the development on the trees proposed to be retained along the western boundary, including those on the adjoining land at 32 Bodley Street (refer to Conditions 14, 15 and 16 of this Permit)
a landscape plan generally in accordance with the landscape plan submitted to Council on 18 December 2012 (refer to Condition No. 11 of this Permit)

any modifications required by the approved Waste Management Plan (refer to Condition 29 of this Permit)

Water Sensitive Urban Design measures in accordance with Condition 30 of this Permit
bicycle parking spaces within the front setback of the restaurant.

Before the use and/or occupation of the site starts, or by such later date as is approved in writing by the Responsible Authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the Responsible Authority
The use and/or development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority, unless the changes are exempt under the Bayside Planning Scheme.
The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

transport of materials, goods or commodities to or from the land 2. appearance of any building, works or materials

emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil

Except with the written consent of the Responsible Authority, the number of patrons on the restaurant premises at any one time must not exceed 50.
Except with the prior written consent of the Responsible Authority, the sale of liquor must only occur between the hours of 7.00am-11.00pm Monday to Sunday and 12 noon to 11.00pm ANZAC Day and Good Friday.
Except with the written consent of the Responsible Authority:

a minimum of one (1) car space must be allocated to each dwelling 2. one (1) car space must be allocated to each shop

two (2) car spaces must be allocated to the restaurant.
Before the development is occupied and/or the use starts, three (3) copies of a Traffic and Parking Management Plan, to the satisfaction of the Responsible Authority, must be submitted to, and approved by, the Responsible Authority. When approved, the Traffic and Parking Management Plan will be endorsed and will then form part of the permit. The Traffic and Parking Management Plan must include, but is not limited to:

the location of all areas on-and/or off-site to be used for staff and residential parking 2. specification of staff numbers adequate to enable efficient operation of car parking areas both on- and off-site

the means by which the direction of traffic and pedestrian flows to and from car parking areas will be controlled on the land

servicing of the drainage and maintenance of car parking areas.

Traffic and parking operations on and adjacent to the site must be in accordance with the approved Traffic and Parking Management Plan to the satisfaction of the Responsible Authority.

Before the development starts, a Construction Management Plan must be submitted to and approved by the Responsible Authority. The Construction Management Plan must address, but is not limited to:

hours of construction, control of noise and airborne matter, deliveries, vehicle access, worker car parking, damage to public assets, and contact numbers for complaints 2. provision of a truck wheel-wash so that vehicles leaving the site do not deposit mud or other materials on roadways

the covering and maintenance of all roads/storage areas/external stockpiles/or vacant areas to avoid dust nuisance to any residential and commercial premises

the prohibition of delivery/tradesmen's vehicles from obstructing Beach Road and Bodley Street and using the laneway to the south west of the site during the construction period 2. a Traffic Management Plan for construction vehicles for the construction period addressing truck access to and from the site, truck numbers and times trucks travelling to and from site, queuing/ sequencing and excavation 3. a Parking Management Plan for all associated construction/trade vehicles 4. provision of a truck wheel-wash which must be used so vehicles leaving the site do not deposit mud or other materials on roadways, to the satisfaction of the Responsible Authority 5. measures to ensure that no water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site 6. the storage of wastes in designated areas or covered containers that prevent escape into the stormwater system 7. measures to ensure that no mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system 8. means by which the site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, or gross pollutants in accordance with currently accepted best practice, consistent with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO, 1999

processes for the identification and management of any contaminated soil in accordance with State Environment Protection Policy (Protection and Management of Contaminated Land) and relevant Environment Protection Authority guidelines/regulations, as necessary.

The development must be undertaken in accordance with the approved Construction Management Plan, to the satisfaction of the Responsible Authority.

Noise levels emanating from the restaurant and shop premises must not exceed those required to be met under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1.
Vehicular crossing/s must be constructed to the road to suit the proposed driveway/s to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
Before the development (including demolition) starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:

the use of native vegetation, as shown on the landscape plan submitted to Council on 18 December 2012 2. a survey (including botanical names) of all existing vegetation to be retained and/or removed

trees (including botanical names) on neighbouring properties within three (3) metres of the boundary

details of surface finishes of pathways and driveways 2. a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

All species selected must be to the satisfaction of the Responsible Authority.

Before the development is occupied, or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.
Before the development (including demolition) starts, a Tree Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Tree Management Plan must be prepared by a suitably qualified person and must be to the satisfaction of the Responsible Authority. The Tree Management Plan must address any potential impact of the development on the roots of trees proposed to be retained along the western property boundary (including those on the adjoining land at 32 Bodley Street), including details of appropriate construction methods to minimise any such potential impact.
Before the development (including demolition) starts, a tree protection fence must be erected around Trees 3, 4, 5 and 6 (as identified in the letter from Galbraith & Associates dated 16/April/12) at a radius of 3 metres from the base of the trunk to define a Tree Protection Zone. The fence must be constructed of star pickets and chain mesh or similar to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until construction is completed, unless otherwise agreed and approved by the Responsible Authority.

The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority.

No vehicular or pedestrian access, trenching or soil excavation must occur within the Tree Protection Zone without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste must occur within the Tree Protection Zone.

Within 3.0 metres of the tree protection fence associated with Trees 3, 4, 5 and 6 (as identified in the letter from Galbraith & Associates dated 16/April/12) the following is required to the satisfaction of the Responsible Authority:

the footing for the western walls and decks of dwellings BG.01, BG.02 and BG.03, must be constructed on screw piers or bored piles and suspended slab on pier and beam footings, unless otherwise agreed in writing by the Responsible Authority 2. any excavation within must be done by hand and in the presence of a qualified Arborist

any roots encountered must be cut cleanly with a sharp implement.
Before demolition starts:

an annotated photographic study of archival quality of the building prepared by a suitably qualified person to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority as a record of the building. The survey must include: 1. each elevation of the building 2. the interior of the building 3. architectural design detailing of the building 4. a statement prepared by an architectural historian describing and explaining both the design and construction of the building and the photographs. 2. A photographic record to archival quality of the whole significant building, generally in accordance with Heritage Victoria Guidelines of 2007, along with measured drawings (plans, sections and elevations) of existing conditions at 1-50 scale must be lodged with the Responsible in accordance with the provisions of the Burra Charter Article 32.

The significant external elements of the existing building that are to be retained must be fully recorded in photography of archival standard and measured drawings at a scale of 1-50 scale for plans, elevations and sections and 1-10 for details of all mouldings and other architectural elements. The photographic record must be lodged with the Responsible Authority.
An approved heritage consultant must be engaged for the duration of the project (ie, until completion of construction) to prepare and/or advise on the preparation of documentation for the restoration and reconstruction of the significant heritage elements of the project and to provide direction and further advice during construction.
Before the development starts, the heritage consultant must produce a Conservation Management Plan, including a Conservation Policy and a Schedule of Conservation Works, in accordance with the ICOMOS Burra Charter and Heritage Victoria guidelines. The Conservation Management Plan must be to the satisfaction of the Responsible Authority and must clearly set out the objectives and principles to be followed at all stages of the project, including the design of the proposed interpretative displays.

The approved Conservation Management Plan must be implemented to the satisfaction of the Responsible Authority.

The extent of demolition of the original fabric must not include the remnant original elements of the south and east elevations, the northern return parapet of the east elevation, or the west elevation south of the basement car park.
The final design development drawings of the reconstruction must be based on a thorough dimensional analysis of existing photographic evidence, integrated with dimensions of the extant fabric, providing as a product, 1-50 plans, elevations and sections and 1-10 details as above for the whole of the external fabric to be reconstructed. The drawings must include full height sections, in depth from the street frontages to behind the roof cresting of the Mansard roofs and the chimneys.
The layout of the reconstructed Mansard roofs, widows walks, etc, must be confirmed by reference to pre-1937, (ie, prior to the removal of the Mansard roofs) aerial photographs of the site, if found.
The documentation of the reconstruction works must accurately reflect the outcomes of the photogrammetric survey (or other method approved by the Responsible Authority) in all details and dimensions, according to the Guidelines of the ICOMOS Burra Charter, subject to any approved variations to the original form and detail that are agreed with the Responsible Authority during the development of the project.
If during design development, the tendering process or construction, it is found that costs, structural or other factors limit retention of heritage fabric in-situ, any reconstruction must be approved by the Responsible Authority.
All remnant elements of the original fabric (exemplified by the extant original balustrade cast iron) that are discovered on site or elsewhere, must be identified, recorded, analysed and used in the new construction.
Before the demolition starts, a fully documented proposal for the viable support of the retained structure prepared by an approved structural engineer must be submitted to, and approved in writing by, the Responsible Authority.
The proposal must include a publicly accessible display interpreting the history and form of the site, the process of reconstruction and any other relevant information, including that of the interiors. This should include selected historic photographs and may be in the public foyer of the building if a skeleton version is displayed externally, to the satisfaction of the Responsible Authority.
All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well-presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
Before the plans required by Condition No. 1 of this Permit are endorsed, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

dimensions of waste areas 2. the number of bins to be provided

method of presentation of bins for waste collection 2. strategies for how the generation of waste and recyclables from the development will be minimised 3. the times (hours & days) during which waste and recyclables will be collected from the land.

When approved, the plan will be endorsed and will then form part of the permit. The collection of waste and recyclables from the land must be undertaken in accordance with the approved Waste Management Plan, to the satisfaction of the Responsible Authority.

Before the development starts, detailed drainage plans to the satisfaction of the Responsible Authority must be submitted to and be 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 provided. The plans must be in accordance with the guidelines outlined in Clause 22.08 of the Bayside Planning Scheme and must show:

the type of water sensitive urban design stormwater treatment measures to be used 2. the location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas

design details of the water sensitive urban design stormwater treatment measures, including cross sections.

These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999.

The water sensitive urban design stormwater treatment system as shown on the endorsed plan must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.

Before the development starts, detailed plans (three sets) indicating the method of stormwater discharge to the nominated point of discharge must be lodged with Responsible Authority for written approval.
Connection of drainage system to the proposed development must be to the existing drainage pit inside the property to the north side. (Note: if the point of discharge cannot be located then application may be made for legal point of discharge and local drain information, if available; otherwise on-site verification should be undertaken by the permit-holder).
Stormwater discharge must be retained on-site to the pre-development level of peak stormwater discharge. The development must have a 'Stormwater Detention System' installed with a design capacity that is approved by the Responsible Authority.
Drainage associated with the construction of a basement must comply with Council's "Policy for Discharge of Pumped Subterranean Water Associated with Basements or Below-Ground Structures" to the satisfaction of the Responsible Authority.
All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from each driveway onto the footpath.
This permit will expire if one of the following circumstances applies:
1. the development is not started within two years of the date of this permit.
2. the development is not completed, or the use does not start, within four years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 an application may submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Although the Strategic Land Use Framework Plan has the activity centre noted as a 'Neighbourhood Centre' the Council advised that this designation has been consistently accepted as referring a Neighbourhood Activity Centre.

[5] We do not give any credence to the possibility that the reconstructed historic roof would offend viewers on the waters of Port Phillip Bay.

[6] The illustration that accompanies Design Suggestion 2.2.2 Set Back Upper Levels of Tall Buildings or Use a Podium and Tower Form to Help Create a Pedestrian Scale at Street Level, in Guidelines for Higher Density Residential Development (Department of Sustainability and Environment, 2004) shows a three-storey podium as an example of a pedestrian-scale building.

[7] Refer to Hogan Carrum Property Pty Ltd v Stonnington CC & Ors (Correction) [2013] VCAT 16 at paragraphs 63-64.

[8] We note that this included a calculation of the car parking demand associated with the restaurant that exceeded that derived by utilising the rate specified in Clause 52.06-5.

[9] We do not make any finding as to whether the commercial component should or should not remain. We have made our decision on the proposal that is before us. Should the Applicant wish to remove the commercial element, then an amendment to the permit will need to be applied for pursuant to the relevant provisions of the Planning and Environment Act 1987.

Oceans Beaumaris Pty Ltd v Bayside CC

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

Oceans Beaumaris Pty Ltd v Bayside CC (Correction) [2013] VCAT 1422 (27 September 2013)

Parties