Orrong Road Investment Trust v Stonnington CC & Ors [2012] VCAT 737

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

DA-1100 to DA-1104 Rev 2, DA-2000 & DA-2001 Rev 2, DA-3001 to DA-3004 Rev 2

1. The decision of the Responsible Authority is affirmed.
2. In permit application 0289/11 no permit is granted.

Mr J Gobbo QC and Mr P O'Farrell of counsel by direct brief

• Mr J Govenlock, town planner of Urbis;
• Mr M Sheppard, urban designer of David Lock & Associates;
• Mr M McWha, landscape architect of McWha Landscape Architects;
• Mr C Goss, architect and montage specialist of Orbit Solutions; and
• Mr J Briggs, architectural historian.

The evidence of Mr C Coath, traffic engineer of GTA Consultants was not called as his evidence accepted by all parties at the start of the hearing.

Mr I Pitt, SC by direct brief appeared on behalf of Ms L Warschauer, Mr F Warschauer, Ms S Fregon, Mr J Nicolis and Mr D Carroll.

• Mr D Bick, architectural historian; and
• Ms S Rigo, town planner of Hansen Pty Ltd.

The land consists of three separate properties, all containing detached two storey buildings. It is on the west side of Orrong Road with a frontage of 46.54m, a depth of around 33.46-42.67 metres and a total area of 1,727sqm.

No. 715 is affected by a covenant that requires buildings to be constructed of brick, stone or concrete with tiles, slates or shingles on the roof.

The development of a 4-5 storey building containing 10 apartments with basement car parking for 21 cars accessed via a single access point at the northeast corner of the street frontage.

Section 79 Planning and Environment Act 1987

Clause 32.01-4 To construct two or more dwellings on a lot in R1Z

1. This is an application to review the failure by Stonnington City Council ('the Council') to grant a permit within the prescribed time for an apartment building across three properties at Nos. 715, 717 and 719 Orrong Road, Toorak.
2. The planning application was received by the Council in April 2011. It was publicly advertised and 16 objections were received. After this application for review was lodged, the Council's delegate considered the application and determined the Council would have refused the proposal on 8 grounds that related to issues of neighbourhood character and residential amenity as well as matters of detail such as the basement design compliance with the relevant Australian Standards and the front fence design.
3. In response to this application for review, the Tribunal received 8 statements of grounds from surrounding properties, including properties adjoining the south (side) and west (rear) boundaries of the subject land. One of these parties advised an agreement had been reached with the Applicant that involved the inclusion of conditions on any planning permit to issue. Hence, their withdrawal from this application is conditional and this means they remain objectors and parties to this proceeding.
4. Mr Govenlock and Mr Sheppard both required changes to the plans as part of the preparation of their respective expert evidence. Hence, these changes were incorporated into the amended plans circulated prior to the hearing. At the start of the hearing, there was no objection to the request to substitute these plans, so we granted leave.

1. Having regard to the submissions and expert evidence presented during the hearing, the three main issues in this case are:
   • Whether the proposal adversely impacts upon the heritage significance of the property to the rear at No. 22 Lascelles Avenue;
   • Whether the proposal is respectful of the neighbourhood character; and
   • Whether the proposal has responded appropriately to the amenity of the neighbouring properties by way of overlooking, overshadowing and visual bulk.
2. We note that the parties concurred at the commencement of the hearing that traffic and car parking were not contested and we have no concerns with those aspects of this proposal.
3. Before turning to these matters, we wish to make comment on some of the planning policies that are relevant in this case as they assist in setting some of the context and background to our decision.

1. We agree with the Council's submission that the subject land is within a well serviced area that has access to public transport and is not far from the Toorak Village activity centre. Compact city policy encourages more intensive development in such areas. However, it is not within an area where the local planning policies in the planning scheme indicate a significant level of change is anticipated as such areas are generally within the activity centres or along identified arterial roads. Nevertheless, the Council accepts that medium density housing and, as Mr English stated, "even reasonably intense medium density housing" is possible within this area. This is because in the Council's view the subject land is not within "a sensitive residential hinterland location" as there has been a significant amount of redevelopment in the area, of which a large proportion is multi-storey residential development. However, that does not mean that anything goes. It is the Council's submission that whilst an apartment style of development is appropriate, such development must appropriately respond to its context, being the physical context and the policy context that includes the following extracts (as identified by the Council):
   • To ensure the design and scale of new development makes a positive contribution to the built form of the area and is respectful to the existing character and streetscape.
   • Development be of a height and scale that is consistent with its particular setting and location and generally respect the one to two storey built form character of the City's residential areas and most commercial and industrial areas.
   • The proposed development reflects, maintains and enhances the predominant scale and built form character of the surrounding area.
   • To encourage new development that reflects the scale, character and appearance of surrounding residential areas.

The Heritage Significance of No. 22 Lascelles Avenue

1. The adjoining property at No. 22 Lascelles Avenue is concerned the proposed development will adversely affect its heritage significance. No. 22 Lascelles Avenue contains a large two storey mansion known as Trawalla that has an individual Heritage Overlay affecting it, and is included on the Victorian Heritage Register (at the State level)[1].
2. We agree with Mr Gobbo's description of Trawalla in his closing submission, that it is a most beautiful house with unusual features. The question is whether a new building at the rear of it that will be partially visible above Trawalla's driveway will adversely affect its heritage significance. In this regard, there were two aspects particularly focussed upon during the hearing. The first was the impact of the proposal upon the context of No. 22 Lascelles Avenue given the extent of heritage registration and Heritage Overlay is limited to the Trawalla property (and not the subject land). The second was the impact of the proposal on the public view along the driveway of Trawalla.

1. Mr Pitt highlighted the Heritage State planning policy that seeks to ensure an appropriate setting and context for heritage places is maintained or enhanced. In regard to the context of Trawalla, Mr Bick stated the experience of Trawalla is affected by what is around it, so it will be adversely affected by having a taller building partially visible at the rear of Trawalla. We are not persuaded of this for the following reasons:
   • There is no description of the setting around Trawalla in its statement of significance; and
   • There were already buildings and closely subdivided lots surrounding Trawalla when it was registered as having heritage significance, hence an aspect of the registration and its significance accepts the current curtilage of Trawalla and the existing interfaces.

1. Mr Bick acknowledged Trawalla is effectively hidden from public view in Lascelles Avenue other than for the view along the driveway on its southern side. He described the south side of Trawalla as the principal façade, albeit he acknowledged:
   • The wrought iron gates at the street frontage do interfere with the view when they are closed; and
   • A public viewer would appreciate the elaborate façade but not the detail such as the location of the front door into the house.
2. The Council referred to its Heritage local planning policy at clause 22.04 and acknowledged that the proposal will be potentially visible, particularly at the rear of the driveway. However, in the Council's view, the proposal will be recessive and have a negligible impact upon the heritage significance of Trawalla. Mr English advised the Council adopts Mr Briggs' view on the heritage impact of this proposal.
3. Mr Briggs acknowledged the proposal is about 14 metres higher than the carport at the end of the driveway, and he accepted this will change part of Trawalla's setting. However, it is his opinion that this change does not tip the balance to a point of unacceptability. We agree with Mr Briggs' evidence that the features of significance along the driveway such as the symmetry and the sense of grandeur will remain notwithstanding any perception of reduced curtilage as a result of a larger building in the background behind the driveway.
4. Trawalla is located in a dense urban area containing tall buildings, wide buildings and buildings that cover a fair proportion of land, and this is evident immediately surrounding Trawalla. We agree that the view of the sky to the side of Trawalla and above the carport/garage will change with the inclusion of a wider and taller building on the subject land. However, we agree with Mr Briggs' evidence that the features of significance will remain, and we are not persuaded the limited public view along the driveway will be adversely affected by the proposal.
5. We are satisfied that the proposed development would not adversely impact upon the heritage significance of Trawalla.

1. There are two aspects to the neighbourhood character that were focussed upon during the hearing. The first was the streetscapes as viewed in the public realm, and the second was the layout of buildings and landscaping.

1. The Council and the residents consider the physical context of this neighbourhood to be a low scale built form and, as such, the proposed 4-5 storey scale does not respond appropriately.
2. The Council described the neighbourhood character as:

Along this section of Orrong Road, the built form consists of predominantly one and two storey residential forms. Development on the western side of the street in the vicinity of the site is predominantly two storeys. Although larger building forms exist such as the apartments on the corner of Orrong Road and Toorak Road, and Orrong Road and Trawalla Avenue, these buildings are somewhat detached from the subject site, with the immediate neighbours exhibiting a reasonably consistent scale combined with detached forms.

1. Within this context, the Council says the 41 metre frontage of the building presents a mass that is in stark contrast to the detached building forms in this section of the street. Further, it is the Council's view the overall height is at odds with the immediately adjoining properties and exacerbates the impact on building spacing.
2. We agree with the Applicant that the neighbourhood character is broader than the immediate neighbours and the properties opposite the subject land. We think Mr Sheppard's description of the neighbourhood is a better representation of the features of the neighbourhood. We agree with him that a defining characteristic of Orrong Road is the street trees (albeit less so in the winter months), which means for much of the year buildings make a limited contribution to Orrong Road, which is less than typical. We agree with Mr Sheppard that there is a diverse and highly varied built form in the broader neighbourhood, and we accept the neighbourhood in general terms is not one that is sensitive to change. Within this context, we think a taller, wider building can fit within the Orrong Road streetscape.
3. Whilst the Council had no particular concern with the architecture of the proposal, Mr Pitt stated the architecture exaggerates the height and the prominence of the third floor of the proposal. Mr Pitt's witness, Ms Rigo also commented on the Orrong Road presentation:
   • The three elements are broken up;
   • Three storeys to the frontage is a reasonable transition to the two storeys on either side, but she is concerned about the first and second floors creeping forward closer to the street so they have a visually strong presence;
   • The first floor north wall is 18.6 metres in length and the south wall is 28.5 metres in length, so again there is a strong presence to the sideages as much of them will be visible from the street; and
   • The breaks in the front façade also include three storey sheer wall sections.
4. Overall, Ms Rigo expressed the view the third storey needs to be tempered to provide consistency to the buildings on either side, including stepping back further to the third floor. However, she conceded under cross-examination that the third floor does not need to be invisible from the street. Mr Sheppard explained the third floor (or fourth level) has been setback in accordance with his recommendation so that it is barely visible from the street. It is his view that the building will read as a three storey form in the street and will fit within its immediate context. We are satisfied the design achieves Mr Sheppard's desired outcome, and we accept that a three storey form with a fourth recessed level will fit in and be respectful of the neighbourhood character.
5. In regard to the width of the building, Mr Sheppard stated the detached two storey buildings on either side of this site are at odds with the balance of medium density housing in the street. It is his view that the building widths in Orrong Road vary between 10 and 45 metres and provided an aerial view illustrating this. We agree with Mr Sheppard that the proposed width of 39 metres is acceptable because it is within the range that exists in Orrong Road. We find the front façade is broken up into a series of forms through the set backs, articulation and materials. Overall, we are satisfied this would be a contemporary and acceptable addition into this streetscape.
6. The Council was critical of the landscaping opportunities as the basement site coverage is 70% and there is also ground level paved and terraced areas. Ms Rigo shared this concern pointing out the neighbourhood includes a landscape character of gardens, street trees and topography that retains a sense of space around the buildings in this area. However, she accepted front gardens are often lost because of solid fencing, which meant she was quite comfortable with the streetscape landscaping proposed. We agree with Ms Rigo and find Mr McWha's landscape concept for the front of the site is appropriate.
7. One final point of detail in regard to the neighbourhood character is the front fencing. The Council expressed a preference for a 1.2-1.5 metre high front fence despite acknowledging the existence of solid fencing elsewhere in the street, including along much of the existing frontage of the subject land. We are not persuaded this is either necessary or appropriate given the existing neighbourhood character. In our view, the more appropriate design outcome is to balance the style and height of fencing with the landscaping opportunities and, again, we find Mr McWha's landscape concept for the front of the site has achieved an appropriate balance.

1. We agree with Mr Gobbo's submission that this case is about the interfaces. In our opinion, the interfaces of the proposed building with the immediately surrounding properties is the key issue for the design of a new building on the subject land, and it is the reason why we have decided to refuse this proposal.
2. Mr Gobbo stated the proposal was designed having regard to the surrounds, but this is a case where it is the detail of the immediate interfaces that is important. Unfortunately, this was not well understood until during the hearing. It was advantageous to us and the parties that an accompanied inspection was undertaken of the majority of the adjoining properties at the start of day 2 of the hearing. This revealed aspects of layout of the adjoining properties that could not be ascertained from a feature survey or aerial view. These aspects are relevant to our consideration, and include the proximity, use and layout of areas of secluded private open space to the proposed building.

1. We are generally satisfied that the proposal does not create any unreasonable impacts upon the amenity of the adjoining properties by way of overlooking and overshadowing for the following reasons:
   • The potential for overlooking has been minimised by incorporating screening to 1.7 metres in height for balconies and windows where necessary. This is appropriate as the outcome to be achieved is to minimise the potential for overlooking rather than preventing overlooking entirely; and
   • The shadow cast by the proposed building generally falls on the ground floor of 20 Lascelles Avenue and 711 Orrong Road between 9am and 3pm at the September Equinox. We agree with Mr Sheppard that it generally falls on the driveway of 711 Orrong Road rather than the rear secluded private open space. The shadow also generally falls within existing shadow cast onto 20 Lascelles Avenue at 9 and 10am. The outcome to be achieved is to maintain a reasonable level of sunlight to private open space and we find the shadow impact, including of the raised terrace at the front of 711 Orrong Road is acceptable.

1. The Council and adjoining properties expressed particular concern about the impact of the visual bulk of the building upon the amenity of the adjoining properties. Mr Pitt pointed out the local policy at clause 22.06 states proposed development should maintain and enhance the overall amenity of the surrounding area, particularly by protecting residential properties from unreasonable visual bulk. The Council acknowledged visual bulk is a subjective judgment that is not quantitative in either clause 55 or the Guidelines for Higher Density Residential Development.
2. There have been decisions by the Tribunal that have found standard B17 of clause 55 is an appropriate test for visual bulk. Mr Gobbo asked Ms Rigo if standard B17 is the base measurement point. Acknowledging it is a primary test, she noted it does not deal with situations where abutting lots have different ground levels, and it does not guide the impact of long walls that extend deep into sites. There have been decisions by the Tribunal that have found standard B17 is not a sufficient test for visual bulk, and as the Council stated it is a subjective judgment that needs to be made in each case having regard to the particular circumstances of the proposal and the adjoining properties.
3. In this case, the proposal involves a building with a scale of approximately 4 to 4.5 storeys facing the adjoining properties because of the slope of the land. All four adjoining properties have rear secluded private open space areas and three out of the four have swimming pools. Mr Sheppard agreed with Mr Pitt that they are sensitive areas.
4. Visual bulk is the planning term used to describe the impression that a building will make in its surrounds. It is incumbent upon a development to provide appropriate setbacks, landscaping and articulation in terms of building style, height and size to ensure that it is respectful of both the neighbourhood character and the amenity of adjoining properties, particularly their secluded private open space areas.
5. Mr Govenlock described the neighbourhood as generally having high site coverage with paving and swimming pools, minimal side setbacks and large building envelopes. Mr Sheppard stated side setbacks vary considerably between 1 and 5 metres, hence the proposed 3 metre side setbacks are a reasonable fit. Notwithstanding this general 'fit' into the neighbourhood, we think this building is too large. We are not persuaded the side and rear setbacks in this case have achieved the right balance to minimise the visual bulk impact upon the adjoining properties.

1. These two properties are located at the rear of the subject land and are situated at a lower ground level than the subject land.

1. The interface with this property of concern to us is the indoor pool, which Ms Rigo described as the key recreation area for the property with a glass roof that provides its only outlook to the sky.
2. During the hearing there was some dispute about the weight to be given to the pool as open space. Mr Gobbo said we should not put much weight on it being the principal private open space as it is not the only living area and it is not the only conservatory. Mr Pitt responded that, whilst No. 22 Lascelles Avenue has many rooms, the pool is the main casual area and is effectively the backyard. Having had the benefit of inspecting this property, we are satisfied the indoor pool area is an area of secluded private space that provides for recreational and social gatherings and should be afforded consideration in regard to the visual bulk impact of the proposed building.
3. We agree with Mr Gobbo that this does not mean a new building on the subject land has to be invisible, but rather it is a question of balance in order to maintain a reasonable enjoyment of this private space.
4. We agree with Ms Rigo that the design does not sufficiently address the slope of the land as the basement is 2.1 metres above ground and the ground floor is 3.2 metres above the ground level of No. 22 Lascelles Avenue. In our opinion, a greater effort should have been made to step the building down to the rear. Under cross-examination by the Council, Mr Govenlock acknowledged the lack of stepping down in the northwest corner of the subject land "is a good criticism" but pointed out the basement design is a constraint that cannot be stepped down. In our opinion, the design should respond to the existing constraints associated with its interfaces rather than the design being a constraint in itself. This means the design needs to go back to the basics of understanding the interfaces that it has with the adjoining properties and responding to those interfaces.
5. There was cross-examination of various witnesses about how much of the building would be visible from No. 22 Lascelles Avenue. At the end of the hearing, Mr Gobbo suggested changes to the rear of the building to effectively bring it into compliance with standard B17. We are not persuaded this is sufficient to diminish the visual bulk impact. As we stated earlier, a development needs to achieve appropriate setbacks, landscaping and articulation in terms of building style, height and size and we do not think compliance with standard B17 in this case is sufficient.
6. Mr McWha's landscape concept for the rear of the site was highlighted, including that there will be an evergreen hedge up to 9 metres in height along part of the north side boundary wrapping around to the west rear boundary adjacent to No. 22 Lascelles Avenue. However, Mr McWha agreed with Mr Pitt the proposed trees are about 3 metres below the fence height and it will take about 10 years to achieve a 7 metre height. Further, he agreed the landscaping in the northwest section of the subject land is constrained by the basement.
7. We are not persuaded the combination of the building height, setbacks, articulation and landscaping as proposed are sufficient to minimise the visual bulk impact to No. 22 Lascelles Avenue.

1. In response to Mr Gobbo's cross-examination, Ms Rigo acknowledged No. 20B Lascelles Avenue will have a limited visibility of the proposed building because of the existing landscaping, the proposed landscaping and the setbacks of the proposed building from the common property boundary. As we agree it is not necessary for the proposed building to be invisible, we think this particular interface has been appropriately designed to minimise the visual bulk impact to No. 20 Lascelles Avenue. .

1. Before turning to the side interfaces we wish to comment on the simulated view contained in the images presented as part of the Applicant's case. Orbit Solutions submitted three "views" of the proposed building, two were from Orrong Road and one appeared to be from the rear open space of the ground floor apartment at No. 20 Lascelles Avenue. This caused some confusion in the hearing and on the accompanied inspection, as the view does not correspond with the actual layout of this open space area and the building at No. 20 Lascelles Avenue. Mr Goss of Orbit Solutions explained this view is a "simulated view", which means it is not a photomontage. He explained it was prepared to assist the Tribunal based on the available data[2], but it does not assist us at all in this case.
2. Mr Goss stated he had done simulated views before and presented them to VCAT. We cannot comment on this but do wish to express concern about the inclusion of this simulated view in this case:
   1. It is quite clear in this case that the simulation is wrong, indeed the parties who attended the accompanied inspection with us could see this.
   2. The 'data' and the qualifications about the simulation that Mr Goss gave orally in the hearing were not specified in the statement submitted with the 'views' prior to the hearing.
   3. The inclusion of the simulation as 'view 3' without a clearly separate section in the statement distinguishing this view/simulation from the other views/photomontages (views 1 and 2) may mislead parties or indeed the Tribunal about the accuracy of the image. Indeed, in the first instance, our expectation was that the simulation was of the same quality and had undergone a similar rigour to that which is expected of a photomontage.
3. In Wild Design Architecture v Greater Geelong CC [2012] VCAT 505 and Ever Bright Group v Whitehorse CC & Ors (Correction) [2012] VCAT 597, the Tribunal found:

The role that photo montages play in a hearing needs to be understood - they are just an aid and are rarely relied upon in determining the merits of the design. The Tribunal does rely upon development plans and elevations and a landscape plan (if one is provided).

1. In our opinion, a simulation is of a lesser value as an aid than a photomontage. We suggest that if the inclusion of simulated 'views' is considered by a party to be desirable, simulations should be clearly distinguished as such, and there should be a written statement about the data and assumptions/estimates that have been relied upon to create them and their limitations.

1. Ms Rigo pointed out there are habitable rooms, a raised rear terrace area and a rear secluded private open space area with a swimming pool that will be affected by the visual bulk of the proposed building. Mr Sheppard stated half of the first floor and the levels above will be visible from the rear of No. 711 Orrong Road, and we note much of the south walls have a solid appearance.
2. In his oral closing submission, Mr Gobbo stated:
   • The terrace rear is not a principal private open space area because it is next to the driveway;
   • There is a setback of about 13-15 metres between the proposal and the pool;
   • There is no unacceptable overshadowing or overlooking; and
   • The bulk of the building will be visible but a large view corridor that is broader than just the subject land is retained.
3. Due to the existence of the driveway and the garage on No. 711 Orrong Road, there is limited opportunity for any landscaping on this property to assist in softening the impact of the proposed building. Mr McWha gave evidence there will be deciduous trees on the south side up to 8-9 metres in height with dense branch structure. Landscaping on the subject land's side of this boundary is both necessary and desirable. However, we are not persuaded the landscaping is sufficient to address the visual bulk impact. We find the overall length, height and architectural treatment of the south elevation creates a visually oppressive building form. It is not our expectation that the building be invisible but we think a more generous approach should be taken in regard to the interface with the rear terrace area and pool area of No. 711 Orrong Road.

1. The adjoining property to the north of the subject land did not object to the planning application and is not a party to this proceeding. Nevertheless, it is an interface that we have had regard to, and indeed should have regard to, in considering the merits of the design. Mr Gobbo stated the rear private open space of this property "is hardly a pristine space" so there are no unreasonable impacts that prevent its use in a private and secluded way. It is our view that the proposal creates a significant building form adjacent to this boundary that could have a visual bulk impact upon this property, including the enjoyment to be derived from the rear open space area that appears to be at a lower ground level than the proposed ground level of this building. If there is to be any new proposal for an apartment building on the subject land, we wish to make it clear that we would not want to see any further building bulk added to this side of the development.

1. The interfaces of the proposed building with the immediately surrounding properties is the key issue for the design of a new building on the subject land, and it is the reason why we have decided to refuse this proposal. We think its massing and bulk to the side and rear are inconsistent with the scale and bulk seen in the neighbourhood. We are not persuaded the combination of the building height, setbacks, articulation and landscaping as proposed are sufficient to minimise the visual bulk impact on the adjoining properties. The design needs to go back to the basics of understanding the interfaces that it has with the adjoining properties and designing to respond to those interfaces. For all of the above reasons, we have decided to affirm the Council's decision and order that no permit be issued.

[1] This means permission must be sought from Heritage Victoria for any building, works, alterations and additions to the Trawalla property, and no planning permission is required under the Heritage Overlay of the Stonnington Planning Scheme.

[2] Mr Goss explained the available data relied upon was sections with tree heights, a feature survey, near map for vegetation on No. 20 and an assumption that the trunk was in the centre of the canopy, the location of the building and boundary walls, the extent of the pool was not clear and estimated an appropriate ground level difference of 1.5 metres.