1-9 Balcombe Road and part 35 Childers Street, Mentone

Pace Development Group v Kingston CC [2012] VCAT 38

1. Leave is given to the permit applicant to substitute for the permit application plans, the following plans filed with the Tribunal:

TP1.02, TP1.03, TP1.04, TP1.05, TP1.06, TP1.07, TP1.08, TP1.09, TP1.10, TP1.11, TP1.12, TP1.13, TP1.14, TP1.15, TP1.16, TP1.17, TP2.01, TP2.02, TP2.03, TP2.04, TP3.01, TP3.02, all Revision B

TP4.01, TP4.02, TP4.03, TP4.04, TP4.05, TP4.06, TP4.07, TP4.08, TP4.09, TP4.10, all Revision A

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 the following are joined as parties to this proceeding:

Helen Soulsby, Kevin Soulsby, Allison Mooney, Paul McGarry, R.J. Rees and B.M. Kean, G.F. WolterMIEAust, Karen and Branko Ruder, Christine Bellert, Martha and Nigel Baptist, Mentone Primary School

1. The decision of the responsible authority in relation to permit application no. KP-786/2010 is affirmed. No permit is granted

Mr Adrian Finanzio, barrister, instructed by Minter Ellison

• Mr Stuart McGurn, town planner, Environment Resources Management Australia
• Mr James Holdsworth, architect and urban designer
• Mr Henry Turnbull, traffic engineer, The Traffix Group Pty Ltd

Evidence prepared by Mr J Wilkinson, architect, Scharp 3D visualisations was accepted on the papers.

Mr Stuart Morris QC, barrister, assisted by Mr J Dabscheck, solicitor, Maddocks

• Mr Robert McGauran, architect and urban designer, McGauran Giannini Soon Pty Ltd
• Mr Craig Czarny, urban designer, Hansen Partnership Pty Ltd
• Mr Chris Coath, traffic engineer, GTA Consultants

For Vic Roads - Metropolitan South East Region - Ms Natalie Luketic, solicitor, Rigby Cooke Lawyers

Melbourne Water Corporation did not object subject to conditions or attend.

Moorabbin Airport Management Centre did not object subject to conditions or attend.

Leo Gamble, Ian Ling, Barry and Judith Stewart, Larry and Wendy Knowles, Kirsten Jansen-McMaster, Susan and Rene Blackford, Brian and Helen Foley, Stephen Calvert-Smith, Dr Monica O'Kelly, Kevin Soulsby, Helen Soulsby, Penelope McGuire White, Yvonne Bartonek, Christina Leslie, Allison Mooney, Paul McGarry, Nathan McDonald, Martha and Nigel Baptist,

Peter Radcliff, Helen Soulsby, Michael Tate in person

Ms Dorothy Booth represented Mordiallic and District Historical Society and The Friends of Mentone Station and Gardens Inc

To develop a mixed use building comprising 500 square metres of shops (2 tenancies), 1,791 square metres of offices 38 tenancies) and 191 apartments. The offices and retail would be located on the ground floor.

All apartments would comprise one or two bedrooms, living area, amenities and terrace.

The development would include 284 car parking spaces accommodated in three basements. The basements would be accessed from both Balcombe Road on the north side and Childers Street on the south side of the site. Vehicular access to Childers Street would be shared with No. 33-35 Childers Street.

The building would comprise a four level podium built largely to the site's boundaries.

Above the podium would be two towers. The northern tower is proposed to be twelve storeys and the south tower eight storeys. An entry/atrium internal to the building, and an external courtyard/rain garden would be located on the ground level. A residents' gym, outdoor communal space, and communal garden are proposed for Level 1.

The northern tower would have a height of 39.1 metres and the south tower would be 27.3 metres high. The podium would have a height of 14.9 metres.

Materials and finishes would include applied coating to the concrete on the towers, light grey metal with protruding fins to the podium, powdercoated metal balustrades, clear and tinted glass and glass balustrades. Colours would mainly be white on the towers and grey on the podium, with Corten metal or similar to the main entry.

Application under section 77 of the Planning and Environment Act 1987

Abuts three roads all included in Road Zone Category 1

Clause 32.04-1 (use of land for office and shop in MUZ)

Clause 32.04-5 (construct two or more dwellings in MUZ)

Clause 32.04-7 (buildings and works for office and retail in MUZ)

Clauses 10, 11, 13, 14, 15.01, 16.01, 17, 18, 19, 21.03, 21.04, 21.05, 21.06, 22.1, 52.06, 52.07, 52.29, 52.34, 52.35, 52.36 and 65

The review site comprises seven lots located on the southwest corner of Nepean Highway, Warrigal Road and Balcombe Road. The site is irregular in shape. It has a frontage of 32.3 metres to Balcombe Road, a frontage of 37.7 metres to Warrigal Road and a frontage of 52.6 metres to Childers Street. It has a total area of 4427.35 square metres.

The site is occupied by the Mentone Ten Pin Bowling alley and associated café and car parking. The land is generally flat and is not constrained by any special features or encumbrances. Access to the site is presently via a service road adjacent to Balcombe Road.

Abutting and nearby land to the west on Balcombe Road is used for commercial purposes, accommodated in single and double storey commercial premises. Planning permit KP302/2010 has been granted to construct a four storey apartment building at No. 15 Balcombe Road.

Land to the southwest fronting Childers Street is used for single storey dwellings, a tennis club and two primary schools. A four storey apartment building at No. 35 Childers Street is currently under construction.

A three storey motel is located opposite the site on the east side of Warrigal Road.

We inspected the site and its environs on 4 and 13 December 2011. The parties did not accompany the inspections.

Piccolo Developments Pty Ltd v Melbourne CC [2008] VCAT 2614

Ashwerth Pty Ltd v Stonnington CC [2009] VCAT 2769

1. The permit applicant proposes to develop the existing Mentone Tenpin Bowl for a mixed use building. It would include two retail shops of approximately 500m2 in area, thirty-eight small offices ranging in size from 33m2 to 81m2 in area (total floor area of 1,791 square metres), and two residential towers containing one hundred and ninety-one dwellings. The two towers would be located above a partial four storey podium. One tower would be twelve storeys and the other would be eight storeys. Car parking would be provided in three basements accessed from both Balcombe Road and Childers Street.
2. In May 2010, Kingston City Council determined to refuse to grant a planning permit for the proposed development. Council considers the development to be excessive in its context, to be an overdevelopment of the site, to make inadequate provision for parking and traffic, and to make inadequate provision for pedestrians.
3. The decision of the responsible authority is supported by many local residents, two primary schools and a church, all located near the review site. They consider the development to be excessive, contrary to the character of the locality and it would impose adverse amenity impacts, including traffic congestion.
4. The permit applicant contests these grounds of refusal and considers the development to comply with planning policy, to be an appropriate scale and design for gateway site, and it makes adequate provision for its traffic and parking.
5. The key issues we must determine in this matter are:
   • Would the development fit its strategic and urban context?
   • Would the development impose adverse amenity impacts on neighbours?
   • Would the development provide satisfactory amenity for its future occupants?
6. We 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 Kingston Planning Scheme, we have decided to affirm the decision of the responsible authority and direct that no permit be granted. Our reasons follow.

Would the development fit its strategic and urban context?

1. State planning policy encourages Melbourne to become a more compact city. This vision is to be achieved by accommodating approximately half of the forecast new households within established urban areas. Providing more compact dwellings is expected to provide greater housing choice, given that many of the new households are expected to comprise one and two persons rather than families. It is also expected that providing more dwellings within established suburbs will enable those areas to retain or increase their population so the extensive infrastructure within these areas continues to be well used. A more compact city is also expected to reduce the amount of land presently used for food production or that has landscape values being transformed into new urban suburbs. It should also enable Melbourne to be a more sustainable city.
2. The State planning policy framework encourages most areas of Melbourne to accommodate additional households. Established suburbs, strategic redevelopment sites and activity centres all have a role to play in accommodating new dwellings[2]. Areas constrained by their prevailing "fine grain" pattern of lot sizes, or by heritage, inundation, vegetation or steep topography may change less than other areas.
3. The population of the municipality of Kingston is expected to grow from 135,000 to 151,000 by 2021. Average household size is declining and more than half of the municipality's households comprise one or two persons[3]. However most of the municipality's housing stock comprises large family homes. The municipal strategic statement supports a more diverse housing stock. Indicative households forecasts provided to the Tribunal indicate Kingston might accommodate an additional 9,137 dwellings by 2031, and most of these would be smaller dwellings suitable for one and two person households.
4. Consistent with the broad directions in the State planning policy framework, the responsible authority anticipates intensive developments located in and close to activity centres will make a significant contribution to providing a more diverse housing stock. Additional housing is also encouraged on sites well located to the activity centres, employment corridors and those adjacent to the principal public transport network. Approximately forty-one percent of new dwellings are forecast to be accommodated within activity centres, with the remainder on strategic redevelopment sites or on smaller incremental infill sites in established suburbs.
5. The review site is identified as being adjacent to an area designated by local planning policy to be an 'area for promotion of increased housing diversity'[4]. The municipal strategic statement also identifies mixed use areas which 'offer potential for innovative infill development, many of which are located at the periphery of activity centres'[5]. Planning policy seeks to:

Promote mixed use precincts around key activity centres which encourage a broader range of cultural, social, commercial and higher density housing opportunities to complement retail functions of activity centres and enhance economic vitality[6].

1. The scale and intensity of development in all areas, including preferred areas is not unconstrained. Policy notes that many mixed use areas are located on the periphery of activity centres and the development on these sites will need to address existing site constraints and respond to the immediate context of the site[7]. The local planning policy framework guides consideration of the scale and intensity of development. Local policies include general principles that encourage development to:
   • respond to the differential capacity of local areas in Kingston to accommodate different types and rates of housing change,
   • respond to the scale of centres.
   • respect neighbourhood character and local context,
   • be site responsive,
   • be a high standard of design and
   • provide a high standard of amenity for future residents.
2. We concur with the parties that the local planning policy framework provides limited guidance in this matter. Local residential design policy is intended to be applied to developments of one to three storeys and is not applicable. However, it confirms a general strategic approach that encourages development to be responsive to its site and neighbourhood context[8].
3. Structure plans often guide the scale and form of new development. A draft structure plan has been prepared for the nearby Mentone major activity centre. That structure plan has now been implemented through Design and Development Overlay schedule 18 that has been introduced on an interim basis. The structure plan acknowledges the capacity of the activity centre to accommodate further development is somewhat constrained by its fine grain subdivision pattern and heritage buildings. New development within the centre is limited to four storeys, rising to seven storeys east of the train station. The review site is outside the activity centre structure plan.
4. The responsible authority also referred us to the Moorabbin to Mordialloc Integrated Framework Plan that aims to guide development in several activity centres along Nepean Highway. That plan generally proposes development be no more than eight storeys and be concentrated within designated activity centres. However it also does not refer to this site.
5. We also turn for guidance to clause 15.01 of the scheme, and the Guidelines for Higher Density Residential Development regarding the development of strategic sites such as this. Relevant urban design principles include:
   • development is to respond to its context in terms of urban character, natural landscape and features.
   • the public realm should be protected and enhanced.
   • people should feel safe to live, work and visit.
   • the interfaces of buildings should enhance the visual and social interfaces.
   • new development should respect, not overshadow its neighbours or the public realm.
   • it should be a high standard of architecture and urban design.
6. Objective 2.1 of the Guidelines for Higher Density Residential Development encourages:

The height of new development responds to existing urban context and neighbourhood character objectives of the area[9].

New development should be appropriate to the scale of nearby streets, other public spaces and buildings[10].

1. These objectives can be achieved by relating building height to street width, front setbacks and using podium and tower forms to minimise bulk and wind effects.
2. We think the main approach we take from the above strategic frameworks is the development on this site should be intensive and robust to ensure a rare opportunity to provide additional housing is realised, provided its scale and massing relates to its physical and strategic context. Care needs to be taken to ensure the public realm around the building is safe and attractive.
3. The responsible authority submitted this development should be rejected as it significantly exceeds the height and scale of development contemplated within the Mentone major activity centre or other locations on Nepean Highway. These plans imply that development on sites such as this should not exceed the preferred scale of development within activity centres. Heights of seven and eight storeys preferred elsewhere set an upper benchmark which should not be exceeded on this site.
4. The permit applicant opined the planning policy framework does not mandate a built form that requires the tallest buildings to be located in the higher order centres, and buildings outside the activity centres on strategic redevelopment sites must be subordinate, including being of a lesser height.
5. We think the permit applicant's submissions press too strongly a literal gap in planning policy. Pressed to its logical conclusion, the permit applicant submits an open go approach that would enable any strategic redevelopment site outside an activity centre to be developed more intensively than those within higher order activity centres. In our view, the planning policy framework strongly encourages higher order activity centres to shoulder the major urban consolidation task. They are expected to accommodate intensive development, including taller buildings, as they can provide future residents with convenient access to services, employment and public transport. Higher order activity centres are the preferred location for the most intensive buildings. This can be seen as tall buildings of heights similar to this proposal are being approved in higher order suburban activity centres such as Doncaster Hill, Frankston, Brunswick, Preston, as well as areas identified for intensive development in South Yarra and Port Melbourne. On the other hand we cannot identify any 12 storey buildings in the order of 20 kilometres from Melbourne that are located outside activity centres.
6. We accept the planning scheme does not generally prescribe that development outside activity centres is to be lesser in height than within activity centres. Strategic redevelopment sites also have an important role in implementing a more compact Melbourne, and development on these sites should be optimised. Development on strategic redevelopment sites should be more intensive than the prevailing built form, so rare opportunities to achieve compact city objectives are not wasted. However, the scale and height of new development is not unlimited. It should fit "comfortably" and be respectful of its context. We think the scale and form of development within activity centres encouraged by policy is a relevant context that guides the scale and intensity of development of sites outside these centres. Otherwise we will gradually transform to an urban form where the most intensive development is scattered across many sites remote from services and public transport, and the preferred locations for intensive development could be undeveloped. Consequently the community benefits that are expected to arise from intensive development in well serviced locations may not be achieved. We accept in some centres the scale and height within an activity centre can be disregarded as a guide if it has been highly constrained due to the special character or features (such as heritage) of the centre, but we consider this is not the case in Mentone.
7. We conclude from the planning policy framework that this site should be developed intensively to provide apartments suitable for smaller households. We think the height and massing of a new building(s) on this site is to be primarily determined by a careful assessment of its particular context. We consider the preferred heights within the Mentone activity centre and elsewhere along the Nepean Highway are to be considered as a guide to appropriate heights in a middle ring suburb.

1. The review site is located on the southwest corner of the intersection of three main roads and a local residential street. The site is occupied by a single storey commercial building, being approximately four metres in height.
2. The intersection is significant in the southeast road network. At this intersection the Nepean Highway transitions from a wide "gun barrel" straight road to one that narrows and curves on its way to Frankston. Warrigal Road is a major metropolitan arterial road that transitions at this intersection from an arterial road, north of Nepean Highway to a lesser role south of the Highway. Balcombe Road is a higher order east-west road at this intersection. This intersection is an important "pinchpoint" through which regional and local traffic travels.
3. A robust three storey motel is located on the southeast side of Warrigal Road opposite the review site. South of the motel, the east side of Warrigal Road has a domestic suburban built form. We think except for the motel site, this area would see limited change
4. Land adjoining Balcombe Road to the west of the review site is occupied by a mix of single and double storey commercial buildings. As noted No. 15 Balcombe Road has a planning permit for a four storey residential apartment building. We think that in time this area will experience significant change to a taller, more intensive built form comprising two to four storey buildings.
5. Childers Street abuts the south boundary of the review site. The north side of Childers Street has an approximately four metre high sheer wall of the bowling alley. Further west are located single storey dwellings typical of many local residential streets in "middle Melbourne". The south side of Childers Street is occupied by a tennis club, a Catholic primary school and church. West of Rogers Street is the Mentone Primary School. No. 33-35 Childers Street abutting the west side of the review site is being developed for a four storey apartment building.
6. We think that notwithstanding the construction of the apartment building, there is likely to be limited change in Childers Street and it will retain a largely domestic residential built form complemented by the schools and church. We note that Childers Street carries a high traffic volume in the before and after school period and this traffic is a constraint on more intensive development in this street.
7. Mentone train station, cafes, shops and supermarkets are approximately 500 metres to the west of the site. This is a relatively convenient 7 minute walk along a generous footpath at flat grade
8. From the submissions, expert evidence and our site inspections we consider the following aspects of its context to guide the capacity of the site to accommodate intensive development:

• The site is large and relatively unconstrained.
• The site is at the intersection of roads of metropolitan significance.
• The width of Nepean highway can readily absorb tall buildings.
• It is within an area with a robust built form arising from proximity to major roads and emerging medium height buildings.
• The zone allows a mix of activities.

• Vehicular access and egress is constrained by road alignments and congestion in Childers Street.
• It is not immediately proximate to cafes, shops and services.
• It abuts a domestic scale precinct in Childers Street comprising low density and low rise built form, high levels of landscaping, adjacent schools, and streets requiring high levels of pedestrian safety.
• A new building needs to be carefully designed to ensure it is a good neighbour to apartment buildings at No. 35 Childers Street and No. 11 Balcombe Road.
• It is a highly visible site, so any large building needs to be well designed in the round.
• The public realm is harsh and needs substantial improvement to accommodate several hundred additional residents, staff and visitors.
• Building height is limited to comply with Moorabbin Airport operations.
• Taller buildings may overshadow nearby dwellings and public realm.
• Strong winds affect the amenity around tall buildings.

1. We think this site has three contexts that influence the appropriate built form. The first is the wide, impersonal and regional Nepean Highway against which a large building is entirely appropriate, indeed required if it is to be noticed. At a major road intersection where the character of the main roads transition, it is appropriate to mark that transition with a notable icon or building.
2. The site also has a robust local context, comprising existing commercial buildings, motel, busy collector roads, and emerging medium rise apartment buildings. This context also recognises its proximity to the Mentone major activity centre (with a direct visual connection along Balcombe Road) and policy directions that encourage intensive housing, including a taller built form.
3. The domestic residential built form on the east side of Warrigal Road, west end of Balcombe Road and Childers Street provides a third context. This domestic character calls for sensitive, low scale infill development.
4. We conclude the second context is the most relevant as the guide to the appropriate built form that can be inserted into this area. The planning policy framework does not identify this highway junction as a landmark or gateway. We think the site is located to one side of the direct views along the Nepean Highway and Warrigal Road, hence it is not so axially positioned to justify exceptional building height and massing. We agree that whilst it marks the end of one particular highway character, and the beginning of another, it is a prominent site, but not a gateway site. We think that it does not need to be "marked" by a very large building, and its place in the locality could be effectively identified by a building of moderate scale and height, as well as other iconic motifs such as sculptures.
5. We think the site is orientated to the three main roads and the robust interface to Balcombe Road. Its strategic designation for intensification and proximity to Mentone strongly invites significant intensification and a more intensive built form. The domestic residential interfaces to the north, west, and east are not its primary interfaces or context. It would be unreasonable to require new development to respond only to a low scale domestic context that derives from local side streets.
6. Whilst the site is somewhat constrained we agree on balance the physical context of the site supports an intensive development. We think the emerging four storey built form close to the site provides a context for a relatively tall building. The emerging four storey built form would screen and provide a transition between the single and double storey built form to the west and a taller building. A large building can be easily absorbed along the width and robust character of Nepean Highway. We think it is sufficiently close to Mentone to be within convenient proximity to its services and facilities. We think the domestic scale of Childers Street is an important constraint, but it is to the rear of the review site, and a quality design should ensure an appropriate transition and interface. Similarly, its interface to the development sites requires sensitive treatment, but their proximity is not a major constraint to an intensive development.

Does the proposed building adequately respond to its context?

1. The responsible authority, Mr McGauran, Mr Czarny and the respondents thought the development responds poorly to its context. Mr McGurn and Mr Holdsworth thought it to be acceptable with some further improvements, largely to the internal configuration of the ground floor rather than its external appearance.
2. Mr Cazarny opined the proposed building 'being a very wide and tall form, will appear as an alien insertion within a moderately scaled local context, even when considering potential infill and redevelopment opportunities'. He thought this proposal fails due to its inclusion of only a partial podium, its sheer walls on the northwest elevation, the limited separation of the towers and its height being substantially greater than any other building. He suggested a built form in the order of four to eight storeys would be a better fit.
3. Mr McGauran generally agreed with Mr Czarny. The Nepean Highway has a built form typology that comprises three to eight storey buildings, usually with interfaces to much smaller built form. He thought the gateway position of the site and the emerging taller development nearby supports a larger built form, but a building three times any other in this area would be out of character. He proposed reducing the height of the towers to nine and six storeys. He concluded that 'without this reduction in scale the development heights are excessive and respond poorly to its immediate physical context and its broader urban and strategic context'. He also opined that the site does not enjoy the proximity to adjacent communal facilities, nor is this site 'transport rich' (meaning public transport proximity)
4. On the other hand, Mr Holdsworth opined the 'building given its particular form has a high degree of compliance with (planning) design principles, particularly in terms of its response to its urban context, its landmark status and the architectural quality of the overall building'. He considered the large size of the site, its excellent northern exposure and the architectural quality of the design supports increased building height as long is it does not create adverse offsite amenity impacts.
5. When we consider the height, massing, design detail and materials of this proposed building we conclude it is too large and tall for its context. We think the combination of its height, the extensive width of the two towers that would be seen as one single building, and its robust materials and form, comprise a building that would have a scale and massing that would be substantially bigger than anything in the locality. Indeed we cannot think of another building of this mass and scale located a similar distance from Melbourne's central activity centre that is outside an activity centre. We think twelve and eight storeys, with a length of over 90 metres to be too high, too long and too imposing for a setting that takes its context mainly from a two to four storey character.
6. The size and materiality of the curved forms, the extent and materiality of the podium, and the distance between the two towers are important elements in how the building would be perceived. The extent of applied finish to sculptural concrete "solid" forms as opposed to more "lightweight" forms of the glazed/recessed areas, was criticised by parties. From our standpoint, this is a very "robust" area - and the solid materials would be appropriate. Regarding the partial podium, we agree with the applicant that the change in materiality of this feature is imaginative, and that a greater distinction between podium and tower is unnecessary. We also do not consider it necessary to extend a podium fully around the building, provided the public realm and landscaping around the building, and interfaces to adjoining sites are improved.
7. We think it is not logical that the separation of the towers needs to be seen from all angles. From several positions where cars stop at this intersection, the separation can be seen and is quite pronounced. However, we agree that from some views, there is no effective separation between the towers. Consequently, the north and south towers are seen as one building. This "one building" would be viewed as being exceptionally long compared with other buildings in the area. We consider this is primarily of concern when viewed from the west along Balcombe Road and from Childers Street where the form and massing of the building would be viewed from a lesser scale context.
8. The permit applicant invited us to be bold. We might be bold for a proposal that is sculptured and detailed to be an outstanding architectural statement for both the regional context on a site that commands through policy and context an iconic building. This building does not achieve these high qualities and its setting does not require such a response, and an improved response to its context is needed. In conjunction with our concerns with the proposed building setbacks to the public realm, internal amenity issues and access issues that we discuss in later sections, we conclude this building is unacceptable for its context.
9. We think a building that is lower, more sculptured and with less bulk (all to a limited extent) would be a better fit to both its strategic and built form context. Given that the acceptability of a building arises from the interplay of height, form, massing and materials, we think it unhelpful for us to prescribe an appropriate height for this site. However, in general terms we consider Mr McGauran's propositions should guide any redesign of this proposal, as they best encapsulate the site's physical and strategic context.

Would the development impose adverse amenity impacts on neighbours?

1. The responsible authority and respondents opined the development would have adverse impacts on its neighbours. The possible adverse impacts included additional traffic and parking, overlooking and overshadowing. Mr McGauran and Mr Czarny both were critical of possible impacts on the proposed dwellings at No. 33-35 Childers Street and any future residential development of No. 11 Balcombe Road.

Would the traffic and parking arrangements be satisfactory?

1. It is proposed that 284 car parking spaces be provided in three basements. The basements would be accessed via Balcombe Road at the northwest corner abutting No. 11 Balcombe Road. Access would also be provided to Childers Street via the approved access to the development at No. 33-35 Childers Street. Short term parking and drop off was to be provided in the service lane adjacent to Balcombe Road.
2. The respondents were particularly concerned the proposed traffic arrangements would severely affect traffic movement within the local streets. Vic Roads was also concerned the development would adversely affect traffic flows through the complex intersection of Nepean Highway, Balcombe Road and Warrigal Road.
3. A plan was provided to the hearing that showed alternate road alignments of the Nepean Highway/Warrigal Road/Balcombe Road intersection, and changes to Warrigal Road and Childers Street. The plan indicated changes to slip turns from Warrigal Road into Nepean Highway and Balcombe Road, line markings and extension of traffic islands in Warrigal Road and a splitter island in Childers Street.
4. VicRoads withdrew its objection to the development provided the modifications as shown were implemented as part of the development. The arrangements were acceptable to the permit applicant, (although some works were considered unnecessary by their traffic consultant).
5. One of the primary traffic concerns centres on changed traffic conditions and impacts affecting Childers Street. Respondents submitted this street and other local streets such as Rogers Street, Como Parade, Station Street and Mitchell Street experience considerable congestion at school drop off/pick up times. Parking and traffic congestion is also generated at other times by rail commuters and staff working in the activity centre.
6. The proposed development would generate 67 inward and 62 outward movements on Childers Street in the morning peak. Mr Turnbull estimated the development would generate an additional 47 inward and 37 outward movements in the school peak, and 74 inward and 78 outward movements in the afternoon commuter peak.
7. Mr Turnbull undertook an SIDRA analysis that indicates the Warrigal Road/Childers Street intersection would continue to operate satisfactorily. Mr Coath concurred that Childers Street would continue to operate satisfactorily. We note the continued operation would rely on traffic exiting from the development to Childers Street turning left from the site and travelling to Warrigal Road. This would be contrary to the existing traffic management arrangements which is a one-way movement in the westerly direction between 8:00am-9:00am and 3:00pm-4:00pm. We consider this arrangement would need to change to allow an exit from the site onto Childers Street allowing for an easterly exit from the site during these hours. Parking and drop off spaces on both sides of Childers Street would need to be removed where they are close to the exit of the building. The commuter evening peak would be well after the school peak and would have no adverse impact, at which time Childers Street would revert to two-way.
8. We share the concerns of residents of the impacts of putting a large number of additional vehicles on Childers Street at a time of high levels of vehicle and pedestrian movement. This concern reinforces our view that a more tempered building is needed that generates less traffic. We also consider that reasonable setbacks of the proposed building to both Childers Street and Warrigal Road are necessary to improve sightlines and safety in the area, given the large number of school children in the area.
9. We are particularly concerned with the access to the Balcombe Road service road that provides the drop off arrangements and northern access to the underground car park. We think vehicles seeking to complete a right hand turn from Warrigal Road into the service lane would be particularly vulnerable to rear-end accidents from through traffic. Vic Roads sought to extend a no turn limitation on Warrigal Road to south of Potts Street (on the east side). However, on further reflection, VicRoads further advised such a restriction would be unreasonable for traffic travelling northwest on Potts Street, as these residents had not been consulted, and have no alternate vehicular access to Nepean Highway. Mr Turnbull thought Warrigal Road would be sufficiently wide to allow cars to pass via the bicycle lane, however, we are not persuaded of the safety of this manoeuvre. We consider that with these doubts over the preferred access arrangements to Balcombe Road, access to the service road appears to us to be unresolved.
10. We also consider the access from the service road into Balcombe Road to also be problematic. Vehicles leaving the drop off area and the northwest egress, proposing to travel on Nepean Highway or north on Warrigal Road would be likely to complete a sharp right hand turn from the service road into Balcombe Road, close to the major intersection. This manoeuvre might be further encouraged by the lengthy queues on Balcombe Road caused by the train crossing at Mentone. These queues would discourage drivers from using Balcombe Road to connect to Nepean Highway via Charman Road. We think this manoeuvre appears to be relatively high risk as sightlines to on-coming traffic from the east may be poor.
11. Notwithstanding our concerns, traffic conditions have not been determinative in this matter. We accept the advice of Vic Roads and two expert traffic engineers that the additional traffic from this development would not generate unreasonable congestion or safety problems. However we consider a redesign process provides the opportunity to also improve the access and eggress arrangements. We think Childers Street should not be used as the primary access point for this development. It is sufficiently congested, heavily used by children, and additional traffic from this site should direct most of its traffic to the higher order roads.
12. We have no difficulty with the proposed provision of car and bicycle parking, although we concur with Mr McGauran the location of some of the bicycle parking can be improved.

Would the development positively contribute to the public realm?

1. It is proposed to set the podium back 1.7 metres from its title boundaries to Childers Street, two to four metres to Warrigal Road (to provide access ramps), and two metres to 3.7 metres to the northwest corner to also provide access ramps to the shops. Mr McGauran and Mr Czarny were particularly critical of the treatment of the public realm around the building. They opined narrow footpaths, lack of cycling parking spaces for visitors and limited landscaping would make the public realm around the building harsh and unattractive. They thought a more generous response is needed, particularly extensive canopy landscaping to mitigate the effects of the strong winds experienced regularly in this locality.
2. The urban design experts agreed the proposed redesign of the road layout and main forecourt entry of the building would provide opportunities for enhanced landscaping, wider footpaths and an attractive drop off area outside the building entry. Additional landscaping is particularly important to mitigate strong winds so public spaces would be safe and comfortable. Additional landscaping is also desirable to respond to the domestic context visible on Warrigal Road and Childers Street, and to comply with expectations that a residential building would include planting and vegetation at its entries and at the interface with the public realm.
3. We concur and think any proposal for this land should provide setbacks of at least five metres to Childers Street and Warrigal Road to allow canopy trees and medium sized vegetation to be planted. This would require the southeast corner of the proposed building to be set back to provide improved sight lines for pedestrians around this corner and therefore better pedestrian safety. Greater setbacks would also allow for the possible widening to the footpath to Warrigal Road. These changes would necessarily affect the carparking layouts to basements 1, 2, and 3. Likewise, the floor plans to the offices on ground level, and the apartments on levels 1, 2, and 3 would need to be altered.
4. We share the responsible authority's concern in relation to the footpath at this intersection, and that the proposed narrowing of the nature strip is a pedestrian safety concern. We agree with Mr Czarny's sentiments, when in reference to the proposed building at this corner he states 'the lack of street activity is likely to have a negative impact on the visual and social experience of the public realm, as well as perceptions of safety and comfort, particularly along Warrigal Road and Childers Street'.
5. A new proposal is an opportunity to properly address these matters.

Would the development provide satisfactory separation with adjoining and nearby dwellings?

1. The ground and lower levels of the proposed development would be located close to the title boundaries. The responsible authority and Mr McGauran were concerned with the interfaces particularly the four storey apartment building at No. 33-35 Childers Street and a possible multi level apartment buildings at No. 11-13 Balcombe Road.
2. No. 11-13 Balcombe Road has a width of approximately 11.5 metres and a depth of approximately 42 metres. Presently occupied by a single level commercial premises, it can reasonably be expected it will be developed for residential purposes, including a building in the order of 3 to 4 storeys. There is a planning permit issued by the Tribunal for a four storey mixed use development comprising 26 dwellings at No. 15 Balcombe Road. We should also consider the possibility that this site and No. 11 Balcombe Road could be amalgamated, enabling a much larger development.
3. At Balcombe Road the ground floor would be separated from the adjoining land by the 6.5 metre wide driveway to a depth of approximately 21 metres. South of the driveway, the development would be 3.3 metres from the western boundary. Apartments at the northwest corner of the building would be 2.72 metres from the western boundary, with balconies extending to within 2 metres of the boundary. The setback increases to 5.1 metres (4.4 metres to balconies) at the seventh floor.
4. This raises two concerns, firstly the visual bulk of seven levels within two metres of the boundary, and the reasonable separation between buildings to share development opportunities. In respect of the separation between habitable rooms and balconies, the planning scheme proposes nine metres to be sufficient separation between habitable rooms to provide reasonable privacy. If this is applied to this interface, development on No. 11-13 Balcombe Road would need to provide a setback in the order of 6.3 metres, with balconies extending into the setback area. This would be a severe impediment on the design of an apartment building on a site with a width of 11.5 metres. Mr McGauran proposed various solutions to create an improved interface. We do not prescribe any particular solution, but agree with his expert opinion that an improved interface is needed. Whatever the solution, we also consider addressing this matter would seriously impact on both the internal layout, and on the external sculptural form of this corner of the proposed building.
5. We also consider the close proximity of a dwelling to a twelve storey sheer wall to be unreasonable in this middle suburban context. This site is not within a central activities district or the like. It would be likely to create strong winds that would make outdoor areas unusable, and would create an overwhelming visual bulk. We consider the proposed setbacks to the western boundary to be unreasonable and think a more generous separation is necessary.
6. A 3.540 metre setback is provided from the offices to the adjacent residential development under development at No. 33-35 Childers Street. The key concern with this narrow interface is the proximity of habitable rooms and balconies. At levels 1 to 3 inclusive, the balconies of apartments 17, 43 and 69 would be unreasonably close to balconies and windows of the adjoining building. We think a more generous separation is required and habitable rooms and terraces rearranged to face north or south rather than west to the adjoining building.
7. Ms Tate resides at No. 27 Childers Street and was concerned that residents of the apartments on the higher floors could overlook her backyard. Her dwelling is one of a pair in a side-by-side arrangement, with a generous backyard.
8. Planning policy encourages developments to be designed to ensure that overlooking is minimised and is not unreasonable in an urban context. Standard B22 of clause 55 requires that screening be installed to windows and balconies where habitable rooms and secluded open space are within a horizontal distance of nine metres of the viewing place. Beyond nine metres, people may still be visible, but the separation is considered sufficient to consider the views non invasive.
9. Ms Tate's property is more than nine metres from the proposed development, and views into her backyard would be screened by the adjoining building at No. 33-35 Childers Street. We think this proposed development would not impose unreasonable overlooking of her dwelling.

Would the development provide satisfactory amenity for its future occupants?

Would the ground floor arrangement be satisfactory?

1. It is proposed to provide two retail premises, thirty-eight offices and an atrium on the ground floor. Access to the residential floors above would be via two lifts accessed from the central atrium.
2. We think the ground floor layout needs substantial review. The atrium area should be more generous, and the offices should have natural light and amenities for their exclusive use. The management of waste from the retail premises needs improvement. The permit applicant tabled at the hearing a revised layout of the ground floor. We think the modified arrangement addresses many of the shortcomings in the substituted plans. Whilst many of the improvements could be implemented through permit conditions and therefore have not been determinative in our decision to refuse this proposal, it adds weight to our view that this project requires further design effort.

Would the development provide adequate communal open space and amenities for residents?

1. The proposed development would provide an open courtyard and rain garden to the west side of the ground floor atrium and a gymnasium and outdoor communal space/communal garden at level 1. Residents and people working in the building would also have convenient access to two retail facilities and the services offered in the offices. Additional facilities such as cafes, shops, supermarkets and services would be reasonably proximate in the Mentone activity centre within a seven to ten minute walk.
2. We think the development fails to grasp further opportunities to enhance the amenity of residents and staff. These include the roof top adjacent to the lift core 2 on level 2, as well as the roof between the two towers on level 4. This is a large development, and it would not always be convenient for residents to visit Mentone activity centre for complementary amenities. It is therefore important this building optimise the potential for facilities to be available for the people who will work and live there. Again, this is a matter that is not determinative, but combined with the other shortcomings identified, it confirms our view that comprehensive revisions are needed.

1. Access to dwellings within the podium is via corridors that would be in excess of 110 metres in length. The corridors in the upper floors of each tower would be approximately 35 metres long.
2. We think they would be too narrow to comply with accessibility standards, would have no access to natural light and ventilation, and do not provide small recesses at each apartment's entry, allowing easy access when transferring furniture or the weekly shopping.
3. They need to be widened to a minimum 1.500 metres to meet accessibility requirements. We also consider that given the excessive length of these corridors, windows are needed at both ends of each corridor to provide acceptable natural light and ventilation
4. These changes would not be simple nor cosmetic. We think they would require substantial changes to the internal layout design. Overall yield is likely to be considerably affected, with consequential changes to car and bicycle parking. In addition to other matters, these changes cannot be managed through permit conditions, but need to be dealt with through a new proposal.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed and no permit be granted.

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