Mr John Cicero, Lawyer. Mr Cicero called evidence from Stuart McGurn, Town Planner

1 Peter Panoutsos and other residents of Segtoune Street and Windsor Street in East Kew have lodged an Application for Review[1] against the decision of the Boroondara City Council to grant a permit for a three storey office building with dispensation in car parking requirements (one car space) and vehicular access to a main road at 620 High Street in Kew.

2 Residents lodged objections on the basis of:

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Increased height of building

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Change in use of building

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Shadowing to residents to the east of the site

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Overall bulk and height

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Ingress/egress of vehicles

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Interim height control limitations

3 Fulcrum Town Planners and the responsible authority argued that the proposed development was similar in height and shape to that approved in a previous VCAT tribunal decision.[2] They claimed the proposed office use did not require a permit, car parking arrangements were similar to that previously approved, and where there were changes to the built form approved by the Tribunal these were of marginal improvement to the residential interface and of little consequence to the overall High Street streetscape.

4 The matters to be determined in this application are:

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Is the application consistent with previous tribunal decision?

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Is the proposal responsive to the State and Local Planning Policy and provisions of the Boroondara Planning Scheme?

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Is the means of access appropriate?

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Will the proposed development have an adverse affect on nearby residential properties by reason of building bulk and mass?

5 There were other issues raised during the hearing but I provided some guidance to Mr Panoutsos concerning the extent of the tribunal's ability to address matters beyond the scope of the ambit of discretion.

6 It is proposed to erect a three storey office building above a basement level carpark. The maximum height of the building will be RL62.9 to the parapets or RL63.4 to a lift overrun and a number of architectural elements, this equates generally to a height of about 11.6 metres although these heights increased in part due to the slope of the land.

7 The front of the building will be on the High Street road property abuttal and will extend to its southern boundary abutting an unconstructed right-of-way. The eastern boundary abuts a single storey brick building and will be set back more than 2 metres for most part of its abuttal, with the exception of a small services area in the south-eastern corner of the site.

8 There will be an extensive planter box erected along part of the northern boundary and a landscape buffer from the interface with what was previously a timber yard. There will also be a planting strip along the eastern boundary along with a 1.7 metre high acoustic timber fence.

9 Vehicular access will be to High Street via an existing service road.

10 45 car parking spaces will be provided on site, four of these will be provided in tandem.

11 The subject site is located on the southern side of High Street about 100 metres west of the intersection of Harp Road in Kew. It is within the southern end of the Harp Village Shopping Centre. The site is irregular in shape with an overall area of 1048 square metres. It has a frontage of about 20 metres to High Street and a boundary of about 21.4 metres. Topography of the land comprises of south-western facing slopes which dictates that the fall runs from a south-northerly to a southerly direction. There is an unconstructed right-of-way extending along the southern boundary.

12 Land to the south and east comprise rear yards of detached dwellings in Segtoune Street and medium density housing in Windsor Street.

13 Land to the north is the remnants of a timber yard although at the time of inspection this appeared to have new construction works.

14 Land to the south-west comprises brick shop buildings.

15 There is a small service road outside the subject site which provides a refuge for vehicles and car parking immediately south-west of the Harp Junction in Kew. This is one of the few sections of High Street which actually has a service road in front of it.

16 There is a tram line running along High Street with tram stops outside the site.

17 The subject site is zoned Business 2 under the Boroondara Planning Scheme. The relevant purposes of the zone encourage the development of offices.

18 A planning permit is required pursuant to Clause 34.02-1 to erect buildings and works in a Business 2 Zone, to seek access to a road in a Category 1 Road Zone under Clause 52.29 of the Planning Scheme, and for minor dispensation of one car parking space in the overall car parking facilities for the site under Clause 52.06-2 of the Planning Scheme.

19 There are various planning controls and policies of relevance which were referred to in detail in both Ms Fletcher's submission and Mr McGurn's evidence. In this case Clause 22.03 (Carparking) and Clause 22.08 (Office Use and Development) were the most relevant local policies in addition to the general provisions in Clause 65.01.

20 At the review hearing each party tabled and read from detailed written submissions and provided oral commentary. Mr McGurn provided a written expert report and also tabled a copy of the endorsed plan for permit PP03/01368 which was directed to be issued by Member Cimino in tribunal decision P2563/2004. I also received details of planning controls and policies, photographs of the subject site and neighbourhood and a copies of various plans and elevations.

21 Following the review hearing I undertook an inspection of the subject site and neighbourhood, and more particularly the interface area between residential and commercial zonings.

22 Mr Panoutsos raised concerns about the proposed office use and the excessive heights, and a need for assessment under the Council's Interim Height Controls. I advised the parties that the proposed office use was an as-of-right[3] use and that the Interim Height Controls recently introduced into the Boroondara Planning Scheme at the insistent of the council did not apply to this site.

23 Accordingly, any arguments about the merits or otherwise of the use and the requirements for a maximum building height under the Interim Height Controls were beyond the scope of the discretion contained within the Boroondara Planning Scheme.

24 I note the office use is expressly encouraged as one of the main purposes to the Business 2 Zone and therefore it is an appropriate use supported by the Local Planning Policy and the provisions of the Boroondara Planning Scheme.

25 Mr Panoutsos argued that the proposed building will be 550mm higher than the building approved by Member Cimino in Tribunal decision P2563/2004. In that decision Member Cimino considered the merits of a four storey building. He subsequently approved three storeys.

26 During the hearing Mr McGurn provided a comparison between the two buildings and tabled a copy of the endorsed plans for Permit No.PP03/01368. This exercise demonstrated that the proposed building is not higher than the development which was approved by Member Cimino and if anything, there are a number of changes which are of marginal benefit to the residential properties to the south and east of the subject site. Whilst there is a minor change to the front elevation of the building it will only marginally increase the office area on that interface. I am satisfied these changes are relatively minor and are consistent with Member Cimino's decision.

27 It is acknowledged that the plans that Mr Panoutsos had referred to appeared to be a variation of the original documentation considered by Member Cimino and the responsible authority before the final version of the plans were endorsed by the council. Whilst this is an unusual situation I am satisfied that the endorsed plans and the proposed height of the building before me are consistent.

28 The proposed development will have its sole vehicular entry to the service road in High Street. The applicants submitted a traffic engineering report to support the development which both the responsible authority and VicRoads accepted. There was some minor change to the layout of the car parking area to improve access, particularly to a handicap car space.

29 The vehicular access detail is similar to that approved by Member Cimino and I note in his previous decision he referred to three traffic engineers examining the access detail to High Street and raising no fundamental objection to it.

30 From my observation of this site the vehicular access to High Street via the service road is an eminently sensible and logical outcome. It would be far superior to any intention of seeking vehicular access via the unmade right-of-way to the rear which would traverse through the rear residential area. From both traffic safety and functional points of view it would seem to be the most sensible and logical place to have a vehicular access for this carpark.

31 Whilst not an issue raised by Mr Panoutsos I note there is a requirement to reduce the number of car parking spaces under Clause 52.06-1 from 46 to 45. This is an acceptable outcome which understandably the responsible authority supported. Providing close to 3.5 car parking spaces per 100 square metres of office area is a suitable outcome in this Business 2 Zone and I note the site has excellent access to public transport and more particularly the tram facility and a tram stop outside the site in High Street. This minor variation to the standard car parking requirement is quite acceptable.

32 Mr Panoutsos and other residents were concerned about overshadowing from the proposed building and the visual bulk and massing culminating in a mass of sky view. This development has similar proportions to that approved by Member Cimino. There will be a 6.2 metre high wall on the rear boundary abutting the unconstructed right-of-way. This right-of-way provides a suitable separation distance between the open space areas of the properties at 5, 7 and 9 Segtoune Street and the 6.2 metre high wall. The setback distance, was not required to meet Rescode standards but would meet them. Similarly the eastern interface is ameliorated by the stepping back of the building off its eastern boundary and the placement of planting areas along the boundary.

33 The proposed building will change the outlook from various back yards of properties in Segtoune Street however this is an acceptable outcome on a Business 2/Residential 1 interface. Whilst this may not necessarily be an acceptable outcome in a normal Residential 1 situation persons living on this interface should expect a higher built form. As Memo Cimino said in paragraph 51of the previous decision:

51 In Keghlan Pty Ltd v Mornington Peninsula Shire Council [2000] VCAT 2538, Member Moles gave the following guidance:

With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning. It has been said, for example, that dwelling owners/occupants if they occupy premises at the interface with a commercial or industrial zone, cannot expect to enjoy the same level of residential amenity as persons occupying residential properties more remote from the interface. Similarly, the Tribunal has said that persons operating businesses at the edge of a commercial zone must expect to have constraints imposed on their activities or development in recognition of the need to maintain the amenity of an abutting residential zone (or open space area), which constraints would not apply in other more central parts of the commercial zone.

34 I consider this development represents a reasonable planning outcome which is to be expected on a residential/business interface area in a suburb such as Kew.

35 The evidence of Mr McGurn, and confirmed by his shadow diagram, shows there will be little, if any, difference to shadowing compared to the previous approved building and possibly a minor reduction to the east. Whilst the development is not required to comply with the Rescode standard it does meet it and ensures that a reasonable amount of sunlight will reach the primary open space of nearby residential properties. It is acknowledged that there will be some loss of shadowing particularly to the east in the period after 3pm but that is consequent of having an abuttal with commercially zoned land. Overall, what increase in overshadowing is acceptable in this site context.

36 Mr Panoutsos sought a slightly higher timber fence alongside No.7 Windsor Street. I do not necessarily believe there is a need for a higher fence because matters such as overlooking have been addressed through other screening measures. However, if the applicants and the owners of the subject property come to amicable agreement I see no reason why fence heights on this interface cannot be increased under normal negotiations under the Fencing Act.

37 Planter boxes have been modified to provide opportunities for maintenance and I would expect the applicants themselves will need to deal with drainage and irrigation to ensure their long term maintenance. These are matters which can be addressed by the applicant.

38 Similarly, Mr Panoutsos' concerns about no water saving measures were addressed when Mr Cicero advised that these matters are now addressed under the Building Code of Australia.

39 For the abovementioned reasons the responsible authority's decision is affirmed. Its decision is consistent with the previous findings of Tribunal Member Cimino and its decision seemed sound and reasonable. I consider the proposed development is consistent with State and Local Planning Policies including the purposes of the Business 2 Zone and it is an acceptable planning outcome. Accordingly, a permit shall issue in accordance with the conditions imposed on the Notice of Decision.

[1] Pursuant to Section 80 of the Planning and Environment Act 1987

[2] See Neltan Pty Ltd v Boroondara City Council an C Panoutsos and Ors VCAT Ref P2563/2004

[3] Section 1 use in Clause 34.02-1 of the Boroondara Planning Scheme