J & M Medhurst; J Atchison; M Harrod; A Cleeve; M Daley.

Pearl Diamond Pty Ltd v Stonnington CC [2010] VCAT 1796

1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Adam Cleeve and Ms Mary Daley are joined as parties to the proceeding.
2. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended by :
   • (a) substituting 'Pearl Diamond Pty Ltd' for the applicant; and
   • (b) substituting the following plans for the application plans

TP00 Title Page and Location Plan; TP01 Rev C Site + Neighbourhood Streetscape; TP02 Rev C Site + Neighbourhood Streetscape; TP03 Rev C Design Response; TP04 Rev C Shadow Diagrams September 22nd; TP05 Rev C Basement 2 Floorplan; TP06 Rev C Basement 1 Floorplan; TP07 Rev C Ground Floor Plan; TP08 Rev C Level 1 Floorplan; TP09 Rev C Level 2 Floor Plan; TP10 Rev C Level 3 Floor Plan; TP11 Rev C Roof Plan; TP12 Rev C Elevations Page 1; TP13 Rev C Elevations Page 2; TP14 Rev C Elevations Page 3; TP15 Rev C Elevations Page 4; TP16 Rev C Carpark Section; TP17 Rev A Apartment Layouts; TP18 Rev A Perspective; TP19 Rev A Typical Screen Detail prepared by Daryl Pelchen Architects Pty Ltd.

1. The decision of the Responsible Authority is affirmed. In Planning Application No. 0372/09, no permit is granted.

• Mr Daryl Pelchen, Architect of Daryl Pelchen Architects.
• Mr Chris Butler, Traffic Engineer of Cardno Grogan Richards.
• Mr Robert Kelderman, Town Planner of Contour Consultants Australia.

Mr Daniel Bowden of Daniel Bowden Town Planning (29 & 30 March 2010).

Mr Andrew Natoli, Solicitor of Planning & Property Partners Pty Ltd (6 September 2010).

Construction of a four-storey (plus basements) mixed use building and five, two-storey townhouses. Following is a summary of the proposal:

• A retail/office area, convenience shop and food & drink premises (cafe) at the ground floor level.
• A total of 25 dwellings on the three levels above. Private open space in the form of balconies.
• Two basements accommodating 48 car spaces, 16 bicycle parking spaces and 26 storage compartments.
• Access to the car parking area from Oak Grove.
• Construction, in part, to the east, south and west property boundaries.

• Ground level kitchen/living/dining areas. Two bedrooms at the first floor level.
• Construction to the eastern property boundary; a setback of 3.7 metres from the northern boundary and a 5.0 metre setback from the western boundary.
• An overall height of 6.3 metres.
• Private open space in the form of courtyards on the northern side of the dwellings.

Section 79 Planning and Environment Act 1987.

cl 34.02-1 (use of the land in the Business 2 zone for retail/office and dwellings).

cl 34.02-4 (construction of buildings and works on land within the Business 2 zone).

cl 32.01-1 (use of the land in the Residential 1 zone for convenience shop and food & drink premises (cafe)).

cl 32.01-4 (construction of two or more dwellings on land within the Residential 1 zone).

cl 32.01-6 (construction of buildings and works associated with a Section 2 use on land within the Residential 1 zone).

cl 43.01-1 (demolition and construction of buildings and works on land within a Heritage Overlay).

cl 52.06-1 (reduction of the car parking requirement).

The review site is located on the north-east corner of Waverley Road and Oak Grove in Malvern East, at the western edge of a Neighbourhood Activity Centre. The property is comprised of four lots and has an overall area of 1319 square metres. A frontage of 43.28 metres and a sideage of 30.18 metres are presented to Waverley Road and Oak Grove, respectively. A service station occupies the land. To the east is a single storey shopfront with a dwelling component at the rear. To the north is a residential property with frontage to Oak Grove. This site supports a single storey dwelling.

To the west, on the opposite site of Oak Grove are two single storey dwellings. To the south are commercial/retail premises of both a single and two-storey scale. Waverley Road supports a tram route.

An inspection of the site and surrounds was undertaken after the hearing.

1. An application was made to the Stonnington City Council for a permit to construct a development comprised of a four-storey mixed use building, incorporating a basement car park, and five, two-storey townhouses. The Council failed to determine the application within the prescribed time period.
2. The Applicant has applied to the Tribunal for a review of the Council's failure to grant a permit.
3. Since the lodgement of the Application for Review, the Council considered the application and resolved to deny its support on a number of grounds relating to heritage, neighbourhood character, inadequate internal amenity, impacts on the amenity of adjoining land, inappropriate signage, absence of loading facilities and overdevelopment. Residents oppose the grant of a permit on similar grounds, with additional concerns raised in respect of car parking, waste collection and traffic impacts.
4. Having regard to the submissions and evidence of the parties, the policies and provisions of the Stonnington Planning Scheme and the context of the review site, we must decide whether the proposal represents an acceptable planning outcome.
5. Subsequent to Day 2 of the hearing, during its consideration of the Application, the Tribunal identified an issue regarding the lawfulness or otherwise of the proposed retail/office use as it uses land within the Residential 1 Zone for vehicle access. By Order dated 8 July 2010 the Tribunal invited the parties to make written submissions responding to the issue of whether the retail/office use is prohibited. Submissions were received from a number of parties. The Tribunal was reconstituted to include Senior Member Rickards, a legally qualified member. A further hearing was held on 6 September 2010 to hear submissions on this issue.
6. This question of the lawfulness of the proposed retail/office use has been determined by the Senior Member. Her finding is that the retail/office use is prohibited. A separate Order detailing the reasons for this finding has been made[2]. This is the sole issue considered and determined by the Senior Member. The Tribunal's findings on all other matters are made by Members Sibonis and Keddie.
7. Based on the finding that the proposed retail/office use is prohibited, a permit cannot be granted for the proposal in its current form.
8. On the third day of the hearing, the Applicant advised that, should the Tribunal find that the retail/office use is prohibited, an amendment to the application is sought to replace this use with a medical centre and dwellings.
9. We have considered the Applicant's request to amend the application at this late stage of the review process. We have concluded that the proposed change to the land use composition of the development should form part of a new planning application. That would allow both the Council and the community to properly consider the proposed medical centre use in particular, including its operational impacts. All the submissions and evidence have been made on the basis of the proposed land uses being dwellings, food & drink premises (cafe), convenience store and retail/office. A medical centre use has not been addressed. Its operational characteristics may be quite different from those of the retail/office use, and neither the Council nor the residents have had the opportunity to comment on this use. In our view, to allow the requested amendment to be made would potentially complicate and protract the review process as it would necessitate notice being given, and, we suspect, may require a further hearing to enable submissions and evidence to be presented.
10. While we are unable to grant a permit, and must affirm the Council's decision, we consider it would be helpful to the parties if we set out our findings in respect of the proposed built form, the amenity impacts, and on-site amenity. Our comments and findings on these matters can then be considered as part of any new proposal for the development and use of the review site.
11. We think it is fair to say that it was common ground amongst the parties that the redevelopment of the land for commercial and residential purposes, (including higher density housing) is consistent with the State and Local Planning Policies[3] which promote development in and around activity centres. We are satisfied that the proposal facilitates the implementation of these policies at the local level. On this basis, we will not undertake a detailed analysis against the urban consolidation policies of the Planning Scheme.

Is the development an acceptable response to the streetscape, neighbourhood character and local heritage values?

1. State planning policy promotes development that makes a positive contribution to its context (including respecting the local character and identified heritage values) and which enhances the public realm[4].
2. These policy themes are reflected in the Urban Design Policy[5] which has an objective of ensuring that 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. Relevantly, it is policy that:
   • new buildings are not significantly higher or lower than surrounding buildings and that parts of buildings over two-storeys are set back behind the facade to minimise impacts on the streetscape;
   • development is of a height and scale that is consistent with its particular setting and location and that it generally respects the one to two-storey built form character of the municipality's residential areas and most commercial and industrial areas.
3. In instances where the height and scale of a building are inconsistent with its setting and location, the applicant is to demonstrate satisfactorily that:
   • The building does not abut a heritage place.
   • Portions of the building over two-storeys are set back from the frontage to maintain the streetscape.
   • The upper levels are to be used for residential purposes.
   • The building has been designed to complement the character of the area.
   • The building will not adversely affect the amenity of adjoining residential properties through overlooking, overshadowing or traffic and parking associated with the use.
4. Given the site's location within a Heritage Overlay, the Heritage Policy at Clause 22.04 is also relevant to the assessment of the proposal. An objective of the policy is that places of recognised historic significance are conserved and enhanced, and that replacement buildings are sympathetic to the heritage area and/or its surrounds. It is policy that consideration is given to the impacts of a proposal on local heritage values, and that new buildings are compatible with the characteristics of the heritage place and are undertaken in accordance with guidelines prepared by the Responsible Authority.
5. We were referred to the Heritage Guidelines City of Stonnington 2002. These are a reference document to Clause 22.04. In addressing 'commercial infill', the Guidelines state that new works in commercial areas should generally adhere to the guidelines discussed for residential buildings. These include adopting the scale, massing, setbacks and general form of dwellings in the area, and using materials that reflect those found elsewhere in the precinct. The Guidelines state that architectural elements such as roof forms and fenestration must complement those in the locality without reproducing historic detailing.
6. We have not found these Guidelines useful. In our view, not only are they confusing in referring to 'existing dwellings in the area', which is not relevant when assessing proposals within commercial centres, but they add little to the objectives and policy statements contained within the policies of the Planning Scheme.
7. The Planning Scheme directs us to ensuring that development is appropriate to its heritage context. In making this assessment, we think it appropriate to refer to the relevant Statement of Significance, as this assists in understanding what it is about the area that contributes to its heritage significance. Council's submission included the following Statement of Significance for the Waverley Road activity centre:

The Waverley Road shopping centre is of regional significance as a representative, largely intact commercial shopping precinct focussed on the end of a tram line. Its development is illustrative of the interdependence of public transport and suburban development as part of Melbourne's development, especially in the late Federation and interwar periods. The nexus between tram, shopping precinct and dormitory suburb was clearly of significance to the development of the surrounding area. The high proportion of original and early shopfronts found in extant building stock greatly enhances that significance.

1. It is noteworthy that, aside from the shopfronts, the above Statement does not ascribe any significance to the actual siting, form, scale or typology of the buildings that comprise the centre. Its significance is derived from its association with the tram terminus and its reflection of the relationship between early suburban development and the availability of public transport. On this basis we consider that there exists greater flexibility in the adopted form and siting of infill development than would be the case if the existing buildings were identified as the reason for the centre's heritage significance.
2. That is not to say that the appearance, scale and siting of the proposed building is not important. It is, and it must respond in a respectful and positive manner to its context. Notably, a strategy of Clause 11.04-2 is to encourage higher density housing in and around Neighbourhood Activity Centres that is designed to fit in the context and enhances the character of the area.
3. On any site which is substantially larger than those adjacent to it, the scale and massing of a proposal becomes an important contextual issue. The Neighbourhood Activity Centre of Waverley Road displays a number of relevant characteristics- the generally one to two storey built form is hard on the street edge, shop fronts share a similar 'grain' and most have awnings over the footpath. The proposal needs to be considered against the urban design principles at Clause 15.01-2, which aim to achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties
4. In addition, Clause 15.01-2 refers to the Design Guidelines for Higher Density Residential Development [sic] (Department of Sustainability and Environment, 2004) which, amongst other things, seek to ensure that visual impacts to dwellings at the rear are appropriate in the context.
5. Mr Bowden asserted that the proposed four-storey height is inconsistent with the prevailing two- storey height which forms the existing character of the centre, and that the largely unarticulated east and west walls would present dominant features when approaching the building along Waverley Road from both the east and the west. He noted the constraint imposed by the site's prominence from the western approach, and the lower form adjacent to it. Council considers that 'the setback of the upper levels from the street frontage are insufficient to effectively integrate the development into the streetscape'.
6. In contrast, Mr Kelderman's expert opinion was that the front façade along Waverley Road is in keeping with the prevailing parapet height of development along the north side of Waverley Road and that the two upper levels are sufficiently set back (3.01metres) to minimize their impact on the streetscape. He further considered that the extensive use of glass, the proposed timber balustrades to the southern balconies together with the canopy details at ground and first floor levels, all assist to accentuate the recessiveness of the upper two floors.
7. We observe that this proposition, along with the vertical elements which successively serve to reflect the grain of the existing shopfronts, is well demonstrated by the architect's perspective drawing TP 18. However, the rendering of the elevation in TP12 and the position 1 photomontage tell a different story. Rather than the façade of the upper two levels being a modulated and deeply articulated structure, it appears as a monolithic glazed box, reflecting the changing patterns of the sky.
8. We have considered the proposal put to us by Mr Morris at the hearing that eroding the eastern end of the fourth level would serve to soften the transition to the existing adjacent buildings. However, we remain unconvinced. Our principal concern relates to the impact of the building when viewed as one approaches from the west where the residential context at Oak Grove is largely single storey. Our conclusion is that the upper levels of apartments 16-20 should be deleted, and the remainder of the fourth storey be set back to align with the southern side of the western stair enclosure. We note that this would serve not only to diminish the mass of the building overall, but that it could also improve the amenity of apartments 11-15 as it would allow an increase in the size of their northern balconies, and in the provision of natural light to the bedrooms.
9. Although not a determinant in our conclusion, the substantial increase in setback of Level 3 from Waverley Road would also reduce the impact of the east wall when viewed travelling west from the east into something more in line with the blank walls already experienced in the centre.
10. In regard to the timber clad stairwell, the central courtyard and the two storey townhouses, we consider their impact on Oak Grove to be acceptable. We find that the stairwell is an appropriate device to mark the change from a commercial to a residential area. The modest two storey massing of the townhouses, coupled with the landscaped setback and selected materials results in a comfortable contemporary 'fit' with the residential neighbourhood beyond.
11. Council's policies also require that the proposal be compatible with the characteristics of the heritage place. As noted above, we found the Heritage Guidelines City of Stonnington 2002 unhelpful in our consideration of the proposed built form, as the statement of significance for the Waverley Road activity centre relates to its association with the suburban development which followed the introduction of the tram line. We can only conclude that it is the interaction with the somewhat disparate built form which has developed over time in the centre which should be considered in any heritage assessment.
12. In our view, the proposed development, if amended to delete Apartments 16-20 as referred to earlier, would not be dominant and thus would not detract from any heritage values of the precinct, and certainly not from those articulated in the statement of significance. The street level fenestration reflects that of the adjoining shopfronts, there is a canopy over the footpath, and the oblique views of the (reduced) east and west side walls will not dominate the precinct, nor offend its heritage values.
13. We acknowledge the suitability of the proposed landscaping of the central courtyard area and street frontage, and the potential of this landscaping to enhance the development.
14. Council was concerned that the proposed graphics on the south elevation of the building were inappropriate in the context of the low-key Neighbourhood Activity Centre. The Applicant contended that they were integral to the building as a identifying element. We consider that is a matter which can be resolved between the Applicant and the Council.

Are the impacts on the amenity of adjoining land reasonable?

1. We are satisfied that the development would not have unreasonable impacts on the amenity of adjoining properties.
2. The residential property to the north has a driveway, carport and large outbuilding adjoining the review site. These do not represent sensitive interfaces. The townhouses are two-storeys in height and are set back some 3.7 metres from the common boundary. In combination with the width of the intervening outbuilding, this provides a separation of 7 metres between the secluded private open space area of this dwelling and the nearest townhouse. In our view, this is more than sufficient to minimise the visual bulk presented to this space. The proposed four-storey building is set back in excess of 18 metres from this rear yard space. Again, we consider this adequate to avoid unreasonable visual bulk to this area.
3. The development proposes the construction of a two-storey wall on the eastern property boundary. This wall, in part, abuts the courtyard space of the adjoining dwelling that is situated at the rear of the neighbouring shopfront. Boundary walls, indeed boundary walls of a two-storey height, are not uncommon in strip shopping centres such as this. We agree with Mr Kelderman that this proposed wall is a reasonable outcome within a Business 2 zone. The adjoining courtyard maintains an open aspect to the north and east, and will not suffer a sense of enclosure as a consequence of this wall. Provided it is finished in an attractive manner, we believe that the wall can actually contribute to the amenity of this open space by creating a backdrop for planting and by shielding the courtyard from the west to provide greater visual and acoustic privacy to this area.
4. Overshadowing impacts are confined to the afternoon period when townhouse 5 will cast shadow on the open space area to the east. Mr Kelderman's evidence was that the extent of overshadowing achieved almost full compliance with Standard B21 at Clause 55.04-5 (this notwithstanding that Clause 55 does not strictly apply to developments in the Business 2 zone, but is referred to in the decision guidelines of Clause 34.02-4 as a matter to be taken into consideration, if appropriate). He stated that the non-compliance occurred at 2.00pm, and was minimal in its extent. We agree that this outcome is acceptable within the context of land in a Business zone and will not unduly compromise the amenity of this area.
5. The dwelling to the north has a south facing window with an outlook toward the subject site. The proposed 6.8 metre distance between the development and this window is sufficient to ensure that daylight to the window is maintained. In this respect we note that Standard B19 at Clause 55.04-3 would require a minimum separation of 3.15 metres between the northern wall of the townhouses and the neighbouring window to allow adequate daylight into this window.
6. The elevations show the provision of 'selected opaque glazing to 1700mm above FFL' to the first floor north facing windows of the townhouses. This treatment will prevent overlooking of the adjoining residential property to the north. It is unclear from the plans whether that part of the window with the obscured glazing will be openable. If this were to be the case then the efficacy of this screening measure would be reduced. We consider that the windows should be fitted with fixed obscured glazing or other suitable screening device to a minimum height of 1700mm above finished floor level. That part of the window above this height may be openable to allow for ventilation.
7. As noted, the north facing windows and balconies of the four-storey building are set back in excess of 18 metres from the northern boundary. Using Standard B22 at Clause 55.04-5 as a guide[6], we consider this distance will act to limit overlooking of the neighbouring property and screening of these elements is not warranted. This is also the case in respect of the separation between the development and the residential property to the west, on the opposite side of Oak Grove, which is well in excess of the 9.0 metres specified in Standard B22.
8. We agree with Mr Kelderman that the proposed screening on the north elevation is not required and should be removed to improve the amenity of the dwellings within the development. However, in view of the multiple uses of balconies, for example as storage and drying areas, we consider that the balustrading should be opaque/solid.

Will a reasonable level of on-site amenity be provided for occupants?

1. The principal concerns we have in relation to on-site amenity are the size of the balconies; the reliance on borrowed light; the location of the waste storage areas; and the sense of address for the townhouses.
2. The single bedroom dwellings are proposed to be provided with 6.1 square metre balconies with a width of 1.25 metres. The Applicant's justification for this size and dimension is the relatively small size of the dwellings. Our attention was also drawn to what was referred to as a 'zero threshold' whereby the balcony effectively becomes an extension of the living area once the doors are opened. We are not persuaded that the overall size and width of these balconies is satisfactory. The 1.25 metre width significantly constrains the ability to place any furniture or other elements on the balcony and, when the central doors are open, the balcony is effectively separated into two small sections of 1.25 metres by 2.2 metres, further restricting its useability.
3. We consider that the functionality of the balconies should be enhanced by providing a minimum 1.6 metre width, and minimum area of 8 square metres. In addition, the 'french-door' arrangement could be replaced with a sliding door unit. In order to accommodate this increase in the balcony size, we consider that the south facing apartments on Level 2 could have a marginally reduced setback to Waverley Road.
4. At the hearing, the issue of borrowed light was discussed at some length. Council expressed concern at the limited daylight access to many of the bedrooms. Borrowed light is a feature of the w.c/laundries on the ground floor of the townhouses, and of the bedrooms and bathrooms of apartments 2-10, 12-19, and 21-25. The design proposes that natural light will be obtained through the provision of obscure glazing to the upper 25% of the wall of cupboards separating the living rooms from the bedrooms, supplemented by full height narrow vertical panels between the rooms.
5. Mr Kelderman's assessment was that borrowed light to single bedroom apartments is not uncommon within multi level developments, particularly where the adjacent living room windows are full height and meaningful daylight can be obtained from this source. He suggested that the installation of a skylight to top floor bedrooms facing the internal hallway would improve the natural light available to them, and that the highlight windows to the hall and the hall skylights could then be deleted.
6. The Tribunal inspected an example of the type of glazing proposed. We note that all but four of the bedrooms are within 6 metres of a fully glazed northern façade and are also designed to have operable side walls for daytime use. We find that the proposed glazing, though not optimal, is acceptable. In relation to Mr. Kelderman's suggestion, we prefer the original proposal where the highlight windows to the bedrooms have access to a hallway which is almost fully top-lit. In any event, the reduced size of the top level would result in further options for natural light to these bedrooms becoming available.
7. The waste storage area for the four-storey building is located on the northern side of this building, adjacent to the central courtyard space that separates this development from the townhouses. We are not satisfied that this siting is acceptable having regard to the potential amenity impacts of this storage area on the courtyard and on the balconies that overhang above.
8. In our view, this waste storage area is more appropriately located internally to the apartment building and have concluded that it should be positioned adjacent to the bin storage area provided for the townhouses. The resultant space could be mechanically ventilated. It could be accessed both externally by provision of a door that connects to either the bin storage area for the townhouses or to the courtyard, or by a door that provides connection to the internal stair. This will remove the bin storage area from view and eliminate any concerns regarding the impacts of odours on the amenity of the courtyard or dwellings. It will also allow for an appropriate finish to this section of the ground level wall to enhance the visual amenity of the courtyard.
9. While we accept that the central courtyard area, subject to appropriate material selection and landscaping, can provide an attractive address for the townhouses, we are concerned that the dwellings themselves have been designed to prevent any visual interaction with this space. The dwellings' ground level interface with the courtyard space is defined by recessed entries and blank walls. There has been no attempt to provide for any degree of surveillance of this space from within the dwellings, or to provide the opportunity for visual interaction between the interior of the dwelling and this communal area. This is also the case at the upper floor level where the sole window with an outlook to the south is a high sill window of a bedroom. The townhouses have the appearance of 'turning their back' on this adjoining space, rather than responding to it in a form or manner that gives recognition to it as their address.
10. In our view, at the very least, a floor-to-ceiling window should be located at right angles to the front doors to allow south light from the central courtyard into the entry corridors of the townhouses and to provide a potential view of internal movement. We consider that such an arrangement will enhance the amenity of the dwellings and the courtyard.

1. As the proposed retail/office use is prohibited, we do not propose to make any finding in respect of the adequacy or otherwise of the proposed car parking provision for the development, as it will alter as part of any new proposal. This similarly applies to the traffic impacts, and the issue of whether a loading bay should be provided on the land. These matters will vary according to the nature and 'intensity' of the proposed uses.
2. The preservation of the existing street trees in Oak Grove was the primary landscaping matter at issue in the hearing. All parties agreed that this was an important issue as the oak trees are a fundamental determinant of the character of the neighbourhood. We can see no reason why the west wall of the two basement levels should not be taken back to the ground floor building line in order to reduce the potential for disturbance to the root zone of the adjacent mature oak.

1. On the basis that the proposed retail/office use is prohibited, and our determination not to allow an amendment to the application to address this issue, we will affirm the Council's decision. A permit is not granted.

[1] We have considered all submissions and accompanying material, assisted by our inspection. We do not recite all of the material presented as all documentation is retained in the Tribunal's file.

[2] Refer to the Order dated 11 October 2010.

[3] Clauses 11.01, 11.04, 17.01, 21.01-2, 21.03. Amendment VC71 which affects the State Planning Policy Framework (SPPF) was gazetted after the hearing of this matter. Although the amendment was not the subject of submissions at the hearing, we are now required to consider the SPPF in its now revised form. In doing so we note that the revised SPPF is a policy neutral translation of the pre-existing SPPF policies with new themes, a new structure and updated references to various documents. These changes do not alter the substantive issues for consideration in this case.

[6] A design suggestion of Objective 2.9 of the Guidelines for Higher Density Residential Development is that existing dwellings should be protected from potential overlooking in accordance with Clause 55 of planning schemes.