30 The Council was also concerned about the proposal's failure to comply with Standard B17 of Clause 55 (Side and Rear Setbacks) and B19 (Daylight to existing windows). Although it was acknowledged that Clause 55 does not apply to this application, it was Mr Scally's submission that the objectives and standards of this Clause do provide a useful reference point against which the proposal's impact on the amenity of adjoining properties can be assessed. It was his submission that compliance with B17 and B19 would lead to a design which would be more respectful of the residential amenity of 176 Victoria Ave.
31 Mr Scally also submitted that the amended plans which had been circulated by the applicant prior to the hearing had largely resolved car parking issues to the Council's satisfaction, except that it considered that five visitor parking spaces ought to be provided on site and that parking also ought to be provided for the operators of the convenience shop. Mr Scally acknowledged that this is a matter which could be dealt with by way of permit conditions and that a car stacker could be incorporated into the design to accommodate additional parking. Alternatively, additional parking would not be required in the event that units 16 and 22 are deleted.
32 Several of the objectors broadly supported the Council's position that the proposal fails to appropriately respond to its neighbourhood context and that, in general terms, the building is too high. Some objectors were supportive of the changes to the design recommended by the Council, while others submitted that the removal of an entire level or a reduction in height consistent with the preferred maximum height in the DDO5-2 would represent a more appropriate response to the low rise character of Albert Park.
33 Concerns were also expressed about the proposed provision of car parking and criticisms were levelled at the empirical evidence supplied on behalf of the applicant and upon which the proposed reduction in parking was sought to be justified.
34 Specific concerns were raised by those objectors who have a direct abuttal with the review site. Mr Easton, who appeared for those objectors who reside to the rear of the site, submitted that the visual impact of the proposed building on the rear open space of his client's properties is unacceptable. In additional it was submitted that the use of Beaconsfield Lane for vehicular access to the proposed basement car park would lead to adverse amenity impacts on existing residents who abut the lane, and to congestion and access difficulties in the lane.
35 Mr Kusznirczuk who represented the owners of 176 Victoria Ave, and the residents of that building who also appeared, submitted that the interface with the building at 176 Victoria Ave has been poorly resolved and that the proposed building will have adverse amenity impacts on the residents of that building as a consequence of excessive visual bulk, overshadowing and loss of daylight. Mr Kusznirczuk submitted that proposed unit 16 which abuts Beaconsfield Lane and has an interface with the rear of 176 Victoria Ave, ought to be deleted. It was further submitted that it is reasonable to apply Standard B17 and that as a consequence units 10 and 17 which directly abut habitable room windows in 176 Victoria Ave would need to be deleted to achieve an acceptable outcome. Mr Kusznirczuk submitted that the necessity for these changes highlight that the proposal represents an attempt to overdevelop the site and that the preferable solution is to remove the third level of the building and to reconfigure it as a whole, rather than "tinker" with the existing design.
36 Ms Tipping who resides in one of the flats at 84 Beaconsfield Parade raised concerns about the proposal's interface with that building, and in particular submitted that an inadequate setback had been provided which would lead to visual bulk, overlooking and overshadowing impacts.
37 The submissions made by the Council and the objectors can be grouped into two main categories which we will deal with separately.
38 The first category we will call policy level considerations and to a large extent issues which fall under this category necessitate an assessment of whether the proposal successfully responds to, or whether it ought to be required to respond to, the one and two storey scale of the Albert Park neighbourhood.
39 The second category of considerations are those which relate to the detailed aspects of the design and in particular its treatment of the site's immediate interfaces.
40 We will deal with the policy level considerations first.
41 As we have detailed above, there is considerable support in the local policy framework for the proposition that a development of this site ought to incorporate a transition in height from the lower scale development of the Albert Park neighbourhood. There was really no dispute between the parties with respect to the policy encouragement given to the desirability of achieving a transition in height, however it was Mr Canavan's submission that what is currently proposed achieves an appropriate transition and is entirely consistent with the outcomes sought by the planning scheme. In his submission, the changes recommended by the Council amount to little more than requiring changes for the sake of requiring changes and are not warranted in terms of achieving an appropriate built form outcome for the site.
42 We are inclined to agree with this submission and we have not been persuaded that the reduction in the overall height of the building or the stepping of height at the edges sought by the Council and several objectors, leads to a superior design response to that currently proposed.
43 In arriving at our conclusions on this matter, we have been influenced by a number of considerations. Importantly, we think that the design is a carefully constructed architectural response to its site context. The term "design excellence" was used extensively by various parties throughout the hearing either as a description of the proposed building or as a reference to something which ought to be strived for on this site. It is a term which appears regularly in the planning scheme. The notion of design excellence is a difficult concept to grapple with, often because any consideration of the design of a building can tend to be influenced by individual taste or preference. From our perspective however, the consideration of design excellence must be focussed entirely on those matters encompassed within the planning scheme, and in particular Clause 19.03 which, in general terms, seeks 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......", and which "....take into account the natural, cultural and strategic context of its location". Issues of individual taste or preference for architectural styles are irrelevant.
44 The strategic context relevant to the consideration of the design excellence of this proposal have been outlined in some detail previously, but the strong policy support for the provision of additional housing on strategic sites within close proximity of public transport, public open space, employment opportunities, retail, entertainment and community facilities, is often overlooked when consideration is being given to the minutiae of a building's design. In our opinion this policy support weighs heavily in favour of a higher building form on this site.
45 This site is clearly a site upon which a development ought to be encouraged to make a contribution toward the achievement of urban consolidation objectives.
46 The DDO5-2 applying to the site and to this section of Beaconsfield Parade, in many respects represents the bringing together of all the overlapping and contrasting policy provisions contained in the planning scheme and provides the guidance as to what constitutes an appropriate built form for this locality. It provides specific recognition that a higher built form than the one and two storey character of Albert Park is contemplated in this locality. A building at 9 m (the preferred maximum height) is deemed to meet the design objectives of the DDO for height. For reasons we elaborate on below, we are satisfied that this building at a height of 15 m, continues to meet the design objectives.
47 The proposal does in our view incorporate an appropriate transition in height from the building at 176 Victoria Ave. The proposed wall height corresponds with that of the wall height of no.176 and the upper level is stepped away from its neighbour. The architectural treatment of that part of the proposed building abutting no. 176 also contributes to the appropriateness of the response to that building.
48 With respect to the transition in height from the three storey flats at 82 - 84 Beaconsfield Parade, we do not think that the form, scale or height of the proposal ought to be in any significant way influenced by its neighbour to the north, a building which from a streetscape perspective, has no architectural merit. There is in any event a transition in height between the proposal and this neighbour and we think that what is proposed is appropriate.
49 There is also an appropriate transition in height to the rear to the lower scale of development beyond Beaconsfield Lane. The maximum height of the proposed building is setback approximately 19 m from Beaconsfield Lane and is separated from the lane by 176 Victoria Ave. The review site in fact has only a narrow12 m direct interface with the lane and at that interface, the proposal has a height of approximately 9 m or three levels. Having regard to the site's strategic context and the provisions of the DDO5-2, this transition in height is in our view appropriate.
50 It is also relevant that the requirement of the DDO 5-2 that the proposal does not cast an additional shadow beyond the kerb line on the south western side of Beaconsfield Parade between 10 am and 4 pm at the winter solstice, is achieved by the proposal.
51 We turn now to a consideration of the detailed aspects of the design and its treatment of it's immediate interfaces.
52 Our principal concern is with the proposal's interface with no. 176 Victoria Ave. As we have outlined previously we received submission to the effect that Standards B17 and B19 of Clause 55 ought to be applied in assessing the impact of the proposal on the amenity of residents of the neighbouring properties. While we accept that Clause 55 maybe a useful tool in assessing aspects of proposals of this type, the temptation to apply those standards in the absence of other quantifiable standards ought to be avoided. We have outlined previously why we are satisfied with the relationship between the proposal and no.176 Victoria Ave in terms of the transition in height between the two buildings, and we do not think that requiring a height related setback such as that encompassed within Standard B17 would make any appreciable difference toward the achievement of the objective which underpins that standard[1].
53 Having regard to the nature of the interface between the two buildings, the critical amenity issue relates to the existence of the habitable room windows toward the rear of no.176 Victoria Ave, and the daylight impact of the proposed building on those windows. In our view, Standard B19 of Clause 55.04-3[2] is appropriate to apply in the circumstances of this site. We are satisfied that compliance with Standard B19 (which will in effect require the provision of a light court adjacent to those windows) will limit amenity impacts on the residents of the abutting property to a level which is acceptable in this site context. The changes to the proposal required by compliance with B19 can be accommodated without substantial modifications to the proposal.
54 Mr Kusznirczuk also submitted that proposed unit 16 which abuts Beaconsfield Lane and has an interface with the rear of 176 Victoria Ave, ought to be deleted. We understood Mr Kusznirczuk's submission on this point to be based on a concern about the visual bulk impact of the proposal on the rear of no. 176 Victoria Ave. We observe however that this unit is setback from the common boundary and the terrace is screened to prevent overlooking. There are also a number of outbuildings located on 176 Victoria Ave which create a degree of separation between the rear of that site and the review site. In these circumstances we do not agree with Mr Kusznirczuk's submission.
55 For the reasons we have outlined previously we are satisfied that the interface with Beaconsfield Lane and the rear of the properties on the opposite side of the lane, is also satisfactory. The height of the building at the lane is approximately 9 m which is the preferred maximum height under the DDO5-2 and the transition to the maximum height occurs over a distance of some 19 m. We reiterate that the review site has a narrow, 12 m interface with the lane and we do not regard the 9 m height of the proposal at the lane, over that 12 m distance to be excessive in terms of any amenity impacts on the rear of the dwellings to the north of the lane. Overlooking can be controlled by the use of appropriate screening.
56 The proposal's interface treatment with the three storey flats at 82-84 Beaconsfield Parade is also satisfactory. We note that the units in that development are oriented to the north west with balconies and windows to living rooms located on the opposite side of the building from the review site. We acknowledge that the kitchen and bedroom windows which face the review site contribute to the amenity of those units but the impact of the proposed building on those windows is not so great as to warrant a redesign of the interface between the two sites.