Prestige Homes Pty Ltd v Yarra CC [2009] VCAT 958

1. Reneka Hart, who lives to the west of the review site, is joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The decision of the Responsible Authority is affirmed.[1]
3. In permit application PL08/0203 no permit is granted.

Mr Daniel Bowden, Town Planner of Daniel Bowden Town Planning.

Ms Mimi Marcus, Solicitor of Maddocks Lawyers. She called written and oral evidence from Mr Craig Czarny, Urban Designer and Landscape Architect of Hansen Partnership Pty Ltd.

Mrs Reneka Hart, Mrs Gayle Raftery, Mr James Wilson.

(There being no objection I joined Reneka Hart as a party to the proceeding).

Construction of two buildings over basement parking for 19 'apartment style' dwellings.

Section 79 Planning and Environment Act 1987.

Environmental Significance Overlay - Yarra River Environs (ESO1).

Design and Development Overlay - Yarra River Corridor (DDO1).

Cl. 32.01-4 (two or more dwellings on a lot in R1Z).

Cl. 42.01 (buildings and works; removal, destruction and lopping of vegetation in ESO1).

Clauses 11, 12, 14, 15, 16.02, 18, 21.02, 21.05, 22.08, 22.10, 55 and 65.

I inspected the site and locality a few days after the hearing.

The review site is located on the southern side of Rex Avenue and has in the past been partly developed as a carpark in association with the now defunct Amcor Paper Mill on the other side of the Chandler Highway. The site has an area of 2,588m2, a width of 25 metres and a variable depth of 91/100 metres. It is conveniently split into two parts - a relatively level area at the northern end which was used for the carpark and a much steeper and unused section at the southern end which forms part of the Yarra River escarpment. The site contains some vegetation but the most significant trees are two spotted gums in the north east corner of the site and a very old olive tree near the western boundary. These are to be retained. Another group of less significant trees on top of the escarpment are to be removed as part of this development. Other vegetation near the river is to be retained and/or replaced as part of future landscaping.

The land to the west is occupied by an Edwardian era dwelling at the front of the site and two modern dwellings at the rear. Land on the opposite side of Rex Avenue is also occupied by an Edwardian era dwelling with a variety of other dwellings further west. A large site two lots to the west abutting Coate Park contains a now disused Amcor research and development complex and Council is currently considering an application to redevelop this site for 65 dwellings. Land to the east between the review site and the Chandler Highway, although zoned Residential 1, is owned by the Melbourne Water Corporation and developed as a carpark and pedestrian footpath down to the edge of the Yarra River.

The nearest public transport (bus stop) is in Heidelberg Road at the end of Coate Avenue and the nearest train stations are each around one kilometre away at Fairfield to the north west and Alphington to the northeast.

1. This part of Alphington is in the process of undergoing significant change because of the closure of the Amcor Paper Mill and the sale and potential redevelopment of various parcels of Amcor land in the area. The main Amcor site on the south eastern corner of Chandler Highway and Heidelberg Road has been recently rezoned to allow for its comprehensive redevelopment for a variety of mixed use activities. Smaller sites such as the review site and the former research and development site further to the west in Rex Avenue have also been sold and are now subject to permit applications for redevelopment.
2. The review site and the locality have a somewhat unusual and isolated site context. The Chandler Highway to the east, Heidelberg Road to the north and the Yarra River to the south and west effectively separate and isolate the area from the extensive urban areas to the north and east. The site has excellent access to parkland along and near the Yarra River but access to other urban facilities such as shops, offices and schools requires the crossing of two major traffic thoroughfares. Neither Council nor the respondents suggested that the review site is unsuitable for residential development and the key issue in contention is the intensity of development and the way in which the buildings appear within the Yarra River corridor.
3. At the hearing parties made reference to a more recent proposal on the review site for 5 dwellings (since reduced to 4) that is still under consideration by Council. It is not my task to assess that proposal and, as has been remarked upon by the Tribunal many times, nor is it my task to assess a range of site layouts. Instead I am only required to consider the merits of the proposal before me.

Planning policy, the Yarra River corridor and neighbourhood character

1. Policy support for the provision of medium density housing is provided in both the State and local sections of the Planning Scheme. It is obvious that any redevelopment of this site will positively contribute to achieving broad State and local planning policy objectives in relation to urban consolidation and more efficient use of land and services.
2. Local policy at Clause 21.05 includes 8 strategic elements of which Element 1: Urban Design Framework, Element 2: Residential Land Use and Development and Element 6: Yarra River Corridor are particularly relevant to this application. Also of particular relevance is built form and design policy set out at Clause 22.10. In addition to these broad planning themes relevant to development within the City of Yarra, the review site and other land along the Yarra River is also impacted by one or more environmental, landscape and land management overlays that require consideration of an additional suite of provisions, policies and decision guidelines. State policy also requires, amongst other things, protection of floodplain areas of environmental significance and the creation of a diverse and integrated network of public open space.
3. Council considers that the development is at odds with policies and strategies for the Yarra River contained in both the Planning Scheme (see for example Clauses 21.02, 21.03, 21.05-6 (Yarra River Corridor), Schedule 1 to the Environmental Significance Overlay - Yarra River Environs) (ESO1) and Schedule 1 to the Design and Development Overlay - Yarra River Corridor (DDO1). The two overlays include objectives and decision guidance of direct relevance to this application. Within DDO1 the Yarra River Corridor is divided into four geographic areas. The review site is within the 'Leafy Suburban Residential River Edge'. Design objectives and buildings and works requirements are given for the whole river corridor as well as for the four geographic areas. In addition separate design objectives and buildings and works requirements are given for the four areas. For the 'Leafy Suburban Residential River Edge' the design objectives and buildings and works requirements are as follows:

To maintain the natural, native vegetation dominated setting along the river edge, and on the skyline when viewed from the river edge and other public land within the corridor.

To maintain the appearance of the river bank, including the rear yards of houses, as a naturalistic, native vegetation dominated environment.

• Buildings should not penetrate the predominant tree canopy height.
• Landscaping should be provided around buildings with a landscape buffer between buildings and the river bank.
• Views of the River landscape should be provided between buildings.
• Blank walls should be avoided for facades fronting the river. Consideration should be given to providing balconies or other design features, which break up the surface and provide interest.

1. These and other policies in the Planning Scheme were referred to by Ms Marcus, Mr Czarny, Mr Wilson and Mr Bowden.
2. Reference was also made to Amendment C84 which has been reviewed by an independent panel, adopted by the Council and forwarded to the Minister for Planning for his consideration and approval. It is a major review of the MSS and given its advanced stage towards inclusion in the Planning Scheme, is a seriously entertained planning proposal. A new clause at 21.08 (Neighbourhoods) includes land within this area in the Fairfield - Alphington Neighbourhood.
3. I am satisfied that policy frameworks lend support for the development of the site for a medium density development, but where I differ from the permit applicant, but agree with Council and residents, is that I consider that the current proposal does not respond adequately to the specific site context and the particular policies and controls applying to development along the River Yarra corridor.
4. I accept that the site is zoned Residential 1, can be fully serviced and is within a long established residential area. Although not in or adjacent to an activity centre it is reasonably close to a range of urban facilities although it is likely that motor vehicles will be used to access the nearest shopping centres, schools and train stations. Apart from parkland, and bus stops in Heidelberg Road, the site is not within convenient walking distance of an activity centre such as Fairfield. However that may well change depending on what sort of facilities are included in any redevelopment of the Amcor site on the eastern side of the Chandler Highway. Planning policy provides strong support for more efficient use of parcels of vacant or underutilised land provided any development considers neighbourhood character, amenity impacts and site context. Given that the land is vacant, then even one very large mansion would in its own way be consistent with planning policy concerning urban consolidation and more efficient use of services. It is obvious that two, three, four, five or more new dwellings on the review site (or any other parcel of land for that matter) will incrementally achieve more in terms of satisfying policies aimed at urban consolidation and higher residential densities.
5. I consider that the site has a very challenging but potentially interesting and appealing site context. The northern two thirds of the site is relatively level and aside from the two large eucalypts on the eastern boundary and a large and very old olive tree on the western boundary has few physical constraints. In contrast the southern one third is very steeply sloping with a fall of around 17 metres from the edge of the escarpment to the river bank. The higher parts of the site provide views to the south and south east over parkland and the Yarra River. The general concept of providing two separate buildings over basement parking (a north and south building) provides some visual relief in the amount of building when viewed from the east and west.
6. Although in theory development could extend some way down the escarpment towards the river, the basic design philosophy of positioning buildings on the flatter part of the site with some protrusion over the lip of the escarpment is supported. It is an approach that has been utilised with the two new dwellings to the west, and despite some reservations about the visual impact of those dwellings on the river corridor, there is nothing inherently unacceptable in allowing buildings to be seen from within the corridor or other public land to the south and east.
7. This is not a suburban site with few site constraints and minimal planning controls. Mr Czarny describes it as a 'threshold site' because of its high visibility from many vantage points. Although the site is visible from the Chandler Highway bridge and some other vantage points, I am not convinced that it is highly visible from many vantage points and it is certainly not at the end of a series of major viewlines, at a major intersection or on a prominent ridge top. That does not mean that it won't be seen or that it won't appear a dominant object when viewed from the Chandler Highway bridge or other locations within the river corridor.
8. Whether a building can be seen is not the only matter to be assessed. Instead it is a question of balancing competing objectives and policies. On the one hand policy unambiguously seeks to maintain the dominance of the natural vegetated setting along the river corridor. On the other hand policy supports the development and redevelopment of fully serviced urban land. In this case I consider that the balance has swung too far towards built form and that insufficient attention has been given to the natural environment. The northern building attracted less criticism although residents and Mr Czarny were critical of its industrial appearance, the water tank in the front setback and the impact of the driveway and basement ramp on the two large trees. I consider these are all valid criticisms and, as I later discuss, have major reservations about excavating so close to the three trees proposed to be retained.
9. The southern building is the major problem. I am not satisfied that the tall southern building is an appropriate response and instead find that it will be a dominant element in the landscape. The building including the basement carpark abuts the eastern boundary with no opportunities for filtering landscaping. On the western boundary there is 4 metre setback but the space is occupied by a walkway with limited space for landscaping. I acknowledge that Mr Bowden suggested that the walkway could be replaced by landscaping to offer some visual relief, although any landscaping may be compromised because the basement extends to the western boundary for most of its length. While the 5-10 metre wide gap between the two buildings provides some visual break in the built form when viewed from the east or west, from the south (or south east on the Chandler Highway bridge) there is no relief in the building which stretches for a distance of 20 metres. Mr Czarny criticised this aspect of the design and suggested that a visual break should be provided along the southern elevation. Although he spoke favourably about the complete separation between the two dwellings on the site to the west, he did not necessarily advocate a complete separation on the review site. In essence he is seeking a break of sufficient size to provide visual relief and for landscaping to be provided between the built form. In essence he is seeking 'fingers of development' pointing towards the river - something that is proposed on the larger Amcor site further west in Rex Avenue. It is a concept that Member Hewet and I supported for a now constructed development in River Street Cremorne where building fingers project towards the river from the main building facing River Street. Although there is not a complete break in built form to allow views from the river to the street beyond, the space between the fingers is developed for landscaping to create a sense of openness rather than an unbroken and dominating wall.
10. I am aware that Council is in the process of considering an alternative application for 5 dwellings. Fortunately I do not have to consider alternatives but I would strongly encourage the permit applicant to start again with a fresh approach to the scale and character of development that may be possible on this most unusual site. I do not want to be prescriptive about numbers of dwellings or site layout, and do not intend to offer detailed suggestions about an acceptable layout. However it is obvious in visiting the site that it is very prominent from the south east and that the building should adopt a design that is more responsive to the Yarra River corridor.
11. Despite neighbouring residents being concerned about overlooking and overshadowing, the development complies with the relevant ResCode standard. In the case of overlooking, the test in planning terms is the prevention of unreasonable overlooking, rather than prevention of any overlooking no matter what the separation distance. Although I am rejecting this particular proposal, I am satisfied that in an urban context such as found at the review site, achievement of the relevant ResCode standard will provide a reasonable outcome for neighbouring residents in terms of the potential for overlooking. I take the same approach to overshadowing, which although of concern to the neighbour to the west, does comply with the relevant test set out in Clause 55.
12. Three trees (1, 2 and 3) are identified as being retained in this proposal. I share Mr Czarny's reservations about whether these trees will survive the amount of excavation required very close to their root zones. Mr Bowden rejected Mr Czarny's suggestion and submitted that the Arborist has given his conditional support for excavation close to these trees. While I accept that the Arborist considers that the trees can survive, there are cases such as this where a 'credibility threshold' is crossed and where a proposal is not what it seems. Tribunal members are not naïve and unworldly. In cases where the 'credibility threshold' seems to have been crossed it is necessary to adopt a commonsense 'look and feel test'. As explained at the hearing, I have had the unfortunate experience of allowing development close to a mature and magnificent Spanish Fir tree in Waverley Road, Malvern East. I received assurances from a Landscape Architect that provided appropriate construction techniques were followed, then there was little risk to the tree. Despite those assurances, the tree died. I do not know if the developer followed the permit conditions designed to protect the tree, but whatever the reasons, the fact remains that the tree died and in all probability it wouldn't have done so if construction had been kept well away from the critical root zone. The two eucalypts on the review site are very tall, seem to be in very good health and are clearly visible from within the river corridor. Their loss, or a heightened risk of loss, is unacceptable and I am not prepared to approve a development that allows excavation so close to the trunks and within the critical root zone. I also have concerns about the long term health and viability of the very old olive tree being retained near the western boundary. Although the basement has been designed to avoid the root zone, Mr Czarny explained in answer to a question from me that the branches would need to be trimmed, both to counter any stress caused by work near the root zone but also so the branches are clear of the three walls constructed close to the tree. He also made the point that the olive tree is located within a secluded courtyard and that its long term viability may be compromised by the desire of future residents to provide extra light into that space.
13. Although neighbouring residents were also concerned about the volume of traffic to and from the site, I am satisfied that the level of additional traffic generated as a result of this proposal is within reasonable bounds. Concerns about traffic and parking congestion are commonly raised in Tribunal hearings by residents living near new developments. It may be very obvious, but it is worth noting that ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I accept that the review site is some distance from public transport, shops and schools and that future residents will use motor vehicles to a greater extent than if the site were in or very close to an activity centre. However rejecting new development on sites such as the one on the review site because of the potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, relatively close to urban facilities rather than in remote and poorly serviced areas, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to. I also make the point that a scaled down development will obviously generate less traffic impact on surrounding streets.

1. Having regard to all of the above comments I will therefore direct that no permit is to be issued.

[1] In accordance with Section 4 (2)(d) of the _Victorian Civil and Administrative Tribunal Ac_t 1998 a failure to make a decision is deemed to be a decision to refuse the application.