Queens Parade Pty Ltd v Yarra CC [2011] VCAT 1173

1. Eleanor Laud and Emil Bulum are joined as parties pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Twelve drawings (TP03 to TP14) circulated to parties on 13 April 2011 are substituted for the application plans.
3. The decision of the Responsible Authority is affirmed.[1] In permit application PLN10/0932 no permit is granted.

Mr Dom Scally, Solicitor of Best Hooper Solicitors. He called written and oral evidence from:

• Ms Anita Brady, Heritage Consultant of Lovell Chen Pty Ltd; and
• Mr Marco Negri, Town Planner of Contour Consultants Australia Pty Ltd.

Ms Charmaine Dunstan, Traffic Engineer of Traffix Group Pty Ltd prepared a written statement but with the agreement of parties was not required to attend and answer questions.

Ms Katrina Thomas, Planning Appeals Advocate. She called written and oral evidence from Mr Bryce Raworth, Conservation Consultant and Architectural Historian.

Mr Travis Finlayson, Town Planner of Ratio Consultants Pty Ltd on behalf of Mr Michael Amarant, Mr William Silvester and Dr Jo-Anne Rayner.

Mr Jeff Lynn, Solicitor of Blake Dawson for Mr Stephen Amendola.

Ms Sally Draper, Ms G Pound, Ms Eleanor Laud, Mr Terence Nott, Mr William Silvester, Ms Carolyn Greenwood.

Part demolition of the building at No 142, complete demolition of the building at No 146 and construction of a 5 storey building with basement parking containing 25 dwellings, 30 car spaces and 13 bicycle spaces.

Section 79 Planning and Environment Act 1987.

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

Cl. 43.01-1 (demolition and buildings and works in HO327).

Cl. 52.06-1 (reduction in the provision of on-site car parking).

I undertook an inspection on the morning after the last day of the hearing.

The review site is located on the northern side of Queen Parade[2] and comprises two lots having a combined area of 875m2. The western lot (No 142) is occupied by a Victorian era, now disused two storey industrial building. No 146 (No 144 does not exist) is occupied by a single storey 1950's factory/office building. The site has access from a rear laneway which terminates midway along the review site and links with Grant Street to the east. A four and five storey apartment complex in a former industrial building is located to the west. A single story dwelling (which is one of a group of four dwellings) is located to the east. At the rear are a series of dwellings in converted industrial buildings, together with a single storey, more modern industrial building used for artist studios/workshops.

1. Although Council failed to make decision within the prescribed time, it has since decided to oppose the proposal as shown on the application plans for four reasons. In summary these concern:

1. the excessive amount of demolition; 2. the domination of the new building on surrounding buildings and the failure to respect the pattern, rhythm and spatial characteristics of the immediate locality;

1. the detrimental impacts on the amenity of surrounding properties; and

1. poor internal amenity.
2. Council submits that the amended, now substituted, plans do not go far enough to address its concerns.
3. Nearby property owners also oppose the proposed development for similar reasons to those raised by Council, although they also have concerns about car parking, traffic, overlooking, overshadowing and noise from decks.

1. Having regard to submissions and evidence I consider that the key issues are as follows:
   1. Is there policy support for redevelopment of this site with a building of the form and scale proposed?
   2. Is the extent of demolition reasonable?
   3. Does the new building represent an acceptable response to its site context?
   4. Are there any unacceptable external or internal amenity impacts, including parking, noise, overlooking and overshadowing?
2. I now address each of these in turn.

Is there policy support for redevelopment of this site with a building of the form and scale proposed?

1. The review site is suitable for redevelopment and in 2004 the Tribunal granted a permit for a three storey building containing 8 dwellings.[3]
2. The review site contains two disused industrial/commercial buildings in a Residential 1 Zone. It is on a main road, very close to a tram line to the east near the corner of Grant Street and within walking distance of the Clifton Hill activity centre. It is also within walking distance of schools, parkland, sports facilities, community facilities, other tram routes and retail/commercial centres in Brunswick Street, Smith Street and St Georges Road. The site abuts residential development on all sides - in remodelled industrial buildings to the west and north and to a Victorian era dwelling to the east.
3. Although there was debate at the hearing about whether the review site is a strategic redevelopment site because it can cater for more than ten dwellings, whether it can be so classified seems superfluous given the locational attributes referred to above. Whether the site can provide more than ten dwellings depends on the development proposed. The previous permit for this site issued at the direction of the Tribunal in April 2004 was for 8 dwellings. The current proposal is for 25 dwellings. The underlying site context has not changed to any degree and nor have the fundamental policy settings about issues such as urban consolidation, housing variety, site responsive design, the importance of neighbourhood character and providing acceptable internal amenity.
4. One significant aspect that has changed between the previous permit and the current application (apart from the number of dwellings) is the height of the building and the number of storeys. The previous application at three storeys was required to be assessed using Clause 55 (ResCode), whereas the latest application at 5 storeys is assessed using the Design Guidelines for Higher Density Residential Development.
5. Based on the locational attributes referred to above I consider that, in principle, there is policy support for a building of the form and scale proposed. It therefore becomes a question of whether the extent of demolition and the particular design has responded to the site context. For the reasons I now discuss, I am not persuaded that the design is one that warrants support.

1. The site is within the North Fitzroy Heritage Precinct. It is identified as being of contributory significance although it is only the former foundry building constructed in about 1890 at No 142 that has any heritage significance. Expert evidence on heritage issues was provided by Mr Raworth for Council and Ms Brady for the permit applicant. Both agree that retention of the façade of the historic building at No 142 is a good aspect of the development, although they disagree about the way in which the new building juxtaposes with the retained section of that building. Both witnesses referred to local heritage policy and decision guidelines at Clause 22.02 and to the heritage overlay at Clause 43.01.
2. Ms Brady acknowledges that the proposal for the subject property is not compliant with all aspects of Clause 22.02 but considers that because the precinct and Queens Parade has experienced considerable change, the contrast in scale is something that this area within the precinct can stand. She comments that the form and external 'language' of the new works are intended to visually differentiate between the lower (ground and first floor) component of the building, including the retained heritage component, and the upper levels. She also notes that this will give some prominence to the two storey lower component of the retained façade and assists in emphasising the primacy of the heritage frontage.
3. In contrast, Mr Raworth considers that the scale, setbacks and form of the new apartment block represent a visually aggressive development and that there should be greater boundary setbacks. In particular he considers that the upper levels to Queens Parade should be setback further to reduce their dominance relative to the retained former foundry façade. He also has concerns about architectural treatments including the 'S' shaped treatment at the eastern end of the front façade.
4. There was also considerable debate and submissions about how much of the building should be retained (i.e. the depth behind the front façade). In broad terms, the previous proposal retained the building as far back as the top of the pitched roof and in line with the visible section of the eastern side wall. Submissions opposing the development suggested that setting back the new building at No 146 to replicate the existing building would both allow the historic side wall at No 142 to be retained (and visible from the street) and allow the front wall of the new building to transition back to match the setback of the single storey dwelling at No 148.
5. The proposal introduces new built form directly above the retained façade without any setback while the wall of the second floor is setback 2.77 metres and third and fourth floors are setback 3.79 metres. Balconies protrude within these setbacks. These setbacks increase towards the eastern end of the building (above the new section of building at No 146) but at third and fourth floor are still slightly forward of the dwelling at No 148. Having now viewed the existing buildings and noted how they transition back from a zero street setback to No 142, and 5.5 metre setbacks at No 146 and for the dwelling at No 148, I consider that the proposal does not provide an acceptable transition, and that the section of new building at No 146 should be setback to roughly accord with the current setback. I acknowledge that the section of new building at No 146 is setback 2.81 metres at ground level. However, balconies overhang the ground floor terrace and I do not accept Mr Scally's proposition that the setbacks and design treatment at ground level provide an opportunity to understand/appreciate the façade of the historic building at No 142 when viewed from the east. What is required is a greater setback of the new section of the building at No 146 and retention of a longer section of the side wall of the foundry building. In essence, I am suggesting that in any revised proposal the treatment of the façade and side walls should adopt an approach more akin to that approved by the Tribunal in 2004. It follows that I do not support the new building sitting so close to the street frontage and consider that the setbacks need to be increased both vertically (as the number of storeys increase) and horizontally (towards the boundary with No 148). As now designed I consider that the building will visually dominate both the retained façade and the adjoining single storey dwelling to the east.

Does the new building represent an acceptable response to its site context?

1. The simple answer is no. I am not persuaded that either the overall height of the building or boundary setbacks are acceptable. In considering these issues it is necessary to think of the setbacks in 3 dimensional terms so that the interplay of setbacks from side, front and rear boundaries at different levels are considered together. The remodelled industrial building adjoining to the west has a mainly four storey height but with a five storey section at the front facing Queens Parade. It is an unusual building and not what it seems from the street. It is in effect two buildings abutting the front and rear boundaries separated by a large open courtyard. It therefore does not have a solid wall facing the review site but instead has three distinct interfaces. At the rear it is a four storey building, in the middle an open, ground level communal courtyard and at the front a four storey building with a relatively small fifth storey section positioned away from the side boundaries. The proposed building partly responds to this interface by providing increased setbacks in the central section opposite the open courtyard. The additional setbacks suggested by Mr Negri (and the deletion of one dwelling from the third floor) are an improvement in terms of the interrelationship with the building at No 140, but are based on reducing overshadowing impacts to semi secluded open space rather than for reasons of reducing visual bulk, particularly when viewed from the communal courtyard. I do accept however, that the proposed building with the additional changes suggested by Mr Negri, is generally acceptable along this boundary and that higher built form that approximates the existing four storey buildings at No 140 is not unreasonable.
2. The relationship of the building along the eastern and northern interfaces is more problematic, and unacceptable as now designed. The dwelling on the adjoining site at No 148 Queens Parade is a single storey Victorian era dwelling that has been renovated and extended. The backyard includes a double storey apartment located next to the rear laneway and the space between it and the dwelling is developed as secluded open space. In the previous application, and despite it only being of three storeys, the Tribunal was critical of the proposed setbacks to No 148 (and to No 34 McKean Street at the rear) and required increased setbacks and the deletion of dwellings. While ResCode and the various setback standards do not apply to this latest proposal, I cannot understand the logic of proposing a building which introduces built form where the Tribunal has previously said it was unacceptable. Built form is either acceptable or unacceptable having regard to the site context. The tools used to make that assessment (whether ResCode or the Design Guidelines for Higher Density Residential Development) do not alter the facts surrounding the site context which for both properties concerns backyard space. As with the previous proposal, no landscaping is proposed along these boundaries and the appearance of the building from No 148 Queens Parade and No 34 McKean Street would be entirely one of built form. It is correct that these boundaries are presently comprised of built form but a significant difference between the existing and proposed is the increased height of built form. Despite the progressively increasing side setbacks for the upper storeys, the new building still presents as a visually dominating and overpowering building when viewed from these adjoining properties. It is more extreme when viewed from No 148 because of the orientation of the rear yard and the lack of separation to the new building. At No 34 McKean Street the length of the backyard, and therefore the greater separation distance between the dwelling and the proposed building, serves to ameliorate the visual dominance.

Are there any unacceptable external or internal amenity impacts, including parking, noise, overlooking and overshadowing?

1. With the exception of the overshadowing to the west which can be addressed by the changes suggested by Mr Negri in his evidence statement, I am satisfied that overshadowing has been dealt with satisfactorily. Although neighbours at No 21/140 and 22/140 Queens Parade were concerned about shadowing of terraces leading off bedrooms, their main areas of open space are off living areas and face north away from the review site. In such circumstances I would not require changes beyond those suggested by Mr Negri.
2. The light court about midway along the side of the dwelling at No 148 Queens Parade provides light to a bedroom, study, bathroom and laundry as is a crucial factor in the amenity of these rooms. As already noted, ResCode does not apply to this application, but it nevertheless provides a useful tool to assess whether the impacts on this light court are acceptable. In my view they are not and I am not persuaded that sufficient care has been taken to avoid unreasonable impacts on a feature that is very important for the amenity of residents in this single storey dwelling.
3. I note that the potential for overlooking has been satisfied by providing 1.7 metre screens or highlight windows. I agree with Mr Silvester that taller people have little trouble seeing over 1.7 metre high screens but the test set out in ResCode, and applied more generally, is that views within 9 metres of habitable room windows and secluded open space should be screened to 1.7 metres above finished floor level. Screening to that height does not have to be solid, but can be up to 25% transparent.
4. Mr Silvester lives with his family immediately behind the site at No 34 McKean Street and Ms Greenwood lives with her family in the multi storey converted industrial building at No 46 McKean Street. The Silvester property is a converted single storey industrial building with an open rear yard containing a swimming pool. Although a tall brick wall along the boundary separates it from the review site, upper levels of the proposed building will be visible. Of more concern than visibility is the location of open balconies and the potential for overlooking, noise transmission and anti social behaviour. It seems that Mr Silvester and his family have suffered such impacts from the rear dwellings in the remodelled industrial building at No 140 Queens Parade. They are fearful the new building as now designed will exacerbate those problems. I understand their concerns, particularly given that balconies for two dwellings (1.3 and 1.4) are located right on the boundary and the balcony on the level above is setback 1.8 metres. The lower balconies are behind a 1.8 metre wall while the balcony above is screened to 1.7 metres. I accept that the existing boundary wall is quite imposing and that this is not suburban setting with open backyards. Nevertheless the existing wall is a benign interface and there would be benefit in trying to retain as much of it as possible in any new design for the review site. Ms Scally acknowledged that this wall could be retained.
5. While I accept that noise from residents can be intrusive and offensive, it is self evident that noise caused by speech, laughter, music and entertainment equipment will be generated from any form of residential development and that it is part and parcel of living in an urban area. Potential noise from future residents is not a reason to refuse a medium density development on planning grounds and there are other regulations and processes to deal with excessive noise and unruly/antisocial behaviour.
6. Ms Greenwood's dwelling at 5/46 McKean Street is on multiple levels. She is concerned about the potential for overlooking from the nearest balconies and windows into the private areas of her dwelling. The rooms and top deck currently enjoy a high level of privacy. I accept that construction of a taller residential building will affect that level of privacy. Is that loss of privacy reasonable given the planning controls that apply? Put simply, the answer is yes. The overlooking standard in Clause 55.04-6 (ResCode) and other similar policies and standards dealing with residential amenity seek to prevent an unreasonable level of overlooking, rather than prevent any overlooking at all. It is for that reason that planning guidelines only call for screening within 9 metres of habitable room windows and secluded private open space. Overlooking beyond that distance does not warrant screening to comply with the Planning Scheme.
7. I accept that 9 metres is not a magical line of invisibility and that overlooking beyond that distance can be confronting for people used too much higher levels of privacy. I also accept that a 1.7 metre high screen can seem too short to provide effective privacy protection. It is an issue often raised in hearings and one that I consider needs to be reviewed on a State wide basis. In the same way that the Good Design Guide standard of 1.6 metres was increased to 1.7 metres in ResCode, there seems to be some merit investigating the benefits of increasing the height to 1.8 metres.
8. Potential overlooking to the secluded rear yard at No 148 Queens Parade has also been addressed by screening of balconies and windows, although there appear to be a few instances where screening may be inadequate. Conditions could have dealt with these matters if a permit had been granted.
9. Several submissions were made about the potential for overlooking and loss of daylight to the artist studios in the single storey building on the northern side of the laneway. The building has high level, clear glazed windows facing the laneway and there is concern that activities undertaken in the studios (for example life drawing classes) will be overlooked from the balconies orientated towards the laneway. The windows in the studio face south and I am not persuaded that existing daylight would be unreasonably affected by a new building on the review site (although not applicable, the relevant ResCode standard for daylight would be easily met). As discussed in the paragraphs above, I accept that despite appropriate screening, there is always the potential for viewing over the top of 1.7 metre high screens.
10. As noted in paragraph 23, the test is not to stop all overlooking, just unreasonable overlooking of secluded open space and habitable room windows. In a closely settled urban area it is neither reasonable nor equitable to curtail new development in order to protect existing levels of privacy that far exceed what is required by the planning controls. If someone desires higher levels of privacy than considered reasonable under ResCode then the person affected might have to take some action themselves such as closing blinds, wearing clothes or installing screens.
11. Council is satisfied with the amount of on-site parking and does not have any concerns about unacceptable or unmanageable impacts on the road network. That view was not shared by neighbours who raised concerns about lack of on-site parking and congested parking conditions along this section of Queens Parade and in Grant Street. As noted by Ms Dunstan, applying the car parking rates set out in Clause 52.06 would require 50 spaces, a shortfall of 20 spaces. However, it is now very unusual to apply the Clause 52.06 rates to residential developments and instead the rates set out in Clause 55.03 (ResCode) are commonly used to assess whether car parking is satisfactory. The development provides 30 spaces allocated on the basis of 1 space per 2 bedroom dwelling, 2 spaces per 3 bedroom dwelling and 3 visitor spaces. This suggests a shortfall of 2 visitor spaces. Although I understand why neighbours may consider the parking to be inadequate, I consider that a slight shortfall of 2 visitor spaces is acceptable given the previously discussed locational attributed of the site.

1. For all of the above reasons I will direct that no permit is to issue.

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