[2005] VCAT 1120

In respect of review No. P454/2005 the application is allowed in part and in respect of review No. P612/2005 the application for review is also allowed in part.

The order of the Tribunal is that the decision of the Responsible Authority is varied.

A permit is granted for Demolition of part of existing building, use and development of five dwellings and waive of parking requirement at 20 Trafalgar Place, North Melbourne generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. TP04/1040 issued by the Responsible Authority on the 3 February 2005 modified by:-

• Condition 1a) shall be replaced with the following:

The overall building height including projecting fins must not exceed a reduced level as shown on the plans of RL39.49.

• In condition 1b) after the words 'south-facing' insert the word 'bedroom'.

• Replace condition 1d) with the following:

All projections of the architectural fins on the southern elevation over the title boundary must be removed.

• Delete condition 1e) and replace it with the following:

The maximum height of the southern elevation parapet wall shall not exceed an RL37.9m and any roof behind the parapet must be at a pitch of 45 degrees or less for a distance of at least 1m.

• Delete condition 1f) and replace it with the following:

The vehicular access area within the title boundary must be finished in a different pavement material and/or colour to distinguish it from the public laneway.

Condition 1g) The south-facing kitchen windows to have a raised sill, fixed opaque glass or externally fixed horizontal louvres or any such combination to a height not lower than 1.7m above the finished floor level.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr J. Verhoeven, Planning Consultant, representing C & H Raftopoulos and Mr A. Chan for AC Emprise P/L

1 This proceeding involved consideration of two applications for review one pursuant to s 82 of the Planning and Environment Act 1987 being a request to review the decision by the Melbourne City Council to issue a Notice of Decision to Grant a Permit by the objectors to the application and the second application being an application for review pursuant to s 80 of the Planning and Environment Act 1987 by the permit applicant against conditions proposed on that permit. The permit application seeks permission for partial demolition, use and development of five dwellings in a three storey building and the waiver of parking requirements in association with that use and development at 20 Trafalgar Place, North Melbourne.

2 At the conclusion of the hearing I gave an oral decision in this matter and the following is a summary of the reasons given.

3 In giving these reasons for my decision I do not propose to set out the details of:

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the subject land and locality;

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the proposal;

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the planning scheme provisions that apply; or

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the background to Council's consideration of the permit application and decision.

4 Essentially all of the relevant background facts in relation to these matters were comprehensively set out in the written submission presented by Mr Rowley on behalf of the Responsible Authority. I note there was no dispute between the parties as to the correctness of the relevant background facts in any significant way.

5 I also had the benefit of an extensive array of photographs and the aerial photo, diagrams and other materials which together with the onsite inspection of the review site and surrounding area conducted during the hearing gave me a very good understanding of the land, its context and the proposal.

6 In coming to my decision I have considered the matters raised in the submissions, the evidence of Mr Dann the project architect, the relevant matters under the planning scheme and legislation, together with the details of the proposal for which a permit is being sought.

7 This site is located effectively as an 'island' site surrounded on three sides by right-of-ways and laneways including to the east Trafalgar Place, bounded on the south by an unnamed laneway and on the west Webb Lane. To the north of the review site is an industrial style building constructed up to the common boundary with the review site.

8 The proposal consists of a three level building with a roof terrace located above the top floor. The ground floor is set aside for entrance and car parking with the car parking accessway off the unnamed lane to the south. Access to the carparks has been enhanced by setting the garage door openings back approximately 1.2m from the lane and making the garage openings 3.8m wide. It was common ground between the parties that access was achievable via this arrangement.

9 On the first level of the building are located two bedrooms, one orientated to the north of the building and one orientated to the south. On the second level is the main living area and amenities including the kitchen. A small balcony with the provision of a spiral staircase is located on the north side of the building on this level providing access to the roof terrace on the top of the building.

10 The building itself is quite contemporary in design with good use of material and well articulated.

11 There was no dispute between the parties that the site represented an appropriate location for a medium density development.

12 There are a raft of policies within the City of Melbourne's Planning Scheme that support the development of medium density dwelling in this location. These include the strategies set out under the Melbourne 2030 Strategy and the strategy and policies set out under both the Local Planning Policy Framework and the Municipal Strategic Statements of Clauses 21 and 22.

13 Matters raised as being a concern in relation to this development included the character of the area, the adequacy of the existing laneway network to accommodate the increased traffic as a result of this proposal, the car parking provision and access arrangements, the amenity impacts particularly on the rear of the dwellings facing Victoria Street (located to the south) and the overall height of the building and its ability to comply with the mandatory requirement of the Design and Development Overlay.

14 While this site is within a Heritage Overlay area which covers a broad area, it is clear and accepted by all parties that the location of this site in a rear lane environment allows a more robust approach to the design of an infill building. To that extent it was accepted that the approach by the architect in this design was acceptable in terms of a heritage response.

15 However there was criticism particularly by Mr Verhoeven on behalf of the objectors owning/residing immediately to the south of the review site that the building design incorporating an under-croft recessed car parking area was inconsistent with the character of buildings in the area. In addition this inconsistency was exacerbated by having fins located on the southern elevation at the eastern and western ends of the building projecting over the public space of the laneway. Mr Verhoeven indicated this type of design solution was not readily found or evident in the immediate area.

16 Mr Dann, architect for the applicant, responded to this concern indicating that he reluctantly agreed to remove the fins from the southern elevation of the building. Thus, no fin will overhang the public laneway.

17 On my inspection it was clear that most buildings in this location were built right to the title boundary of the property. This is what occurs in this proposal with the building line of the upper levels being in line with the title boundary. The recessed area at the ground level is provided to enhance access to the garages and is not intended to be a public area but a private area providing increased vehicular manoeuvrability. To that extent discussions that took place in relation to whether this area should be dedicated to the public as part of the road network were unjustified and unfounded.

18 The access to the rear of the Victoria Street properties is not affected by this proposal. That is the status quo is retained. The minor increase in traffic using the lane as a consequence of this development is unlikely to result in any perceivable change. Access and egress is acceptable and I find no reason to not accept the arrangement proposed.

19 However I do consider it appropriate to distinguish the private and public areas by requiring the recessed access area to be finished in a different material and/or colour.

20 Concern was also raised in resect of the visual impact of this building particularly to those open space areas and the rear of the properties to the south of the laneway (that is the rear of the Victorian Street properties). This impact need to be balanced against the necessity of providing an enhanced amenity for the future residents of the proposed dwellings on the review site. That is the height at the front of the building (the southern elevation) is to some extent dictated by the fact that the proposed building provides for a roof terrace and an area within which a solar panel is to be erected upon.

21 The consequence of the solar panel and the terrace is that the southern wall of the building rises to a height of some 2m beyond that which is necessary to accommodate the level of accommodation of the dwelling. Thus, in my view their needs to be a balancing of that impact and the desire to achieve a good design and good amenity, in determining what height the southern elevation should be.

22 In my view the visual impact of the wall height of the southern elevation on the Victoria St. properties given the separation distance is the narrow laneway which is only 2.7m wide and is atypical of the laneway widths of the area, is unsatisfactory. I propose to require the setback of the upper level and the reduction of its overall height so that the parapet does not exceed a height of reduced level of 37.9m. I will also require that any roof or wall beyond that height be angled at not more than 450.

23 Other amenity impacts that were identified particularly by Mr Verhoeven were in relation to overlooking from the bedroom window on the south elevation and from the kitchen window also located on the south elevation. I am not overly concerned with the privacy and overlooking concerns from the bedroom windows which are rooms which are not used frequently during the day and I accept the condition as imposed by the Responsible Authority requiring obscure glazing or the sill to be at least 1m above the floor level for the bedroom windows on the southern elevation.

24 However, the large kitchen window in my view does provide for unreasonable overlooking opportunities into the rear yards of the properties facing Victoria Street and to that extent I propose to request horizontal louvres be erected externally to those windows to a height of 1.7m above finished floor level. This outcome will provide for a balanced outcome resulting in long distance horizontal views being provided for the future residents of these dwellings while downward views into the Victoria St properties are protected.

25 The overall height of the building was another matter of contention given the DDO's requirement for a mandatory overall building height of 10.5m. In my view the overall height should be limited to a reduced level of 39.49m and this should be achieved for all of the building including the architectural fins. I am not satisfied that these fins are in fact a feature in the terms expressed in the DDO in that these fins have been erected to a height of 1.7m specifically to provide for privacy outcomes.

26 While I accept that architectural features may serve a dual purpose the question in this instance is does this feature need to be 1.7m above the finished floor level of the terrace as a feature element or has that height been determined in response to privacy considerations. In my view the answer is quite clear and to some extent Mr Dan the architect conceded that the 1.7m height was primarily chosen for privacy purposes.

27 Thus, I will impose a condition requiring the overall height of any part of the building including the architectural fins or partition/privacy walls not exceed a reduced level of 39.49m.

28 Finally Mr Verhoeven raised the use of the building for a wholly residential use was inconsistent with its Business 1 zoning.

29 This is an unusual B1Z site as it has no commercial street frontage and the use of land in the zone permits dwellings subject to permit. In my view there is no inconsistency with the proposed use as the use of this site will enhance the commercial viability of the surrounding area.

30 As a consequence of the above I propose to allow both applications for review in part and will direct that a permit be granted in a modified form reflecting the matters raised above in amended permit conditions and those matters previously agreed by the parties to the hearing.