Jennifer & Bruce Loveday, John Atkins, Sandra Groves, Beaumaris Conservation Society Inc, Sally Reinehr, Ron Stephens, Paul & Ulrike Fisher, Ian & Jill Johnson, Patricia & Peter Mitchell, Steven May, Joan Baster, Charles Engelbogen, Andrew Thomas, Chris & Amanda Grigsby, Geoffrey Toogood, John & Gloria Coghlan.

Renback Pty Ltd & Ors v Bayside CC [2012] VCAT 1632

1. An amended set of 8 drawings (all marked VCAT A) circulated to parties by letter dated 2 July 2012 are substituted for the application plans.
2. The decision of the Responsible Authority is affirmed. [1] In permit application 2011/403/1 no permit is granted.

For Renback Pty Ltd, RDF Nominees Pty Ltd, Michael Busuttil and George Thomaz

Mr Mark Naughton, Solicitor of Planning & Property Partners. Expert evidence provided by:

• Mr Tim Biles, Town Planner and Urban Designer of Message Consultants Australia Pty Ltd.
• Mr Jason Walsh, Traffic Engineer of Traffix Group Pty Ltd.
• Mr John Patrick, Landscape Architect of John Patrick Pty Ltd.

Photomontages prepared by Orbit Solutions Pty Ltd were also circulated to parties but Mr Groves was not required to attend and answer questions.

Ms Jennifer Bowdern Legal Support Planner and Ms Joanna Cuscaden Town Planner.

Ms Patricia Mitchell, Mr Ron Morris (Beaumaris Conservation Society Inc), Mr Andrew Thomas, Ms Sandra Groves, Mr Steven May, Mr Bruce Loveday.

Mr Paul Connor, Barrister instructed by Mr John Reinehr, Solicitor for Ms Sally Reinehr and Mr John Atkins. Expert evidence provided by Mr Andrew Clarke, Town Planner of Matrix Planning Australia Pty Ltd.

Construction of a two storey building containing fourteen, two bedroom dwellings over a basement providing thirty-one car spaces (two per dwelling plus three visitor spaces).

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

Cl. 43.02 (height exceeds 6 metres and roof decks in DDO1).

I inspected the site and the locality between the hearing days on 15 and 27 August 2012.

The review site comprises two lots and has a total area of 1,621m2. The western lot (No 431) is vacant while the eastern lot contains a double storey brick dwelling. The site is located on the northern side of Beach Road and is opposite the foreshore reserve along Port Phillip Bay.

Beach Road is an arterial road and in this location is an undivided sealed road with two traffic lanes in each direction. A pedestrian crossing with signals is located just west of the review site. The site also has rear access from an unpaved 3.6/3.7 metre wide laneway that links to Dalgety Road to the east. The laneway is 'U- shaped', continues to the west but then turns north and eventually links back to Dalgety Road.

Land to the west is vacant but a permit has been issued for a large, two storey dwelling of a very contemporary design. Land to the east contains a single storey rendered dwelling with a pitched roof. Other sites along Beach Road are mainly developed for individual two storey dwellings, although some medium density developments have also been constructed in recent times.

1. The permit applicant is appealing Council's failure to make a decision within the prescribed time. Council has since decided not to support the proposal for four main reasons which can be summarised as:

1. The development being a poor design response to the opportunities and constraints of the site because it does not respect the character of the area as the building is too large and bulky and there is an inability to provide meaningful landscaping. 2. The development does not accord with Clause 55 (ResCode) objectives and standards for neighbourhood character, street setback, site coverage, landscaping, side and rear setbacks, overlooking, internal views and design detail.

1. The proposed siting, height, design, building setbacks and landscaping are not in keeping with the character of the area and will not contribute to improving the amenity of the area as required by DDO1.

1. The proposal is an overdevelopment and does not provide an appropriate level of amenity for future residents and is visually bulky.
2. Landowners in the area support Council's reasons for not supporting the application and attended and were represented at the hearing to voice their objections. They are also concerned about the removal of the two large Norfolk Island pine trees, potential overshadowing of adjoining properties and traffic and parking issues, particularly the reliance on the rear laneway for all vehicle access to the site. In addition, Mr Connor questioned whether the building fully satisfied the mandatory two storey height limit set by DDO1.
3. All these concerns can be distilled into four key issues or questions:
   1. Does the building achieve the mandatory two storey height limit?
   2. Is a permit required for removal of the Norfolk Island pine trees?
   3. Do planning policy and neighbourhood character considerations support this proposal?
   4. Does the design and layout respond appropriately to the site context?
4. As I now discuss, I have come to the conclusion that the proposal to construct a two storey building containing 14 dwellings is not an acceptable outcome based on my consideration of the above issues.

Does the building achieve the mandatory two storey height limit?

1. The simple answer is no. As a preliminary point Mr Connor submitted that because the basement protrudes more than 1.2 metres above ground level in the north east corner, the building is of three storeys not two, and therefore prohibited under the mandatory height controls contained in DDO1. Depending on the point of measurement, the plans substituted by me at the beginning of the hearing depict the basement in the north east corner protruding by up to 1.8/1.9 metres above natural ground level.
2. Mr Naughton agreed with Mr Connor's assertion and in response tabled a revised set of plans that lowered the building so that the basement does not rise more than 1.2 metres above ground level and therefore complies with the two storey height limit.[2]
3. Mr Connor in his final right of reply then raised a concern that within the centre of the building the basement is still more than 1.2 metres above natural ground level. He submitted that there is Supreme Court and Tribunal authority for the principle that the natural level of the site is the level which pre existed prior to the commencement of the development. This principle makes perfect sense in that it overcomes the problem of a landowner changing natural ground levels to gain a development advantage.
4. While I do not disagree with the principle, it is critical to keep in mind what the planning control is attempting to achieve and the actual circumstances of the particular proposal. In this case the building can be lowered as shown on the revised plans so that none of the outer basement walls exceed 1.2 metres above natural ground level. In my view this satisfies the planning scheme provision limiting the protrusion of the basement above natural ground level and results in the building being of not more than two storeys in height.
5. However, within the basement footprint there is a small area where the roof of the basement is in excess of 1.2 metres above natural ground level because of a depression in the natural surface. Mr Connor submits that to be lawful (i.e. ensure the basement does not extend more than 1.2 metres above natural ground level), the Finished Floor Level (RL) above this low point should be no greater than 10.76 metres as against the RL 11.60 shown on the substituted plans and the RL 11.42 shown on the revised plans.
6. The survey plans confirm Mr Connor's assertion about levels to be correct given that the lowest natural ground level shown on the survey plan is RL 9.56. However I note that the basement is to be excavated to achieve a Finished Floor Level of 8.70 RL - 8.60 RL on the later revised plans - or approximately 1.04 metres below natural ground level at its lowest point. In a practical sense, the amount of excavation within the basement does not change the external appearance of the building or the fact that the outer walls of the basement do not protrude more than 1.2 metres above natural ground level. It would of course be possible to redesign part of the building so that at no point was the roof of the basement more than 1.2 metres above natural ground level. However that seems a very contrived outcome with no practical benefit in terms of how the building will be viewed as a two storey building sitting atop a basement protruding no more than 1.2 metres above natural ground level.
7. Ultimately, the question of whether the basement satisfies the 1.2 metre limit has not been crucial in my decision to refuse this proposal.

Is a permit required for removal of the Norfolk Island pine trees?

1. The Vegetation Protection Overlay (Schedule 3) applying to the land requires a permit to remove any vegetation native to Australia. As discussed at the hearing, a consideration of relevant legislation makes it clear that Norfolk Island is not part of Australia, that Norfolk Island vegetation is not native to Australia and that therefore the Norfolk Island pine trees do not require a permit for removal.
2. I accept submissions that they are prominent features in the landscape and that the neighbourhood character guidelines for Precinct H4 seek to avoid the removal of large established trees. However the fact remains that a planning permit is not required to remove these trees and their removal is not a factor that would cause me to refuse construction of the new building.

Do planning policy and neighbourhood character considerations support this proposal?

1. Although the review site is within a well established residential area, it is not close to or within an activity centre and nor is it on or close to the Principal Public Transport Network or feeder bus routes. The nearest commercial centre and bus route is in Keys Street to the north east and the Beaumaris Concourse to the north along Reserve Road. I acknowledge that construction of some form of medium density development on the site can be supported by policies seeking to consolidate development in well serviced urban areas. However that broad level of support needs to be tempered by site context and local policies seeking to provide guidance as to where new, more intensive development is to take place.
2. I also acknowledge that there is no suggestion in planning policy that sites away from activity centres and the Principal Public Transport Network should be excluded from more intensive residential development, but there is nevertheless a clear focus within policy on more intensive residential development taking place in and near activity centres and on and near public transport routes and nodes. Although there was some discussion at the hearing about whether the review site is a strategic redevelopment site referred to in Clause 16.01-3 because it can cater for more than ten dwellings, whether it can be so classified depends on the development proposed. These are two standard suburban sized lots. The similar sized lots next door each either contain or will contain single dwellings. An apartment style development will inevitably result in more dwellings than on the adjoining sites, but not necessarily ten or more. A scaling back by five dwellings to below ten dwellings does not change the underlying site context or the issues that need to be taken into consideration including policy dealing with urban consolidation, housing variety, site responsive design, the importance of neighbourhood character and providing acceptable internal amenity.
3. In Clause 15 there is reference to ensuring all new development appropriately responds to its landscape, valued built form and context and in Clause 15.01 there is policy dealing with (amongst other matters) urban design and neighbourhood/subdivision design. Local policy at Clauses 21.03 and 21.06 continues these themes although with an emphasis on directing new medium density housing to Major Activity Centres and residential opportunity areas, particularly those with good access to public transport routes as identified in the Strategic Land Use Framework Plan. There is also an emphasis in local policy on protecting scenic and landscape character and protecting and enhancing the quality of the natural and built environment through ecologically sustainable development. Clause 21.06-1.4 includes an objective and strategies aimed at strengthening and reinforcing the role of Beach Road/The Esplanade as a scenic boulevard.
4. Neighbourhood character policy is included at Clause 22.06 and the review site is within Precinct H4. The precinct is a relatively long linear strip following Beach Road/The Esplanade from the eastern boundary of the municipality at Charman Road to the activity centre clustered around the Balcombe Road intersection. For about half its length it widens to include streets a short distance back from the coast. In the vicinity of the review site it extends inland to almost its widest extent to include dwellings on the north side of Reid Street. The statement of desired future character for Precinct H4 is that:

The single and double storey dwellings sit within the topography and informal landscaped surrounds, including remnant and indigenous coastal trees. The variety of dwelling styles reflect the coastal setting through their design, details and finishes. An informal feel to the streetscapes is achieved by spaces around buildings, the lack of or unobtrusive style of front fencing and informal street treatments. Along Beach Road, development responds to its highly visible location on the edge of the coast by providing visually interesting forms and facades. Informal street treatments remain in those streets with no kerbing and remnant street tree planting is retained. Coral and Point Avenues form an area of significant neighbourhood character.

1. As is the case in other character precincts across Bayside, separate objectives and related design responses and things to avoid are listed for H4. Eight are given for H4 and they have quite similar wording to those for other character precincts. Ms Bowdern, Mr Clarke and Mr Biles made detailed comments about these in their written material and Messrs Connor, Morris and Naughton also dealt with neighbourhood character policy in their written submissions. The objectives include:
   • To enhance the bayside vegetation character of the area through the planting of indigenous coastal species.
   • To maintain the rhythm of spacious visual separation between buildings.
   • To minimise the dominance of car parking structures and the loss of front garden space.
   • To ensure that new buildings and extensions do not dominate the streetscape.
   • To encourage innovative architecture that reflects the bayside setting.
   • To use lighter looking building materials and finishes that complement the bayside setting.
   • To maintain the openness of the streetscape and views to coastal garden settings.
   • To create a visually interesting and attractive built form interface with the foreshore reserve, on properties fronting Beach Road and visible from the reserve.
2. These are to be achieved by design responses including:
   • Retain large, established trees and provide for the planting of new trees and shrubs wherever possible (locate footings outside root zones).
   • Dwellings should be sited to create the appearance of space between buildings to accommodate substantial vegetation.
   • Locate garages and carports behind the line of the dwelling.
   • Minimise paving in front garden areas including driveways and crossovers.
   • Underground car parking accessed from the front of the site should only be provided where other options are not possible due to site constraints, the garage doors do not dominate the façade and the front setback area is retained as predominantly garden space.
   • Provide articulated roof forms to create an interesting skyline when viewed from the beach.
   • Provide low or open style fencing
3. Things to avoid include removal of large established trees, front setbacks dominated by impervious surfaces, large bulky buildings with poorly articulated front and side wall surfaces, highly reflective materials or glazing, high or solid front fencing, flat poorly articulated roof forms and façades visible from the public domain.
4. I accept that the proposal does not offend all of the objectives and design responses and that some elements such as underground parking with access from the rear lane are consistent with the design responses. Other elements such as siting dwellings to create the appearance of space between buildings to accommodate substantial vegetation are less consistent with the design responses. In making these comments I recognise that the objectives and design responses are not mandatory controls. They are provided for guidance and there will be few, if any, developments that fully achieve all of them. It is also clear that newer developments along Beach Road are for the most part very much larger and visually dominating than the older development they are replacing, and that the character is therefore evolving from that described in the character statement. The proposed dwelling on the site to the west is but one example of how that character is evolving to a more 'robust' built form and one that to a greater or lesser degree is at odds with the outcomes sought for Precinct H4.
5. Having regard to all these policy influences, I am satisfied that there is encouragement for a residential development on the review site which is different to the more traditional, one dwelling on-a-lot, that represents the original dwelling type throughout this part of Beaumaris. I consider that there is justification for a different, more intensive built form and that there is nothing inherently wrong or unacceptable about an apartment style building. However all development must respond to its site context. The key issue then is the specific design response and whether it is an acceptable response to the site context. As I now discuss, it is on such an assessment that this particular design does not warrant my support.

Does the design and layout respond appropriately to the site context?

1. One of Council's grounds for opposing the development and one raised in other submissions concerns overdevelopment. Although overdevelopment is often associated with the number of dwellings, it is not the number but rather the intensity of built form which is important. For example, 6 free standing town house style dwellings on the review site could have the same intensity of built form as 14 much smaller apartment style dwellings such as in this proposal. It is also true that two developments, each comprising the same number of dwellings, can have completely different impacts. The reason I have refused this application is because of the intensity of built form, not the concept of constructing apartment style dwellings on the site.
2. What is at issue is the specific design response and whether it is an acceptable response to the site context. Overdevelopment is a commonly used expression to dismiss development proposals which seek to replace or supplement a single dwelling with two, three, four, five or more new dwellings and to introduce significant built form into particular neighbourhoods. An assessment against overlay controls (where they exist), local policies and the provisions of Clause 55 (ResCode) can often demonstrate that a proposal is not an overdevelopment despite being more intensive than what has existed before.
3. Clause 55 is specifically designed for the assessment of applications for medium density development of up to three storeys in height and provides guidance as to what is acceptable. Compliance with the relevant ResCode standard is deemed to be compliance with the related objective. Where compliance with a numeric standard is not achieved then a judgement needs to be made as to whether the related objective has been met. However, it is not a question of ticking all, or most, of the ResCode boxes in order to receive a permit. However the cumulative failure to satisfy the various numeric standards often provides a good indication that a proposal is an over development and that it needs to be scaled back to more closely match the particular site characteristics.
4. In essence, this proposal seeks to do too much on the site and stretches the built form envelope to a point where it is unacceptable. The Bayside Planning Scheme includes variations to the normal ResCode standards which result in the need for buildings to have a minimum front setback of 9 metres, lower site coverage of 50%, greater side and rear boundary setbacks and different front fence treatments. While these standards are not mandatory and differences can be accepted provided the related objective is met, non compliance and the extent of non compliance can demonstrate that a proposal needs to be scaled back to achieve the varied built form outcome specifically sought for Bayside.
5. In considering this question I am not concerned about minor areas of non compliance of 100mm or so but am concerned about much larger differences such as those along the eastern side boundary of approximately 2 metres. While the eastern side of the proposed building does not abut secluded open space of the adjoining dwelling, at its highest point above ground level and where setbacks are most critical, the building is closest to and most visible from the rear yard of the adjoining dwelling. Mr Naughton may be correct in submitting that the existing dwelling on the review site does not satisfy the standard but I am considering a new building with a much bigger 'mass' of built form (height and length). It is because of that much greater mass that I consider that, as a minimum, the varied setback standards should be achieved.
6. In the case of the front setback I acknowledge that the front wall of the building is setback 9 metres and that only 2 small areas of the first floor balconies for Dwellings 9 and 11 protrude within the 9 metre setback. I also accept that the variation in first floor balcony setbacks adds articulation to the front of the building, although it is also true that the same level of articulation could be achieved if the whole building was moved back so all elements achieved the 9 metre setback or alternatively the balconies were reconfigured.
7. A related concern is the extent of built form across the width of the site. This does not relate to numeric ResCode standards. Instead it concerns the broader concept of neighbourhood character which is referenced in the objectives for many of the ResCode requirements including B1, B6, B13 and B17. It also concerns the aim in local policy (Clause 22.06) to maintain the rhythm and spacious visual separation between buildings and to ensure that new buildings and extensions do not dominate the streetscape. I have referred to this policy in some detail in the previous section and noted that the proposal does not offend all the objectives and design responses and in some cases is consistent with them.
8. Despite being consistent with some of the objectives and design responses, I am not persuaded that the building has maintained the rhythm and spacious visual separation between buildings or that it does not dominate the streetscape. At ground level, the building extends across the whole width of the site save for 2 metre setbacks along the side boundaries. I accept that the setbacks increase marginally further into the site, although I am not convinced these increased setbacks will be discernable when viewed from Beach Road. I acknowledge that the first floor is setback from both side boundaries by 3 metres, again with some marginal increases further back into the site. The stand alone entry portico clearly marks the entry to the building and the recessed central hallway at ground level has the effect of breaking up the façade. However the positioning of Dwelling 10 at first floor above the central hallway and its integration with Dwellings 9 and 11 on either side largely negates that sense of visual separation between Dwellings 1/2 and 3/4 at ground level.
9. My concerns with the built form, and particularly side setbacks and the way in which the basement protrudes above ground level along the eastern side, carry through to certain aspects of the landscaping proposal. I am not suggesting that Mr Patrick's landscaping is unacceptable given the built form he has to work with, rather that a development with greater boundary setbacks, different site layout including extent of building footprint and height of the basement above natural ground level, would have provided more scope to achieve a landscape outcome more in tune with the outcomes sought by local policy such as the accommodation of substantial vegetation and protecting and enhancing local character. In making these comments I acknowledge that the landscape proposal includes 3, six metre high Drooping She oaks and a 5 metre high flowering gum in the front setback, as well 4 similar sized trees along the rear boundary and that these are good aspects of the proposal.
10. Some other matters of detailed design, overlooking and internal amenity were also raised in submissions. These included daylight to new windows (e.g. second bedroom windows to Dwellings 2 and 3) and overlooking from Dwelling 5 into the rear yard of No 433 Beach Road. Given that I am not granting a permit, I have not commented on each of these matters and they can be reconsidered in any new design for the site.
11. A revised proposal needs to reduce the intensity of built form in order to overcome these shortcomings and to recognise the Residential 1 zoning of the land and related character and other policies. The site is not in a business or mixed use zone, is not part of an activity centre or residential development opportunity area and must respond according to its residential context.

Is access off the rear lane practical and acceptable?

1. Beach Road is in a Road Zone Category 1. Although sites along Beach Road currently have direct access from that road, as is common along all arterial roads, VicRoads strongly supports the removal of direct access to arterial roads for larger redevelopment proposals where practical alternative access is available from side streets or rear lanes. In this case that alternative access is available from a 3.6/3.7 metres wide unsealed laneway along the rear boundary linking with Dalgety Road to the east.
2. I note that Council's traffic engineer indicated a preference for all vehicular access to be via Beach Road and was of the view that the proposed access off the laneway has significant safety issues. Neighbours are also concerned about the use of the laneway for reasons of amenity and safety.
3. Apart from some minor issues about the basement layout, Council's Traffic Engineer notes that the on-site car parking complies with the Planning Scheme requirement. Although neighbours are concerned about overflow parking in nearby streets, the development is not seeking permission to waive or reduce the parking required under Clause 52.06 of the Planning Scheme. Parking is therefore not a matter for my consideration.
4. Mr Walsh was called to give traffic evidence and did not agree with the concerns raised by Council and neighbours about use of the laneway. I accept his evidence that in traffic engineering terms the laneway 'can work' and that subject to sealing the surface, vehicles from the review site will be able to use it with minimal conflict or danger to other vehicles. Although the laneway forms a loop with each end connecting to Dalgety Road, the section behind the properties fronting Beach Road is relatively short, and provides access to relatively few properties. It also has a sharp turn to the west of the review which I found quite laborious to negotiate when undertaking the manoeuvre in a Toyota Aurion.
5. Despite Mr Walsh's assurances, I do however have concerns about possible pedestrian/vehicle conflict where the laneway crosses the footpath into Dalgety Road. High side fences abut the laneway to the footpath and effectively limit views between drivers and pedestrians. While overcoming potential conflicts is not insurmountable (i.e. providing a raised pavement, line marking and the like) it is indicative of some of the problems arising from using lanes in ways not envisaged when they were first provided 50 or more years ago.
6. It is not an issue unique to Bayside and there are many residential laneways around Melbourne that were never designed to cope with the number of traffic movements to which they are now being subjected. Although not directly relevant to this case, it is often the cumulative impact of individual residential redevelopment approvals which ultimately results in laneways developing very different characters and functions. It is not necessarily an issue about carrying capacity or potential vehicle conflict but instead concerns the more difficult to quantify amenity impacts to adjoining residents. For example, the noise and other impacts on bedrooms or living areas close to a laneway will be very different if that laneway evolves from one with a dozen vehicle movements per day to one where there may be over 100 movements per day.
7. The encouragement by VicRoads for alternative access may achieve arterial road management objectives, but it seems to be occurring without a full appreciation of what that might mean if the alternative access involves using laneways and other roads that have not had that level of vehicle use. I don't have any definite solution to the problem but it seems to me that a more holistic or strategic approach needs to be taken to this issue of utilising alternative access, rather than leaving if for assessment and resolution on a site by site basis.

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.

[2] The Planning Scheme defines basement as: A storey below ground level, or that projects no more than 1.2 metres above ground level.