Roman Catholic Trust Corporation v Stonnington CC [2014] VCAT 830

Roman Catholic Trust Corporation v Stonnington CC [2014] VCAT 830 - VCAT 2014 case summary — Zoe

[32]

In June 2013, St Peter's Parish Toorak, in association with Catholic Homes lodged with Stonnington City Council an application for a town planning permit to demolish a heritage building and to construct a mixed use development. The new building would comprise a retirement village and offices and meeting rooms for the parish. It would comprise four and five storeys. The application also proposes to change the access to Toorak Road. Some funds from the development are intended to be used to maintain and restore St Peter's Church.
Council failed to make a decision within the statutory period and the applicant has requested the Tribunal determine the application. The Council has resolved that had it been able, it would have refused the application. Council considers the development would:
- Be inconsistent with the neighbourhood character of Dalriada Street.
- Comprise excessive height.
- Adversely affect the amenity of adjoining properties through excessive visual bulk and overshadowing of dwellings to the east.
- Require significant trees to be removed and adversely impact trees on adjoining properties.
- Require the demolition of heritage building contrary to policy.
- Result in excessive traffic levels on Dalriada Street.
- Result in stained glass church window being overshadowed.
Twelve objectors support Council's decision and reiterate the above grounds. They also consider the development would:
- Generate adverse traffic and parking outcomes on Toorak Road and Dalriada Street.
- Cause loss of amenity to the dwellings to the east through overlooking and overshadowing.
- Cause loss of amenity through excessive noise and disruption through the construction period.
- Cause loss of amenity through excessive noise from balconies.
- Cause problems through waste collection and flooding of nearby properties to the north.
- Cause the loss of valued community facilities.
- Devalue adjoining properties.
VicRoads is the referral authority regarding the change of access to Toorak Road. It has no objection to the proposal subject to conditions that include prohibiting right hand turns from Toorak Road into the proposed basement.
The applicant contests the grounds submitted by the responsible authority and respondents. The applicant says the development complies with planning policy as the retirement village would provide housing choice for the growing number of aged people in Stonnington. The applicant says the building respects its site features, its heritage fabric and its context. The heritage building to be demolished has limited heritage value and the development is highly respectful of St Peter's Church. Finally, the development would provide acceptable amenity to its neighbours and its future residents.
The key issues that we must determine in this matter are:
- Would the proposed demolition of the former dwelling and removal of trees be acceptable?
- Are the proposed uses appropriate?
- Would the development's height, massing, setbacks and landscaping be acceptable?
- Would the development impose adverse amenity impacts on neighbours?
- Would the development provide acceptable amenity for its future residents?
We must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, we have decided to set aside the decision of the responsible authority. Our reasons follow.

[35]

It is proposed to demolish the former presbytery. The experts generally agree the former presbytery was constructed around 1902 as a dwelling known as Rothes. Construction was commissioned by a notable businessman who did not reside at the property. The architect is unknown. We accept the evidence the former presbytery was one of the first dwellings in this part of Toorak Road and is an early example of development arising from the period when the grounds of the large mansions in Toorak were subdivided from the larger estate.
The heritage experts agree the dwelling is a single storey Federation villa[2]. The external walls are part rendered and part painted brickwork. The roof comprises Marseilles pattern terracotta tiles punctuated by several chimneys.
Extensions were added to the dwelling's rear around 1928. It was purchased by the Catholic Church around 1947 and further extensions were completed in 1951. It was first used as a presbytery in 1954. Further internal improvements were made to the dwelling in the 1990s and the adjoining car park was constructed, replacing much of the garden.
We accept the evidence the building is structurally sound and the original footprint is largely unchanged. We also accept the evidence that some external changes could be readily reversed whilst reversing other external additions could be problematic.
The land is affected by Heritage Overlay Schedule 143. Permission is required to demolish the building and to construct buildings and works. The site is part of the Montalto Avenue/Stradbroke Avenue/Clendon Road/Toorak Road heritage precinct. The precinct is significant for a group of large nineteenth century mansions. It is also significant for residences and mansion buildings designed in the 1920s/30s period. The mature planting along the streets and the large gardens are also significant, particularly in Lansell Road and Clendon Road.
The site comprising the church and presbytery was graded "B" in the initial conservation study for this area[3]. The grading was revised to "A2" in a level 2 streetscape in 1992[4]. The grading applies to both the church and presbytery. Both the 1983 and 1992 studies are reference documents to clause 22.04.
An A2 grading is defined as:

[39]

The relevant purposes of the heritage overlay are to implement planning policy, to conserve and enhance places of cultural heritage and to ensure development does not adversely affect the significance of heritage places[7]. With regard to demolition, the decision guidelines require the responsible authority and on review the Tribunal to consider whether demolition would adversely affect the significance of the heritage place.
Clause 15.03 encourages the conservation and enhancement of places of significance. Clause 21.06 encourages:
- Heritage places to be protected.
- Development to respect the scale, form and setbacks of nearby heritage places.
- The prevention of incremental loss of heritage stock by retaining the key elements and conserving contributory elements of heritage places.
- Ensure that new development of both graded and ungraded buildings and vacant land in and beside heritage places respects the significance of the place.
- Promote design excellence that clearly and positively supports the ongoing significance of heritage places.
- Ensure that the design process and the consideration of applications respond to the citation (including any statement of significance), the relevant historic themes and the ascribed level of significance of the heritage place.
Mr Lovell, Mr Trethowan and two independent heritage experts advising the Council have no objection to its demolition. Mr Beeston disagrees and says it should be retained and refurbished.
We think several key considerations arise from the evidence. Firstly with regard to the building's level of significance, all the heritage experts agree the presbytery is not so individually significant to warrant its "A2" grading. Mr Trethowan and Mr Lovell note the statement of significance does not refer to the presbytery, or explain why the grading was elevated from "B" to "A2" between 1983 and 1992. They speculate the higher grading may have been intended to apply to the church, and it has been applied to the entire site through inexact drafting.
The experts also agree no heritage significance arises from its association with luminaries who may have funded, designed or resided at the dwelling. Mr Lovell says its architecture is modest as it lacks the embellishments usually seen in higher quality Federation dwellings. He thinks it was possibly a mediocre speculative construction.
We accept the expert evidence that notwithstanding its A2 rating, it has limited heritage significance in terms of quality of architecture or association with notable people.
The next matter is the dwelling's contribution to HO143. Mr Beeston and Mr Shafer say it is a rare Federation dwelling in Toorak and the first on Toorak Road. Mr Beeston says it is a relatively rare example of a Federation villa built in the 1900-1915 period, and an early example of the period in which many large Toorak mansions subdivided their land. Mr Lovell and Mr Trethown say there are numerous and better examples of Federation villas in Toorak.
Mr Beeston and the responsible authority also say the former presbytery is sufficiently intact to be a contributory building in the Toorak Road streetscape. Looking at the entirety of the heritage overlay precinct HO143, the flats to the east are the only buildings that do not contain built form with heritage fabric. Removing the presbytery would increase the gap created by non heritage fabric in the Toorak Road streetscape. They say widening the gap in Toorak Road would diminish the integrity of the heritage place.
We accept its demolition would remove contributory heritage fabric from a largely intact heritage streetscape and it would be a loss. We are not persuaded its loss would adversely affect the integrity, intactness or significance of the heritage place. Mr Lovell and Mr Trethowan say HO143 has little internal integrity as it is a collection of individual buildings and discrete subprecincts of different eras. They comprise late nineteenth century mansions or interwar apartment buildings. Turn of the century Federation villas do not contribute to the significance of HO143. We think its removal would not diminish the heritage precinct.
Finally the restoration of the building is contested. The experts agree the dwelling generally retains its original building envelope. Mr Beeston says the dwelling is largely intact and structurally sound, and the external changes can be reversed.
Mr Trethowan and Mr Lovell disagree and say it has been extensively modified. Its presentation has been further diminished by the removal of most of the adjoining garden for the car park. They also say it cannot be easily restored. Mr Lovell advises that removing the existing render from the original brickwork would be likely to damage the original brickwork. He thinks the brickwork cannot be readily restored. Mr Trethowan notes that even if the brickwork could be restored, there are insufficient records and photographs to be confident of the appearance and features of the original dwelling.
On the evidence before us, we are satisfied the demolition of the building would not detract from the integrity of the heritage place as it:
- comprises a disparate group of individually significant buildings and discrete subprecincts that are notable for periods of development other than the Federation era.
- Its demolition would not detract from the heritage integrity of Toorak Road as the presbytery makes a small contribution.
- The building has limited architectural significance and has no proven association with notable people or social history.
- Its successful restoration is uncertain, as is its original form and appearance.
- There are other, better examples of Federation dwellings in Stonnington.
We think its heritage significance arises from it being one of the first dwellings in this part of Toorak Road. This gives it a local significance that is not sufficient to justify its retention, particularly when the benefits of the proposal before us are balanced with this loss[8].

[46]

We consider the use of the land for a retirement village and parish facilities is generally consistent with the purposes of the General Residential Zone and the planning policy framework in the scheme. Clause 16.01 forecasts a growing demand for housing for older people. We consider that clause 16.02-4 is generally applicable in its support for residential aged care in residential areas. The Municipal Strategic Statement forecasts a substantial growth of older people and households[10].
Ms Heggen also noted the likely substantial growth in aged people seeking accommodation that is different to their family homes on generous lots. We think the scheme contemplates that older people are increasingly likely to prefer a multiple bedroom dwelling on a smaller lot with limited maintenance rather than living in a family home on a large lot. The municipal strategic statement specifically encourages housing for older people to be located in places that are proximate to services and public transport.[11]. We consider the use of the land for a retirement village located proximate to public transport, activity centres and various services is highly consistent with policy.
We also note a purpose of the zone encourages the provision of religious and community facilities in appropriate locations[12]. Policy also supports the provision of community facilities in residential areas to support social interaction and resilience[13]. Clause 21.06-9 also encourages universal access, social interaction and community inclusion and safety that can be delivered by community facilities.
As a general proposition, we consider a retirement village and parish administration and community facilities are appropriate in an area with an aging population. An additional thirty five dwellings would provide more housing choice. We think there are clear synergies between housing for older people and church facilities. We consider their co-location would enhance people's involvement in their community, assist the church's work and positively contribute to the resilience of the community at large as well as for individuals and households. We think use of the land for the proposed purposes is not contested by the parties. It is the height, scale and massing of the proposed building that is contested.

[56]

We agree with Ms Heggen and Mr Milner that the land is within a minimal change area under clause 21.05 due to its inclusion in a residential heritage precinct.
The responsible authority and respondents say the development does not comply with the policy framework set out in the purposes of the zone, the height limit in schedule 1 to the zone and the inclusion of the land in an area of minimal change. They say the height, scale and massing of this proposal is contrary to the policy context that encourages moderate housing growth in an area of minimal change.
The applicant says the zone purposes apply to the municipality as a whole, and terms such as moderate housing growth, neighbourhood character, and substantial, moderate or minimal change cannot be applied in a literal way or on a site by site basis. The terms are also relative, and they should be understood in the context of the height, scale and massing of the built form that is emerging in the municipality. They need to be applied carefully, taking into account the policy, built form and amenity contexts of the area in which the site is located.
We generally concur with the applicant. We do not support a blunt or literal application of general terms as a reasonable basis to assess the responsiveness and fit of this proposal into its built form and policy contexts. We agree with the applicant that reference to modest housing growth and neighbourhood character is both contextual and relative. We think we need to return to first principles and review the capacity of the site and the neighbourhood to accommodate the proposal. We need to understand moderate housing growth in the context of the prevailing built form and the types of housing emerging in Stonnington informed by the schedule and policies to which we must give effect.
With regard to the terms moderate housing growth, substantial, moderate and minimal change we think it has to be set within the context of housing change in Stonnington. The municipality includes precincts such as Forrest Hill in which growth includes apartment buildings of 25 storeys adjacent to a busy train station and principal activity centre. It also includes areas such as East Malvern that comprises single and double storey dwellings on larger lots in quiet residential streets. In the context of this range of housing precincts, the part of Toorak, characterised by large, robust apartment buildings in an area with good access to services is, in our view, clearly in the range of moderate prevailing built form and capacity for change.
We think not a great deal turns on the submissions and expert evidence of whether the site is in an area of substantial or minimal change. Mr Milner's and Ms Heggen agree the site can accommodate some additional dwellings. We adopt their advice to assess the proposal's fit into its context and response to site features and opportunities on its particular merits and circumstances rather than applying inflexible positions.
We think this approach is consistent with the Planning Panel that considered the designation of sites that are large, abut a main road and have heritage values. The Panel recommended they should be included in a minimal change area as they are constrained by their heritage values. However, the Panel found this inclusion is not intended to necessarily prevent an intensive development. The Panel was satisfied that a heritage site may have the capacity to absorb a significant level of development provided the heritage values of the site are not compromised[17]. It recommended the form and intensity of development on sites like this be highly responsive to their site features, heritage fabric and built form context. The inclusion of the land in a residential heritage precinct serves as a further design hurdle or benchmark to be satisfied, rather than a predetermined barrier to change.
Several other matters suggest a first principles approach. With regard to the height of the building the responsible authority and respondents say we should be guided by the Schedule 1 to the General Residential Zone. The schedule includes transitional provisions as follows:

[59]

As the application commenced prior to the approval of Amendment C187, the parties agree, and we concur that the height limit in clause 3.0 to the schedule is not applicable to this proposal.
Whilst the height limit in Schedule 1 to the zone is not applicable to this matter, we note the slope of the natural ground exceeds 2.5 degrees, and hence a building could have a height of 14.5 metres. The proposed building exceeds this height by approximately 0.5 to 1.5 metres, again subject to the slope of the land. We consider this indicates the building's height generally accords with the zone and schedule and is not considerably outside the recently approved schedule.
With regard to neighbourhood character, we note the reference to minimal, moderate and substantial change in the scheme provides only general guidance. We understand Amendment C175 seeks to provide more specific descriptions for all neighbourhoods in the city and to require development to respond to the specified preferred character. The responsible authority advised this amendment has been "on hold" pending resolution of the new zones and schedules. We have given this amendment no weight.
The municipal strategic statement provides more specific directions that are helpful in the design responses. Clause 21.03 encourages new built form to respect the valued traditional and heritage built form character elements. It also encourages landscaping that can retain, repair and enhance the landscape character of the city.
Clause 21.06 replicates the above themes. We note the further matters that have not been identified in the discussion above. These include :
- Retain established trees and vegetation in front and side setbacks.
- Avoid extensive site coverage and provide space around the building(s) and driveways for canopy landscaping.
- Ensure development provides a sensitive transition with lower density development in terms of built form, scale, setbacks and visual bulk.
- Encourage front, side and rear setbacks to respect the existing preferred character.
- Ensure development is not significantly higher or lower than surrounding buildings by encouraging two to three storey developments that relate to the preferred character of the precinct.
Returning to first principles, and guided by the specific design matters set out above, we consider an intensive development could be appropriate because of:
- Its proximity to tram routes.
- Its proximity to Toorak Village neighbourhood activity centre.
- Its convenient access to the wide array of entertainment, health, recreation facilities and services in central Melbourne.
- The site's generous size and regular proportions.
- Its context of large robust buildings including three and four storey flats to the east and west. Buildings are rectilinear, and upper levels are generally not recessive. Landscaping is generally subordinate to the built form.
- There is only one highly sensitive interface, that being its eastern boundary to no.587 Toorak Road.
With regard to the Toorak road interface, we agree with the parties that any design response be tempered by the site's inclusion in a heritage overlay and residential heritage precinct. This necessarily requires a proposed development on this land to demonstrate any robust built form would be secondary to the heritage buildings on the site and the wider heritage place and make ample provision for generous landscaping.
As the site has residential interfaces, we accept the built form should not impose unreasonable amenity impacts on its neighbours, nor appear out of place or uncomfortable in this setting.
With regard to no.587 Toorak Road, we think development should demonstrate that it is a polite neighbour that would not impose unacceptable amenity impacts on the residents of the dwellings on that land. Matters of visual bulk, overlooking, overshadowing and landscaping are the determinative considerations to this interface.
With regard to the design response to Dalriada Street, we think the character of the street and the garden character of the large dwellings on its north side are determinative. Maintaining and enhancing the amenity of the neighbours to the north should be a significant consideration. Heritage is not a determinative matter in the design response to Dalriada Street.
We turn to the proposal guided by the above discussion of the site features, built form context and policy context.

[61]

The design response to St Peter's Church is the primary design consideration in the part of the review site facing Toorak Road. The southern façade of the proposed building would be set back 12.7 metres from Toorak Road, with an entry porch intruding into the setback area. The façade would have a height of 11.4 metres and a width of 18 metres to the top of the pitched roof. Its height would further increase where two storeys would be contained within a pitched roof. The highest ridge of the roof would be some 30 metres from Toorak Road.
The proposed building would be set back more than 2 metres behind the front façade of the church and would be not less than 14 metres from the nearest wall of the church. It would also be lower than the bell tower and the ridge of the church's roof.
The Port Jackson Fig would be retained and the area between the building and the church would be landscaped to create a pedestrian area that can also carry periodic overland stormwater flows.
Mr Lovell Mr Trethowan, Mr Milner and Ms Heggen thought the design response is well mannered and respectful to both neighbourhood character and the site's heritage church.
Mr Lovell says the replacement building would sit well in the heritage place. He thinks it respects both the church and Langi to the west. It retains and enhances the forecourt to the church. The style and design is interpretative. The replacement building does not comprise an assertive form or style that could attract attention or compete with the church. Its larger massing and height is well behind the church and separated from that building. It would be screened by the church and the vegetation in the front setback.
Mr Trethowan agrees the front part of the proposed building would comfortably fit into the heritage place. He says the replacement building adopts the scale and massing of the mansions and the garden settings that comprise the heritage place. He agrees with Mr Lovell the massing is recessive and its style would not compete with the church. He thinks the church would continue to be the primary building in views from Toorak Road.
Mr Beeston and the respondents say the height and size of the development would dominate the church, diminishing its heritage prominence. Mr Beeston also describes the architecture style as a blamange that confuses various heritage styles.
We acknowledge Mr Beeston's criticism but in our view these references do not make the building unacceptable. We think a mix of references to architectural styles that are commonly seen in Toorak actually assist its fit into the streetscape and the neighbourhood character generally. They are not gaudy or eye catching in their manner and so do not detract from the church. We think the architectural style is acceptable in this heritage place and this streetscape.
We consider the proposal is an acceptable design response to Toorak Road and St Peters Church. Built form along Toorak Road is highly varied in height and massing. We think the proposed setbacks, height and massing would comfortably fit into a streetscape that has a prevailing three and four storey built form. The front part of the building would read from Toorak Road as a two to three storey building with a highly recessed higher part set back and integrated into the roof form. Its generous setbacks provide opportunities for landscaping and to provide for the overland flow path. It is subordinate to the church. We think it would be a respectful and tempered fit into a streetscape of robust built form.

[63]

The east elevation of the proposed building would have a length of nearly 69 metres long between the balustrades of apartments 102 and 108. The first and second floors break into two buildings of 25-28 and 33 metres in length. The gap between the two buildings would be principally 8 metres. The penthouse apartment would have an east elevation of 17.5 metres contained within a pitched roof.
The setbacks to the east boundary vary horizontally and vertically. At the lower ground, ground and first floors, the setbacks vary from 1.7 metres (north end) to 2.9 metres (south end). The centre of the east elevation would be setback 9.4 metres.
At the second floor the setbacks increase to 4.9 metres at the south end to 11.1 metres in the centre (with protruding balconies). The penthouse apartment would be 11.5 metres from the east boundary, with a protruding balcony.
The balconies and the living rooms of the dwellings at no.587 Toorak Road face the review site. A driveway and a row of Bhutan Cypress trees would be between the two buildings. The flats are set back between 4.5 metres at the south end to approximately 11.5 metres in the centre.
We find the proposed building is respectful to the eastern interface. Whilst long, it is sufficiently articulated through variable setbacks. There would be acceptable separation between the buildings. A break in the upper levels of the proposed building would break down its mass. The planting opportunities along the boundary, within the break and on the balconies will soften the built form.
Mr Galbraith estimates the life expectancy of the Bhutan Cypress trees on the east boundary to be in the order of thirty years. He expects they will continue to provide a dense landscape screen between the buildings for a considerable time.
Mr Galbraith and Mr Wyatt advise the Bhutan Cypress trees on the boundary significantly constrain new landscaping opportunities. Mr Wyatt has chosen a hibiscus species that is proven to grow under these trees[18]. He says they will grow to a height of 2 to 3 metres in a hedgerow and will fill the available space between the ground and the lower limbs of the Bhutan Cypress trees.
We are satisfied the combination of the separation between the buildings, the horizontal and vertical articulation and the existing and proposed landscaping would moderate the perception of bulk of the proposed building.

[65]

The proposed building would comprise four storeys at Dalriada Street. The lower ground, ground and first floors would all be set back 7 metres from Dalriada Street, with porches extending forward of the building. The second floor would be set back 10.87 metres from the street.
The prominent portico framing structures to the lower ground and ground floors would be 8.3 metres high and would present a visible two storey street wall to Dalriada Street. They would comprise a prominent framing structure that visually brings the lower levels closer to Dalriada Street.
The proposed building would have a length along Dalriada Street of 43 metres including the entry to the basement. The length of the building would reduce to 32 metres at the second floor.
Dalriada Street is a narrow road of 5.5 metres width. It is not a through road and it primarily provides vehicle access to properties, many of which also have a frontage to other streets. High fencing, chain mesh fencing and hedging is the common interface with the street.
The prevailing built form along Dalriada Street is mixed. No.2 Lansell Road to the west is three storeys to Lansell Road and four storeys facing the review site. Its setbacks to Dalriada Street are similar to this proposal, being 2 to 4 metres at the lower levels increasing to approximately 11 metres at its upper floor. The flats at no.587 Toorak Road are three storeys that present a sheer wall of that height, set back 5.5 to 8 metres from the street.
Two dwellings on the north side of Dalriada Street are opposite the northeast and northwest corners of the review site (nos.5/4 and 3/4 Lansell Road respectively). They are two-and-a-half storeys (due to raised floor levels) and they face east-west. They have setbacks to Dalriada Street between 2 and 8 metres. A generous area between the dwellings and opposite the review site is used for shared open space.
The primary argument against this development is that it would present excessive visual bulk to Dalriada Street. The respondents say a presently open streetscape with a garden mews character would be transformed into built form up to four storeys, located close to the street. The respondents say it would be imposing. It would loom. It would overwhelm. It would be dominant and it would overpower the properties on the north side of Dalriada Street[19].
Mr Milner says the intensive built form is at the wrong end of the site. He says the length and height of the built form would be transformational rather than a comfortable fit. It would truncate views of the rear of the church. Ms Peppler and the responsible authority also say the setbacks and the presence of a drainage culvert along the north boundary constrain landscaping adjacent to Dalriada Street.
We accept the northern façade would be a significant change to Dalriada Street. We agree with the respondents it would be visible from the shared open space between the two dwellings at no.4 Lansell Road and from windows of two habitable rooms at the southwest corner of no.4/4 Lansell Road. These are the most affected habitable rooms.
Whilst it would comprise a very different outlook, we are not persuaded it would be an unacceptable outcome in this neighbourhood context or in its policy context.
The visibility of buildings is discussed repeatedly at the Tribunal and it is well established that visibility is not sufficient to make a new development unacceptable.
Firstly we note the dwellings to the north of Dalriada Street have enjoyed considerable amenity, borrowed from their unfettered views across the tennis courts. Given the attributes of the site that could make a robust development acceptable, we think residents to the north should expect the rear part of the church site to be redeveloped with a starting point for redevelopment of two to three storeys given the prevailing built form. The development is not significantly greater than the prevailing built form of the immediate area, and is generally consistent with the maximum height in the schedule to the zone. We therefore believe it would be reasonable to expect a building of this general height and scale in this area on this site.
Secondly the architectural style changes between the Toorak Road façade and the interface to Dalriada Street. The architectural style of the façade to Dalriada Street is consistent with the classic architectural style commonplace in Toorak, from smaller blocks of apartments to the largest of mansions. It is also highly consistent with architectural style of dwellings abutting Dalriada Street. Nearby No.2 Lansell Road, evidently designed by the same architect, is typical of this style. The building does not break any new ground architecturally, which is a positive feature as its style and form readily fit into this neighbourhood.
We are persuaded by Ms Heggen's suggestion that some additional brickwork should be provided lower levels most visible from the dwellings north of Dalriada Street to further articulate these levels, as illustrated on a revised elevation tabled at the Hearing. It will be a condition of this decision.
Thirdly we cannot agree that the limited views of the two top floors from the dwellings to the north or the shared open space would be so imposing to be out of place. We think the upper levels would be peripheral in views from within the two west facing habitable rooms of no.5/4 Dalriada Street. Furthermore the proposed built form would be a substantial distance from the new building and would be screened by existing and proposed landscaping.
We believe the review building has been designed with consideration of its possible visual bulk and has sought to diminish this through upper level setbacks, narrowing of the elevation to Dalriada Street and the provision of medium height canopy vegetation.
Finally we consider the proposed landscaping will moderate the building. The landscaping along the north boundary would comprise a mix of Manchurian Pears and Crepe Myrtles to a height of 7 to 8 metres. At that height the landscaping would largely screen the lower two floors and parts of the second floor[20]. Mr Wyatt strongly resisted suggestions that greater setbacks would strengthen a landscape setting for the building as greater depth of planting does not add additional screening.
The responsible authority and the respondents say the proposed landscaping along the north boundary be unduly constrained by a drainage culvert along the boundary and by the proposed setbacks. Mr Wyatt says there is sufficient soil depth and width to enable the trees to grow. He is satisfied the roots would be very unlikely to intrude into the drains and sewer. Few tree roots extend lower than 0.3 metre and he has chosen species that will find nutrients in the shallow ground levels, including under Dalriada Street. He says the drainage culvert does not constrain the proposed landscaping.
The respondents say a lilly pilly would be a more appropriate plant species. Mr Wyatt says that would be an unsuitable species as its berries and leaves would cause litter and stains and would detract from the amenity of the courtyards. He also recommends deciduous species that would provide solar access in the autumn/winter months.
We consider the proposed fencing and landscaping would provide screening that is appropriate in this context, given the separation distance of the nearby dwellings, the orientation of sensitive secluded open space and habitable rooms and the prevailing vegetation.
In summary, we find the northern façade of the proposed building would comprise a visual height, scale, massing and landscaping that is acceptable in this context and consider it would not comprise unacceptable visual bulk.

[73]

Dalriada Street presently carries approximately 48-54 vehicles per day generated by residents of abutting properties and users of the tennis courts[24]. Mr Shafer thought the traffic counts understated the traffic volumes as they were conducted in school holidays. Mr Walsh's evidence is the traffic on Monday 7 April, being a holiday, was actually higher than it was for the school days in the preceding week.
It is proposed residents parked in the lower basement could enter or leave via Toorak Road or Dalriada Street. Visitors to the dwellings and staff and visitors to the church and parish facilities would access and egress only via Toorak Road. Barriers would be installed between the upper and lower basements to prevent staff and visitors using Dalriada Street.
Mr Shafer and the respondents who reside on the north side of Dalriada Street consider additional traffic in Dalriada Street to be unacceptable. They prefer there be no traffic access to Dalriada Street, effectively reducing traffic levels as traffic generated by the tennis club would cease. Mr Shafer says the responsible authority has long opposed additional vehicle access to Dalriada Street and this position should be continued.
Mr Walsh says each dwelling would be likely to generate four vehicle movements per day, generating a total of 140 vehicle movements per day. Mr Walsh thought this traffic would be split evenly amongst eastbound and westbound along Toorak Road and northbound along Lansell Road (ie one third each or 45 trips in each direction). He estimates the traffic in Dalriada Street would increase by 45 trips per day. Typically ten percent of trips occur in each of the peak hour periods, hence traffic in Dalriada Street would increase by four to five trips in each peak period, or one movement each twelve minutes.
Mr Walsh thought that Toorak Road could operate if access to Dalriada Street was refused, but considered such a ban to be unnecessary. He also considers the decisions of former councils to be immaterial to the assessment of the impacts this development might have on the street and abutting properties.
We accept an additional 45 trips per day would double the existing traffic level in Dalriada Street. The change would increase traffic over a fourteen hour day from 3.5 movements to six to seven movements per hour. We are not persuaded the likely additional traffic would adversely affect the capacity of Dalriada Street or pose an unacceptable risk to pedestrians. We come to these findings for the following reasons:
- The section of Dalriada Street west of the proposed accessway is 5.5 metres wide and is suitable for two way traffic.
- It is a straight road with no obstructions that obscure views.
- It already contains two speed control devices between Lansell Road and the proposed driveway to the review site to reduce vehicle speeds.
- Only three other properties, being no.2 Lansell Road and no.5 and no.6/4 Lansell Road have direct access to Dalriada Street.
- Few properties further north and east rely on Dalriada Street for vehicle access, so the traffic levels from these properties is low. We have no basis to expect these properties are likely to generate substantial traffic increases in Dalriada Street.
- Council's traffic engineers had no objection to the proposed access to Dalriada Street for resident vehicles. No expert traffic evidence was provided to suggest Dalriada Street could not accommodate additional traffic.
- Mr Walsh considers this increase to be acceptable and within the traffic levels contemplated by clause 56.06-8 for either an accessway or an access place.
- We consider that residents in No.4 Lansell Road would notice little change given the very low level of traffic.
- Only local residents will use Dalriada Street and they will quickly become familiar with conditions and drive accordingly to minimise risks.
- There is no record of accidents.
- Dalriada Street does not connect high activity destinations.
Mr Shafer says the development should be set back from Dalriada Street to enable it to be widened. He says he was required to contribute land at the front of his property at no.1 Dalriada Street four decades ago. As a matter of consistency and fairness, he says this development should make its own contribution to widening Dalriada Street.
It follows from the above reasons we are also not persuaded the north façade of the development needs to be further set back to enable Dalriada Street to be widened. We consider the decisions of the then City of Prahran to provide for the widening of Dalriada Street and to prevent access to the early learning centre to be immaterial to this review.
We have to assess this proposal on its particular merits. We see no traffic capacity or safety reasons to require land to be set aside to enable Dalriada Street to be widened due to this proposal or to prohibit access.

[74]

The review site presently has two 3.5 metre crossovers to Toorak Road configured to be entry only and exit only. Motorists can presently make a right hand turn into the site but exit turns are restricted to left turn only.
The existing arrangements would be replaced by a 6.1 metre crossover to the lower ground floor basement. This crossover would be located at the east end of the property frontage. A second 6 metre wide crossover would be provided approximately 31 metres from the western boundary. This crossover would provide vehicle access to four parking spaces in the front setback. We understand this access and parking is to be primarily used by people with disabilities, special guests and for events such as weddings and funerals.
Toorak Road presently carries approximately between 1,958 and 1,760 vehicles in the morning and evening peak hours respectively. Trams operate along Toorak Road providing six to eight westbound services in each of the peak hours.
The responsible authority, on VicRoads' directions as the referral authority, proposes to impose conditions that would prohibit right hand turns into the eastern driveway. VicRoads says the right turn movements into the site should be prohibited to not obstruct westbound trams on Toorak Road. The permit applicant accepts the conditions provided they can seek VicRoads' written consent to vary the condition.
Mr Walsh says all turns should be permitted from both crossovers. He estimates the proposal would generate one additional right hand turn manoeuvre into the site in the morning peak and three manoeuvres in the evening peak. There is one westbound tram every seven to ten minutes. He concludes the one to three additional right turn manoeuvres into the site should not interrupt westbound tram operations. Importantly people would be likely to turn into Lansell Road and then Dalriada Street if they are prevented from turning directly into the site. The turns will occur; it is a matter of where along Toorak Road.
We concur with his assessment and consider the few additional manoeuvres should not interrupt a tram service that operates on a seven to ten minute frequency.

[76]

The proposed dwellings are described by the parties as generous dwellings. Of the 35 dwellings, nine comprise two bedrooms, the remainder have at least two bedrooms and a study. The dwellings have generous family and dining rooms and multiple bathrooms.
All dwellings would have adequate private open space located adjacent to a living room. All habitable rooms would have natural light and ventilation. The building would have a clearly identifiable entry to Toorak Road and mailboxes would be located near that entry. Storage cages would be provided in the basement and rubbish collection rooms are located on each floor. All floors and the basements are accessed via lifts. Each dwelling would have two car parking spaces in a secure basement.
This would be augmented by the site's convenient access to public transport along Toorak Road and the adjacent church and the parish facilities within the building. Residents would also enjoy convenient access to Toorak Village neighbourhood activity centre, Chapel Street shops and restaurants, and the Yarra River recreation trails.
In general the parties agreed the apartments would provide very comfortable accommodation. Some criticisms were by the responsible authority and the respondents regarding the amenity to be provided to future residents. The concerns include:
- the length of the corridor between the main entry and the dwellings near Dalriada Street and the lack of natural light and external views from the corridor
- the absence of pedestrian access to Dalriada Street
- internal overlooking of private open space and habitable rooms
- limited natural light that might be available to the kitchens in some dwellings
Concerns were raised by the responsible authority regarding internal overlooking. The open space areas of dwellings GL01-LG04 could be overlooked from the balconies of dwellings G05-G08 above. We think this to be a limited concern as much of the lower balconies are directly below the terraces above, and only 3 metres would be subject to views. We think the extent of overlooking would comply with standard B23 of clause 55.
The open space courtyards and habitable rooms of dwellings 104, 105, 107 and 112 may be subject to overlooking from the dwellings above and in the opposite tower. We note the rooms affected are bedrooms, there are landscape screens between the apartments, and all living rooms have dual outlooks. We therefore think that their privacy can be managed from within the apartments and screening is unnecessary.
With regard to a secondary pedestrian entry to/from Dalriada Street, the applicant says such access would be contrary to the security expectations of the likely residents. They strongly oppose a secondary access from Dalriada Street as it could not be staffed or supervised. They say the access is unnecessary as there are no key destinations north of the review site. They also say pedestrian access would need to provide disability access complaint. Given the topography of this part of the land, it would require a significant redesign of the northern part of the development and the proposed landscaping, all to provide access that is not required for the development and likely to be seldom used.
They have no objection to pedestrian access being provided to Dalriada Street between dwelling LG04 and the early learning centre. This access would enable pedestrians to conveniently access the church, the early learning centre and the parish facilities from properties north of Dalriada Street and Lansell Road. It would not provide unsupervised access to the retirement village. We consider this would be an acceptable arrangement. We do not think so many pedestrians would use this link to make the shared pedestrian/vehicle use of Dalriada Street unsafe.
We think that the corridor is acceptable as people would spend limited time within it and when inside their dwellings they would enjoy a high level of amenity. It is reasonably wide and is punctuated by a wider section that will provide visual relief and possible seating areas. This is not a fatal flaw.
The kitchen benches and work areas are more than 10 metres from the facades to the living rooms in dwellings LG02, LG03, G01 and G09. We think this is acceptable as these dwellings have wide family rooms and floor to ceiling windows to the balconies, so light would extend to the kitchens.
We find the internal amenity of the dwellings would be acceptable.

[78]

Several other matters were raised in submissions that have not been determinative in this review. These include shadow on a stained glass window, loss of community facilities, devaluation of property values, noise from residents using balconies, noise during construction, waste collection and flooding.
We inspected the stained glass windows on our accompanied site visit. We think the windows in the north and west walls would not be affected as the shadows cast by the development on the equinox would not extend to a sufficient height on the church wall, even early in the morning. It would have no effect on the window in the east wall adjacent to the main entry to the church. That window is overshadowed by the existing sacristy. Furthermore the windows have no recognition in the heritage overlay or planning policy as being significant or required to be free of shadow.
With regard to property values, the Tribunal has consistently noted this is not relevant to a planning decision and we have not considered this matter.
With regard to noise from residents, we note the proposal before us would be mostly occupied by retired and aged residents. They would be most unlikely to disturb the neighbours; indeed the reverse is likely.
Noise during construction can be managed through a construction management plan imposed by conditions. Waste collection can also be managed through a waste management plan to be approved by Council.
With regard to possible flooding we accept the submissions of the responsible authority and the applicant that the development would improve the drainage infrastructure and so address any existing problems. We note Council as the responsible authority for the special building overlay is satisfied with the response to overland flow paths. We are satisfied drainage can be addressed through permit conditions.
With regard to the loss of community facilities, we concur with the submissions of the applicant and responsible authority. The facilities are privately owned and the owner has no obligation to provide them indefinately. They could be closed and removed at any time. The proposal strengthens community life by providing alternate and better parish facilities.
Ms Heggen confirmed the officer who prepared the planning assessment report for Council is now employed by her. Mr Shafer says this diminishes Ms Heggen's independence. We accept Ms Heggen's evidence to be independent as she authored the report, set out her assessment and has been subject to cross examination to test her views.
The responsible authority prepared a draft permit preamble and draft conditions. The permit preamble provides for a retirement village, however the draft condition 15 seeks to limit occupants to people aged over 55 years, persons who are partners of a person aged 55 years or more, or whose partner was 55 years and a resident when deceased.
The applicant noted in the discussion of draft conditions this approach would be more onerous and inconsistent with the Retirement Villages Act 1986. That Act provides the majority of residents must be retired. The applicant requests any permit be consistent with that Act.
In _Central Estate Pty Ltd v Manningham CC and Or**[25]**_s the Tribunal determined it is desirable there be uniformity in approach under different legislative regimes. We consider the permit should refer to the Retirement Village Act 1986 for consistency. Further planning approval would be required to use this development as multi dwelling development.
None of the above matters are determinative in our decision or have influenced us to make a contrary decision.

[82]

The positive features of this development are (in our descending order of significance):
- Provision of more diverse housing choices for aged people.
- Tempered architectural design that is respectful and subordinate to St Peter's Church.
- Improved community facilities available to the parish.
- Increased vegetation on the land and protection of trees on adjoining land.
- Improved management of overland stormwater.
- No adverse amenity impacts on neighbours evidenced by a high level of compliance with quantifiable standards of clause 55.
- Accommodates its own parking on the site without relying on Toorak Road or local streets.
- Does not impose unreasonable traffic burden on local streets.
- Provision of improved community open space between the church and building.
- Sustaining an ongoing place of worship and community hub is a relevant positive feature.
- Efficient use of a rare opportunity in the inner city to develop aged care housing.
- Opportunities for active aged people to use public transport.
- Retention of generous views of the north face of a local landmark.
- Generates funds to be used for the maintenance and restoration of St Peter's Church.
We give limited weight to the contribution from the development to maintenance of the heritage fabric of the church. We accept this is a benefit, but in our view the other benefits make it acceptable without relying on the restoration works.
The negative features of this development would be (in our descending order of significance):
- A change to the streetscape of Dalriada Street.
- Visual bulk impacts to several habitable rooms and shared open space of two dwellings on the north side of Dalriada Street.
- Increased surveillance of the shared open space on the north side of Dalriada Street.
- Loss of a heritage building that is of limited significance to the heritage place.
- Minor overshadowing of windows of no.587 Toorak Road.
- Reduced views of the church from Dalriada Street and from one dwelling to its northeast.
- Additional traffic in Dalriada Street.
We think this proposal contributes many benefits to the Toorak and wider community. In so doing we think it contributes to making Toorak a more sustainable and resilient community. Not only does this development provide more benefits, we think they are important benefits.
By contrast we think the adverse outcomes of the development have limited impact and importance. We are not persuaded the new built form in the streetscape in Dalriada Street would be unduly uncomfortable or out place in the prevailing context. We consider the loss of a heritage building of limited heritage value to be acceptable weighed against the many benefits above. We have not been persuaded the changes to traffic, greater surveillance of shared open space or reduced views of the north end of St Peter's Church to be significant or important. We consider the development fits reasonable expectations for the site. We consider when all the aspects are considered and assessed, the positive aspects outweigh the negative outcomes. In our view its is an acceptable use and development of the review site.

[112]

Except for the priest of the St Peter's Church Parish, the retirement village may only be used for the purpose of a retirement village and the majority of persons residing in the development must be retired persons as defined in the Retirement Villages Act 1986 .
No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
The land may not be used for functions or events outside of those which would be ancillary to the primary Church, Kindergarten and Retirement Village use of the land unless any required planning permit is granted by the Responsible Authority.
Prior to the commencement of any building works the owner must at their cost relocate the Council drain currently within the property to the satisfaction of Council. Prior to relocating the drain, detailed engineering plans prepared by a suitably qualified engineer are to be submitted to and approved by Council Infrastructure Department showing the relocation of the Council drain to the satisfaction of Council. These plans must be generally in accordance with the plans and engineering reports submitted to the Responsible Authority prior to the VCAT Hearing in May and June 2014. When approved, the engineering plans will be endorsed to form part of the permit. The drain must be constructed in accordance with the approved plans under the supervision and to the satisfaction of Council's Infrastructure Unit prior to the commencement of any other building works or excavation on the site.
A clear overland flow path of at least 3.0m wide must be provided with no obstructions or changes in surface levels that would unreasonably prevent the passing of floodwater, to ensure that all flooding that enters the property is directed clear of the existing and proposed buildings and through to Dalriada Street. This overland flow path must be graded to the rear of the site to facilitate this flooding passing through the site.
Prior to the occupation of the building, including relocation of the Council drain, the land owner must at their cost organise and register the creation of a drainage easement in favour of Council over the relocated Council drain to the satisfaction of Council. The easement must be a minimum of 3 metres wide, or as agreed by Council and this surface must be provided as an overland flow path in accordance with Condition 21.
All fences at the front and the rear of the site must be such that flooding can pass through the fences without unreasonable obstruction.
The basement must be fully protected from flooding to a level that is 500mm above the applicable flood level. The basement entrance must be protected by means of an apex to prevent flooding entering the basement to a level that is at least 500mm above the back of the footpath in Toorak Road at the centreline of the vehicular crossing and ramp.
All openings, vents, windows and doors must be at least 500mm above the abutting finished surface levels to provide protection from flooding.
The owner must at their cost provide an on-site detention system to restrict runoff from the subject site to no greater than pre-development levels to the satisfaction of Council.
The drainage system for the basement must be isolated from the internal drainage to ensure there is no surcharge associated with flooding back into the basement.
Before the development starts, a report for the legal point of discharge must be obtained from Council. A drainage design for the development must be prepared by a suitably qualified Engineer in accordance with the report prior to a building permit being issued.
Except with the written consent of the Responsible Authority, the level of the footpath in Toorak Road and the level of Dalriada Street must not be lowered or altered in any way to facilitate access to the site or for any other reason.
Prior to the occupation of the building, privacy screens designed to limit overlooking as required in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
All plant and equipment (including air-conditioning units) shall be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority
All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
The crossover must be constructed to Council's Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority.
Prior to the issue of occupation of the development, any existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holder's cost to the approval and satisfaction of the Responsible Authority.

At a glance

Court

Decision date

Source

Judgment (137 paragraphs)

Roman Catholic Trust Corporation v Stonnington CC [2014] VCAT 830 (11 July 2014)

Parties