Victorian Civil and Administrative Tribunal|2004-01-29

Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46 (29 January 2004)

Planning and Environment List; Seven buildings comprising between two to six levels on 1 hectare of land; redevelopment of a former elderly persons facility in a Residential zone; application of policy under Melbourne 2030 to a typically suburban two storey residential context with an abuttal to three storey commercial zoned and industrially used land; Scale (height, mass and bulk), Urban Design, Neighbourhood Character and Amenity; consideration of relationship with neighbours at each edge of the site; parking generation, traffic generation; vegetation removal and landscaping considerations; internal amenity of future residents of the proposed dwellings.

27 - 30 October, 5-7, 13, 14 November, 8-9 December 2003

1. The Permit Applicant is to advise the Registrar, the other parties and the Responsible Authority in writing, within 14 days of the date of this interim decision, whether it intends to lodge amended plans in accordance with the opportunity and leave hereby given, and in accordance with the Tribunal's summary of recommended plan modifications (`the notification date').

2. Within sixty days of the notification date, the Permit Applicant must complete any modified plans (`the completion date').

3. Within seven days of the `completion date', the Permit Applicant shall file with the Tribunal and serve on the parties' legal representatives and the Responsible Authority as follows:

(a) fully detailed plans of A1 size and of A3 size, drawn to a scale of 1:200, showing any and all modifications;

(b) an accompanying letter pointing out each modification made;

(c) one such copies of each A1 size and A3 size are to be served on the responsible authority (`the Council') for its own use; and

(d) two such copy of each A1 size and A3 size are to be served on the Council to be made available to those parties not represented by Mr Paul Connor;

(e) three such copies of each A1 size and A3 size are to be served on Mr Paul Connor for the parties he represents;

(f) one such copy of A1 size and two such copies of A3 size are to be filed with the Tribunal.

4. The date by which the Applicant must complete service in accordance with the foregoing direction is the `the circulation date'.

5. The Applicant must file with the Tribunal within seven days of the `circulation date', a statement of service evidencing its compliance with these directions, together with a copy of the form of letter and any other document sent with it.

6. Within 21 days from the circulation date the respondent parties, including the Responsible Authority, must give notice to the Tribunal, the Responsible Authority and the Permit Applicant of their comments on the modified plans.

7. In addition, within 21 days from the circulation date, the Responsible Authority must also circulate to all parties and to the Tribunal, its proposed conditions which respond to the new set of plans. Comments by all parties on the council's proposed conditions will be considered at the hearing.

8. The Permit Applicant's modified plans will be dealt with at a one day hearing of this application before Presiding Member Marsden and Member Komesaroff.. The Applicant shall advise the Registrar of the `circulation date', so that the re-fixed date is listed not less than four weeks after the circulation date.

9. The Tribunal will then review all of the material and make its formal determination.

10. If the Permit Applicant finds this course unacceptable, the Tribunal will disallow the appeal and direct that no permit is to issue.

11. Any party is at liberty to apply to the Tribunal to have the appeal reconvened after appropriate notice to all other parties.

Ms S Brennan of Counsel by Direct Brief appeared for Stonnington City Council and called the following witnesses to give expert evidence:

* Mr Andrew Rodda, Town Planner, of Contour Consultants Aust Pty Ltd

Mr Paul Connor of Counsel, by direct brief appeared for the Malvern Preservation Group and called the following witnesses to give expert evidence:

* Mr David Hansen, Town Planner, of Hansen Planning Services

* Mr Peter Harrison, Horticulturist, of Peter C Harrison Pty Ltd

* Mr N R Symons, Traffic Engineer, of Ratio Planning and Development Consultants

Messrs Bruce Miller of counsel, Michael Palmer, Grant Stevens, John Palfreyman and R Wiggins appeared in person.

Mr Ian Pitt, Senior Counsel, of Best Hooper Solicitors, appeared for the Permit Applicant and called the following witnesses to give expert evidence:

* Mr Des Grogan, Traffic Engineer, of Grogan Richards Pty Ltd

* Mr Greg Tucker, Traffic Engineer, of GTA Consultants

* Mr Phillip Borelli, Town Planner, of SJB Planning Pty Ltd

* Mr Andrew Olszewski, Urban Designer, of Urbis Consultants

* Mr Rob Galbraith, Arboriculturist, of Galbraith and Associates

* Mr Michael Stokes, Landscape Architect, of Tract Consultants Pty Ltd

1. This was an application under section 77 of the Planning and Environment Act 1987 to review a decision by the City of Stonnington to refuse to grant a permit (in Application No. 0184/03) for the land at 14-16 Elizabeth Street, 6-10 Warner Street and 10A Ashley Grove, Malvern to be used and developed for the purpose of seven buildings housing 177 units.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Pitt SC requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

3. Copies of the revised plans had been forwarded to all parties prior to the hearing, detailing the changes and outlining the Permit Applicant's intention to seek approval for their substitution. These plans were:

TP1-13, TP17 (Amended basement plans) circulated under cover of correspondence from Best Hooper, Solicitors, dated 17-9-2003.

4. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested

5. The site is irregular in shape with three street frontages, those being:-

6. The southern boundary of the site is located 40m from Malvern Road and adjoins the rear boundary of several commercial/industrial properties with frontage to that road. Its Elizabeth Street frontage commences approximately 100m from Malvern Road. In all, the land has a total area of 10,044m2. It falls approximately 6m from the west to the east.

7. Save for No. 16 Elizabeth Street (which contains a recently purchased single dwelling), the site has been occupied by the Malvern Elderly Citizens Welfare Association (hereafter MECWA) and used as accommodation for the elderly. It comprises a number of separate buildings ranging in height between 1 and 3 storeys. Vehicular access to the land is provided from both Elizabeth Street and Warner Street.

8. Prior to the occupation of the land by MECWA in 1958, Warner Street ran through the site in an east-west direction, connecting Meredith Street to the east with Elizabeth Street to the west. The portion of Warner Street traversing the review site was formally discontinued around the time when MECWA first commenced its operations.

9. The site presents a high brick fence along the Ashley Grove frontage. On Elizabeth Street, the site comprises a single storey dwelling at No. 16, and a two storey 1960's flat-type building formerly operated by MECWA. This building is set back 6.5m to 8m from the front boundary. A driveway provides access to several car parking spaces which form the southern portion of the Elizabeth Street frontage. Warner Street (to the east) provides vehicular access to an open lot car parking area and undercroft spaces which lie beneath a building formerly used as nursing quarters.

10. The following description of the neighbourhood appears in the officer's report presented to the Council on 21 July 2003, the date on which the Responsible Authority considered this application:-

Abutting the site to the south on Elizabeth Street are 12 and 12A Elizabeth Street. This site was subdivided and now contains a dual occupancy. Both these dwellings have their garages on the discontinued section of Warner Street with access rights over this part of the subject site. Both these dwellings are two storeys in height.

Abutting the southern boundary of the site is a series of one, two and three storey buildings with frontage to Malvern Road. These are built to the front and side setbacks with 1283-1295 Malvern Road having between 3 to 5m setbacks from the shared boundary. The northern walls of these buildings have windows with an outlook to the subject site.

Urban Land Rover (ULR) have a single storey warehouse building which extends from Warner Street to Malvern Road. This building abuts the eastern side of the subject site, on the southern side of Warner Street and is separated from the subject site by a 4m wide laneway.

The remaining eastern boundary of the site to the north of Warner Street abuts two dwellings, 12 Ashley Grove and 11 Warner Street. 11 Warner Street is a double storey attached dwelling with a light court to part of its west boundary and its private open space is located to the rear of the property. 12 Ashley Grove is occupied by a single storey dwelling with its private open space located along its west boundary.

Two dwellings abut the northern boundary of the subject site. 10 Ashley Grove abuts the eastern half and is occupied by a single storey Californian bungalow set back 3m from the subject site. This dwellings has a number of windows with an outlook to the subject site and has its private open space at the rear to the north west of the subject site. 18 Elizabeth Street is located along the western half of the north boundary of the subject site and is developed with a two storey brick dwelling set back 9m from Elizabeth Street and approximately 1.5m with the shared boundary with the subject site. The dwelling has a large deck at the rear and a sizeable private open space area. A number of windows have an outlook to the subject site.

Abutting the western boundary of the subject site are the rear yards of 12A, 10B, 10A, 8 and 6 Elizabeth Street. These are developed with two storey dwellings. 2-4 Elizabeth Street is a vacant site.

Elizabeth Street is comprised of single and two storey dwellings with some three-storey dwellings located to the north of the subject site closer to Toorak Road. Front setbacks are reasonably consistent to the north of the subject site and are consistent also to the south with the exception of 12 Elizabeth Street which encroaches into this setback.

Warner Street and Ashley Grove are tree lined streets containing predominantly single storey detached houses, with ULR comprising a large part of the southern side of Warner Street.

The area is predominantly comprised of single detached dwellings. Pitched roof forms are dominant and the area is well landscaped with multiple canopy trees. Front boundary fencing is varied with some higher solid fencing in Elizabeth Street.

Malvern Road, between Elizabeth and Meredith Streets is comprised of two storey commercial buildings. A number are of modern and simple architectural construction.

The area has good accessibility to the Malvern Road shops, Tooronga Train station, tram services on three of the surrounding arterial roads, several schools, Deakin University Toorak Campus and recreation areas.

11. In evidence given on behalf of the Responsible Authority by Mr A Rodda, a Town Planning Consultant, the proposed development is summarised in the following terms:-

The proposal involves the demolition of all existing buildings on the review site and the construction of a residential apartment complex comprising 177 apartments with associated basement car parking, landscaping and a small gymnasium.

Approval has also been sought to reduce the associated car parking requirements and to alter an existing easement on the site.

The apartment complex comprises seven individual building components, which are labelled on the Development Plans as Buildings A to G.

The nature of each building component can be summarised as follows:

s Building A is two storey construction and comprises a total of 10 apartments.

s Building B is three storey construction and comprises a total of 20 apartments.

s Building C is two storey construction and comprises a total of 16 apartments.

s Building D is three storey construction and comprises a total of 21 apartments.

s Building E is of three storey construction to the west stepping up to five storeys to the east and comprises a total of 34 apartments.

s Building F is six storey construction to the east and stepping down to three storeys to the west and comprises a total of 33 apartments.

s Building G is four storey construction to the north stepping up to five storeys to the south and comprises a total of 43 apartments.

s Basement 1 is positioned to the northern portion of the site, below buildings B and D [and contains no visitor parking].

s Basement 2 is located within the south-west corner of the site, below buildings E and F.

s Basement 3 occupies the southern section of the site, located beneath buildings E, F and G.

s A total of 227 car parking spaces are provided within the three basement areas.

12. A more detailed description appears at pages 7-10 of the Council officer's report. However, Mr Rodda's description is sufficient for the purposes of this determination.

13. The application was advertised and attracted 261 objections. In broad terms, these can be summarised as follows:-

* The design is inappropriate, excessive in scale and bulk, and foreign to the neighbourhood.

* The proposal will detrimentally affect the amenity of the area by virtue of overlooking, overshadowing, noise and obscuring views from nearby properties.

* Additional traffic in the surrounding streets will add to existing congestion in the locality.

* The removal of significant trees from the site is inappropriate.

14. The application was referred to the following Authorities:-

15. While certain conditions were advanced by these Authorities, none objected to the grant of a permit.

16. Internally the application was referred to the following Council Departments or Units:-

17. The comments of these Departments will be noted where relevant later in this determination.

18. On 21 July 2003 the Responsible Authority considered the application, the objections and a comprehensive report from the Council's Town Planning Department. That report concluded as follows:-

The MSS and applicable planning policies require that new development reflect the surrounding scale, height, density, bulk, setbacks, style, form and character of existing buildings and streetscape. The intent being to achieve a development that respects the existing neighbourhood character or which contributes to a preferred character. The proposal by virtue of its high density and excessive height fails to achieve that, and consequently, diverts from the directions set by the policy. The development is not in keeping with the character, scale, appearance and residential amenity of the area.

The MSS and a number of local policies support the development of multi dwellings. However a number of objectives require the management and resolution of any adverse impacts a development may have on the amenity of the area and specify that new development should respect the neighbourhood character. The proposal is not considered to comply with these objectives.

The size of the site, lack of encumbrances on title and convenience proximity to service provides a significant opportunity and a clean slate to redevelop taking on board a number of the positive attributes in the area such as continuing the predominant rectilinear subdivision pattern and maintaining the highly sought-after level of residential amenity characteristic of the area. The proposed development fails to do this on a number of accounts.

The development's scale, height, setbacks and bulk fail to respond to local neighbourhood characteristics. This is highlighted by the extent of the proposal's non-compliance with the neighbourhood character and its impact on the existing level of residential amenity.

The setback of the building to side and rear boundaries is, in some instances inadequate. The lesser side and rear boundary setbacks cannot be justified as the building will impact on the amenity of habitable room windows and secluded open spaces of adjoining dwellings in terms of overlooking, overshadowing and building bulk.

Although the existing MECWA development did not adhere to the predominantly single storey detached dwelling type characteristic of the area, the redevelopment of the site creates the opportunity to aspire to the higher residential amenity and standards in the area rather than eroding these further by the introduction of a new development pattern.

The development has not been designed with due consideration to the site constraints, specifically the 6m fall through the site. This has led to a number of urban design shortfalls such as basements projecting above natural ground level and the "ground floor" of some of the buildings being accessed via stairs.

Building spacing within the development will mean the buildings within the site overshadow themselves and overlooking will occur between apartments and existing adjoining dwellings.

Inadequate regard has been given to maintaining the existing established trees on the site and in doing so erodes the landscape character of the area. The provision of a TMP is a prerequisite to making a decision on the subject proposal. The use of perimeter screening planting although supported in principle is a measure used to screen the vastly different proposed built form and will further overshadow surrounding sites.

The proposal will result in a noticeable change to traffic conditions in the area. On balance however, the street network is considered to be able to accommodate this. The number and layout of the basement car park is considered to be acceptable subject to further information and recommended adjustments being adopted.

The proposed buildings are not site responsive and would not be a positive contribution to the area due to their negative impact on the amenity of adjoining dwellings and the established neighbourhood character. In light of the above, the development is recommended for refusal.

19. The Responsible Authority resolved to refuse the application on the following grounds:-

1. The proposed development is contrary to the objectives of the State and Local Planning Policy Framework pursuant to the Stonnington Planning Scheme as it does not reasonably protect the amenity of neighbouring residential properties by virtue of unreasonable visual bulk, overlooking and overshadowing.

2. The proposal does not meet the objectives of Clause 19.03 Urban Design and Built Form in that it does not reflect the particular characteristics, aspirations and cultural identity of the community, nor does it enhance the liveability, diversity, amenity and safety of the public realm.

3. The proposal does not meet the MSS objectives of Clause 21.02-6 or Clause 21.08 in that it negatively impacts the character and amenity of the established residential area.

4. The proposal does not meet the objectives of Clause 22.02 Urban Design Policy or Clause 22.06 Residential Character, Amenity and Interface Policy in that it detrimental impacts buildings within the proposed development and on neighbouring properties.

5. The proposal does not meet the Residential 1 zone objectives of providing for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households and encouraging residential development that respects the neighbourhood character.

6. The design, layout, massing and footprint of the proposed development would be incompatible with the neighbourhood character and would be detrimental to the amenity of the area.

7. The proposed development fails to achieve a site responsive outcome having regard to the significant fall in the land with projecting basement parking visible above natural ground level exacerbating the overall height of the development.

8. The proposed development is not considered to have an adequate level of internal amenity with an undesirable level of overshadowing and overlooking occurring between buildings.

9. The proposed development fails to adequately respond to site opportunities and constraints such as the existing on site and neighbouring trees by removing the majority of on site vegetation and not identifying measures that must be taken to protect trees on adjoining properties.

20. The Applicant now seeks a review of the Responsible Authority's decision.

21. Save for a small portion of the site located in its southeastern corner, the land is contained within a Residential 1 Zone. The following State Policies are relevant to this proposal:-

* Clause 18.02 Car parking and public transport access to development.

22. Pursuant to the Local Planning Policy Framework (LPPF), a number of the relevant issues are addressed in the Council's Municipal Strategic Statement (MSS). These include:-

* Vision for the City of Stonnington (Clause 21.03);

* Residential Areas Character and Amenity (Clause 21.08);

23. Relevant Local Policies include the following:-

* Residential Development in Commercial Areas Policy (Clause 22.05);

* Residential Character, Amenity and Interface Policy (Clause 22.06);

24. Apart from an Environmental Audit Overlay which applies to a small portion of land situated in the B2 Zone, no Overlay controls apply to this site.

25. The particular and general provisions of the Stonnington Planning Scheme, insofar as are relevant here, include:-

s Easements, Restrictions and Reserves (Clause 52.02).

s Two or More Dwellings on a Lot and Residential Buildings (Clause 55).

26. In assessing applications of this kind, both the Responsible Authority and this Tribunal are now obliged to consider the draft Metropolitan Strategy known as Melbourne 2030. A key initiative of that document is the need to plan and provide for a more compact city. Melbourne 2030 encourages concentration of development within or close to Activity Centres and key strategic sites located near infrastructure best able to cope with that change. Clause 12 of the SPPF sets out nine key directions that influence good decision-making. Among those key directions are the following:-

27. Consideration of "Melbourne 2030" is a mandatory requirement. Apart from explicitly recognising that the document is an important strategic planning tool, the Tribunal does not propose to add to the literature which it has already created in other decisions. On any view, Melbourne 2030 is a document which must be accorded considerable weight. In this regard, we adopt what was said by the Tribunal in O'Connell Street Developments Pty Ltd v Yarra City Council & Minister for Planning (2003) 13 VPR 247 particularly at page 259 (therein):-

No particular aspect of the Strategy itself necessarily carries greater weight than another. When considering the Strategy the Tribunal must have regard to each of the policies contained therein. In some situations there may be conflict or tension between the respective policies. In those circumstances, it will require the tribunal to balance conflicting interests. Each case will of course depend on its own facts.

28. The hearing took place over eleven days. All parties tabled and read written submissions. The Tribunal heard evidence from a number of witnesses, whose names appear at pages 3 and 4 of this determination.

29. All witnesses tabled and summarised written statements of evidence which had been pre-circulated to all parties. In most instances extensive cross-examination of the witnesses took place.

30. The Tribunal conducted two inspections of the review site and the neighbourhood, first in company with the parties and later in an unaccompanied manner.

31. We do not wish to summarise all the comprehensive submissions made by the parties. Rather, we intend to deal with the various issues raised, and discuss briefly the arguments put for and against this proposal, each within its own particular context.

32. In coming to its decision in this matter the Tribunal has carried out an extensive review of all the material put before it and has had careful regard to the submissions and evidence advanced during the course of the hearing.

33. Preparing a decision for a proposal of this magnitude brings with it a number of logistical difficulties. We propose therefore to deal with the key issues, namely those relating to built form, and traffic and parking matters. Before doing so however something needs to be said regarding the policy framework which surrounds this particular proposal.

34. It is essential that planning decisions, particularly major planning decisions, are policy-driven. Such was the intention of the planning reform that took place in the late 1990's and which led to the introduction of the New Format Planning Schemes. Thus the starting point must be an inquiry into the policy context which underpins this application.

35. In Teac Australia Pty Ltd v Port Phillip CC, Best & Ors noted at (1999) 2 VPR 241, the Tribunal had this to say about the manner in which policy should be used:-

The Council submitted that the proposal was premature having regard to the state of urban design policy for the precinct. In agreeing, the Tribunal made some extremely pertinent comments regarding policy development. As these have general application throughout the planning system, they bear repeating here:

* We agree with Mr Whitney in his approach to the consideration of policy in the context of VPP planning Schemes. We think the preferred approach is to develop an overall picture of the strategic and policy framework relevant to a particular proposal, and that it is not a correct approach to attempt a clause by clause analysis. This latter approach assumes that the complex layering of strategy and policy which is evident in the Port Phillip Planning Scheme is so coherent that it is amenable to analysis by a close examination by the minutiae of its text. It would be surprising if this complex amalgam of policy developed by different authors over different time periods achieved this degree of coherence. In VPP Planning Schemes, strategies and policies are more than ever part of planning schemes, and therefore have a statutory basis, notwithstanding this however, we believe that it would be a mistake to apply the principles of statutory interpretation to strategies and policies.

* We believe it follows from this approach that it is relevant to consider the emerging character of the area when considering proposals in this precinct. It is policy that these areas undergo extensive redevelopment. The existing character of the broader locality, in particular of those parts of the locality which are not the subject of significant redevelopment is relevant, but it is only relevant to the question of how a transition is achieved between the emerging character of the redeveloped industrial sites, and the established residential and commercial character of old Port Melbourne.

* The policy framework is not intended to be treated as creating mandatory requirements, indeed, in this case the adopted as distinct from the proposed policy framework is somewhat general. Nevertheless, under the VPP system policies are to be accorded significant weight, they are intended to inform decision making. In our view this is particularly true of policies intended to influence urban design. If it is intended to achieve a particular outcome in a particular precinct from an urban design perspective, it would require the consistent application of policy over a long time frame.

* The policy relating to this precinct is in a state of flux. We accept that a decision in this case could significantly affect the future direction of urban design policy in this precinct. We are living in a period of substantial social change. It is not just that "babyboomer" generation is ageing, there are very significant changes in the needs and expectations of the community. An important consequence of this from a town planning perspective is the change in household structures and the implications of this for housing demand and ultimately the shape of our city. An effect of this is that the social character of Port Melbourne is changing and that this change is and has been inevitable and is independent of the extensive redevelopment which has and will occur. The urban consolidation and housing policies of the SPPF directly address these housing issues and indeed these policies have been a feature of Metropolitan and State policy for many years. However at this level, policy is necessarily very general, and the Tribunal is concerned that at the local level, that is at the level of the LPPF in the new VPP planning schemes there are very few examples of positive planning solutions, instead the emphasis is overwhelmingly on controlling, managing, restraining, the incremental change arising from this social change. The preservation of those aspects of our city we value is of importance but town planning should be about the future and not solely about the past. Town planners and the community should be looking for positive solutions to accommodate these changes and not merely be reacting to a market driven response to these social changes. By contrast the identification of this precinct in Port Melbourne as a place for change directly responding to a need created by this social change is an example of positive planning and should be supported. However the process of planning for this precinct is incomplete. The Tribunal is not itself a planning authority itself and therefore in this context we believe that the existing processes leading to the development of policy in this precinct need to be further advanced before we can properly make a decision.

36. That decision was delivered several years ago. Since that time the policy framework has been expanded, particularly at State level.

37. While the Tribunal's comments were made in relation to a different municipality, they are equally apposite in Stonnington. In the present case some parties sought to rely on extracts from particular policy provisions as being determinative of the application, without regard to the wider policy matrix relevant to these proceedings.

38. For example, a key objective of Melbourne 2030 is to direct more intensive residential development towards areas within 400m of activity centres. Considerable debate ensued as to the status of the activity centre in nearby Malvern Road. For the Applicant, Mr Pitt suggested that a development of the magnitude proposed would revitalise nearby shops. A number of objectors drew attention to the fact that, despite the existence of several shops and restaurants, there was no facility that offered a significant range of convenience goods.

39. Our inspection revealed that the area along Malvern Road between Meredith Street and Tooronga Road (a distance of approximately 500m) contains two shops selling convenience goods, together with a pharmacy, a newsagency, several restaurants and other service facilities such as a hairdresser. A more extensive range of shops can be found east of Tooronga Road.

40. In line with what was said in the Teac decision, we do not believe the 400m suggested in Melbourne 2030 should be treated as some sort of immutable barrier which cannot be varied. The facilities along Malvern Road certainly provide a nucleus which will expand as the surrounding population increases in the manner envisaged by Melbourne 2030. That however is simply one fact to be placed on the scales and balanced.

41. In similar vein, the MSS expresses support for more intensive development along arterial routes such as Malvern Road. Several objectors contended that, as the site did not have direct abuttal to Malvern Road, the policy was irrelevant. Such a literal application of policy is inappropriate. Clearly the fact that the site is within 100m of Malvern Road, backs onto its commercial and industrial frontage, and is adjacent to a lively tram service are all factors in favour of allowing more intensive development on this land.

42. We mention these matters as indicative of the way in which the policy matrix must be approached. Planning decisions involve a balancing exercise wherein a number of issues must be weighed, one against the other.

43. That said, it is fair to say that none of the opposing parties suggested that the MECWA site should not be developed for medium density housing. The Council's own planning witness, Mr Rodda, expressed strong support for a significant redevelopment of the site, suggesting only that two levels should be removed from buildings F and G and one level from building E. Mr Holdsworth too acknowledged the suitability of the site for medium density housing, albeit at a less intensive level.

44. There is clear and unambiguous policy support for a significant redevelopment of this site. It has long been accepted that the social and economic costs of an ever-expanding urban fringe can neither be sustained nor justified. Consequently, better use must be made of existing urban infrastructure. Strategic planning documents such as Melbourne 2030 make this abundantly clear.

45. There is, of course, a much-publicised tension between the pursuit of urban consolidation objectives and the retention/enhancement of neighbourhood character in the suburbs of Melbourne. However, as Mr Pitt SC emphasised, no suburb is excluded from the process of urban consolidation and Malvern is no more exempt from that process than Melton or Mordialloc. As the Tribunal has repeatedly said, urban consolidation necessarily means that suburbs will change. The role of the planning system is concerned with managing that process of change. The planning system seeks development that respects neighbourhood character, not an endless repetition of what already exists. Endless repetition will not allow urban consolidation objectives to be attained.

46. It was very clear from the objectors' submissions that the local community would be satisfied if the MECWA site was redeveloped with single and two storey dwellings, even if such redevelopment was more intensive than the existing pattern of the neighbourhood. At least part of the apprehension regarding what was frequently described as "high rise development" stems from a fear that units will be tenanted, rather than owner-occupied. It needs to be said, and said firmly, that the planning system draws no distinction between the two forms of occupation. On the contrary, planning controls require that there be diversity in housing stock in order to cater for the needs of the population as a whole.

47. There is no doubt that the present proposal will increase housing diversity in the Malvern area. Dwelling stock in the area bounded by Malvern Road, Toorak Road, Glenferrie Road and Tooronga Road is dominated by three and four bedroom dwellings on conventionally sized allotments. There is little evidence of medium density housing on any significant scale. While the objectors suggested that there were a number of "dual occupancies" in the vicinity, there are clearly very few, if any instances of development providing accommodation comprising one and two bedroom dwellings. However, census data indicates that household size is declining, and a very substantial proportion of the housing market is made up of households comprising one or two persons, for example "empty nesters" and individuals who have yet to commence raising a family or who may never do so.

48. It was said against the proposal that, given the area of the site, there was inadequate diversity in the dwelling stock to be provided. Rather, the objectors contended, there should be a greater proportion of three and four bedroom "family" dwellings which, it was submitted would be more consistent with the social fabric of the neighbourhood and hence, its character.

49. There is a grain of truth in these submissions. The Tribunal has some concern that the preponderance of one and two bedroom units will provide limited opportunities for a vibrant social "mix". On the other hand, as we have said earlier, the prevailing form of housing stock in this area is the three and four bedroom family home, and the addition of some smaller dwelling units will help to balance the situation.

50. More important, we believe, is the requirement to ensure that the dwellings to be provided will offer a high level of internal amenity for future occupants. That cannot be achieved if too many units are cramped together, or have access difficulties, suffer from poor orientation or from overlooking from neighbours. We will return to these questions later in this decision.

51. Express support for higher scale development is to be found at Clause 22 of the Planning Scheme where, under the heading "Urban Design Policy", such development is directed to "large sites". It is policy that:-

s On large sites, over 0.5 of a hectare in commercial areas and 1 hectare in residential areas, in business, industrial, residential or public land zones, higher scale development be encouraged if the applicant has demonstrated satisfactorily that:

* The proposed development is consistent with the role and character of the area or will stimulate restructure of surrounding land.

* Buildings are designed to reflect and complement the built form character of the surrounding area.

* Buildings are scaled down to integrate with any abutting residential properties.

52. We will examine these three qualifications later in this decision. However, it is convenient at this point to deal with the assertion that, because the proposed buildings would be visible from distant points of the public realm, the proposal is - per se - unacceptable. Some objectors placed great emphasis on the fact that the taller buildings would be visible from various points in Meredith Street and Malvern Road at distances in the order of 120m or more. However, the reality is that only a small portion of the upper floors of Buildings E, F and G will be visible, depending on the vantage point of the observer.

53. It is also important to appreciate that pedestrians who move about will only see this small portion if they concentrate, because a combination of distance, intervening structures and trees will shield most of the height.

54. If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment.

55. In the end result, and for reasons that we will now provide, the Tribunal has decided that the development, as presently proposed, is too intensive and should be reduced in scale. Given that the hearing occupied 9 full sitting days and two part days, that evidence was heard from 15 witnesses, and that the review site offers an excellent opportunity for a substantial development, we have decided to offer the applicant an opportunity to prepare amended plans in accordance with certain broad guidelines. That opportunity does not of course mean that automatic approval will follow. However, given the resources the parties dedicated to the proceedings, the Tribunal does not believe that the applicant should be required to start again from the beginning.

56. We now turn to examine the various reasons that have led us to this conclusion.

Scale, Urban Design, Neighbourhood Character and Amenity.

57. At first glance a reader may wonder why we have chosen to link these four issues under the one heading. The reality is that, in the present case, each is irrevocably linked with the others. To separate them into individual components would be to misunderstand the real issue in these proceedings.

58. The Tribunal had before it an abundance of evidence as to the quality of the urban design approach. Mr Olszewski, for example, had carried out a comprehensive pictorial review of the proposal and concluded that it was "carefully designed to blend into its urban context and minimise impacts on the existing residential area". In similar vein, Mr McGauran observed:-

It has also been carefully articulated so that elements are broken down into smaller compositional forms and given highly three-dimensional façade treatments where they interface with adjacent development or streetscapes. Hence in my view, given the skill with which the development form has been managed and the manner in which spaces within the development and external to it continue to enjoy high quality access to sunlight and only incremental differences to their immediate circumstances I see no reason why the existing scale cannot be supported.

59. Another independent assessment was carried out by Mr Axford whose evidence addressed the visual impact of the proposal, "particularly as experienced by a pedestrian". His conclusion states, in part:-

The investigation work and subsequent modelling verify that the proposed development, stepping up to 5 storeys, would have minimal visual impacts on the surrounding area. The proposal provides a two storey character with a suitable level of architectural division to fit within the existing residential character of Elizabeth Street and Ashley Grove. The higher elements are confined to south of Warner Street which is a transitional zone to the Malvern Road frontage; and the highest element is closest to Malvern Road and well separated from the surrounding low scale housing.

It was my view expressed to the design team that a taller element (say seven stories) close to Malvern Road would be beneficial to emphasise the changing role of this centre and to act as a local landmark. I am also of the view that it is highly likely that the existing buildings along Malvern Road will redevelop over the next ten or so years, most likely to include several levels of housing above. This is a pattern identifiable in similar streets well served by public transport, such as High Street in Northcote and would in my view, be supported under Melbourne 2030.

60. Mr Olszewski, Mr McGauran and Mr Axford gave evidence on behalf of the permit applicant. Mr Holdsworth, who gave evidence on behalf of the Council, had an entirely different opinion. Having reviewed the application against the policy provisions of the Planning Scheme, Mr Holdsworth concluded:-

The proposal, in order to meet these policies, requires modification to the height, external appearance, modulation and materials of the buildings, generally to create a less monumental and more domestic appearance derived from an assessment of local residential characteristics, albeit in buildings of over two storeys.

An acceptable height for the buildings is not specified, although a maximum of six storeys is considered excessive given the predominant built form in the area and the visual impact of buildings greater than three or so storeys into the local urban context.

In order to provide high levels of amenity for occupants, it is considered that further attention needs to be paid to the interfaces of ground level apartments with nearby open space areas, particularly public spaces, to the level of privacy between apartments and to the relationship between habitable rooms and communal spaces.

61. Mr Holdsworth also criticised the high number of units which had no 'separation nook' between their entry and sole living room, as well as the convoluted manner in which pedestrians coming from Warner Lane needed to find dwellings on the west side of Buildings E and F.

62. All four witnesses are highly qualified and experienced professionals. The different conclusions that they expressed testify to the fact that this has been an extremely difficult matter to decide, and one where the opinions of the most practiced experts can legitimately differ. As can be seen, the witnesses found it impossible to separate the four key elements which provide the heading to this section of the Tribunal's decision, although we discern different conclusions as to the weight that each gave to different aspects.

63. The evidence of the town planners was equally difficult to reconcile. For the Council Mr Rodda, while acknowledging the locational advantages of the site, recommended that buildings E, F and G should be modified as follows:-

64. Mr Hansen, the objector's Town Planning Consultant, was highly critical of the entire project and suggested that it should be totally rejected. Mr Borelli, the Applicant's Town Planner, suggested that it should be approved without any modifications at all.

65. We now intend to review each building and its external interface individually. The Tribunal approaches that task from the following viewpoint:-

* We believe that there is strong policy support for more intensive development on this site (Melbourne 2030, Clause 22).

* The site's abuttal to buildings of two and three storey height along Malvern Road offers an opportunity for a much higher built form at that point. The key question is "how high"?

* The properties between Nos. 6 and 12 Elizabeth Street (most of which are of recent origins) are those most vulnerable to change and require a sensitive approach.

* The properties at Nos. 18 Elizabeth Street and 10 Ashley Grove are less vulnerable as the buildings closest to them will be of a lower height, and both sites are prime candidates for redevelopment.

* "Mere visibility" from vantage points in excess of 100m from the site is not, in isolation, a reason to reject this proposal.

* If the buildings are visible, then they should make a positive contribution to the built environment of the neighbourhood.

66. A number of the objectors criticised the manner in which these two storey units address the street. However, the Tribunal does not share this concern. Dwelling stock in Elizabeth Street, while of a relatively high and consistent standard, is extremely varied in terms of its appearance, age, genre and style. The contemporary appearance of these units, with a high degree of articulation, can comfortably be assimilated into this end of the Elizabeth Street streetscape notwithstanding that it is one block of units. It clearly presents in three different dwelling modules. Nor do these units raise any amenity issues in terms of nearby properties.

67. The units in this three level building have an east-west orientation and a minimal (2 metres) setback from the northern boundary.

68. The private open space of Units B101-104 face west and are somewhat constrained in size. The Tribunal gave consideration to re-orientating the building on a north-south axis to increase the setback and to reduce the number of units at Level 1. We note however that none of the parties expressed particular concern regarding Building B and, on balance, we are satisfied that there is no compelling reason to require alterations to it. Any reorientation would have the negative consequence of greater overlooking impact upon its northern neighbour at 18 Elizabeth Street.

69. The only criticism of Building C came from Mr Miller who suggested first that its two storey appearance would be out of character with the Ashley Grove streetscape, and second, that some units would overlook the rear yard of the property to the north. In the Tribunal's view, neither criticism can really be sustained. Any views of the building from Ashley Grove would be tangential and softened in any event by the landscaping proposed. As to overlooking, a substantial brick garage on the neighbouring property inhibits views of its rear yard. Again we are satisfied that there is no reason to require changes to Building C.

70. Building D is a three level structure built over the basement carpark. Neither the Council nor Mr Rodda expressed concern regarding this component, but the objectors were critical of the fact that a mature peppercorn tree would require removal if the building proceeded in its present form. Thus it was suggested that a redesign of the southeastern corner of Building D should be undertaken in order to preserve the tree, and to maintain an open, vegetated vista at the western end of Warner Street.

71. Again we do not agree with these submissions. Warner Lane (as the section of Warner Street beyond its present western termination point is to be known) will provide an attractive landscaped pedestrian route. The peppercorn tree, while offering a pleasant canopy, is not recognised formally for its botanical, historic or cultural significance, nor is it listed on the significant tree register. The tree is not in any way unique, and there is some doubt as to its life expectancy, Mr Galbraith pointing to fungal growth which, he stated, was likely to lead to its early demise or at least to the loss of a significant part of its crown.

72. We are satisfied that there is no reason to justify modifications to Building D.

73. Buildings E and F both run on an east/west axis. Building E has a long northern frontage to Warner Lane and rises to four levels. The distance between the balconies of Buildings D and E is in the order of 15m. On its southern elevation, Units E105-405 and F105-505 face to the east. These are small, one-bedroom units relying for their private open space on east facing balconies. In the case of F105-505, the units are set back approximately 4m from the factory walls of industrial properties facing Malvern Road.

74. In the Tribunal's view, the greatest problem with Buildings E and F arises from their height and the set back arrangements from the western boundary. Those setbacks range from approximately 2.9m in the southwestern corner of the site to approximately 4.5m in the vicinity of the existing substation. For the most part, the setback is less than 4m. The original landscaping plan indicated a 900 batter treatment at this point. On the last day of hearing Mr Stokes, the Applicant's Landscape Architect, introduced a new version, a timber retaining wall replacing the batter with a nominal 2.3m wide strip to allow landscaping, and a narrow access path along the western building line.

75. The buildings are to rise to two levels before the setback increases to between 9m and 10.25m approximately at Level 3, and approximately 20m at Level 4 (and in the case of Building F, Level 5). A sectional drawing provided by Mr Stokes indicates that, as proposed, the top of Level 2 would be approximately one storey higher than the existing MECWA building on the site.

76. It was said on behalf of the Applicant that the setback regime complied with the height and distance requirements of ResCode, albeit it was conceded that ResCode does not apply to buildings greater than 10m in height. Nonetheless, Mr Pitt suggested, ResCode offered one quantifiable means of assessing whether the setbacks were appropriate.

77. The Tribunal is of the view that the ResCode standards are of very limited assistance in assessing the suitability of Buildings E and F. In each case, the development will rise much higher (albeit with increased setbacks), and impose an additional, if more distant, barrier towards the east. It is not a matter of loss of sunlight or daylight but it raises the less quantifiable, nonetheless real impression, of a loss of outlook and the feeling of being "hemmed in".

78. The Tribunal twice inspected the review site from the rear yards of the Elizabeth Street properties. Their impressive and well maintained areas of private open space and living areas face east. The Tribunal was left with a very clear impression that the amenity of these properties would be significantly affected if steps were not taken to reduce the height of Buildings E and F.

79. We have considered various options, including the evidence of Mr Rodda that Level 4 should be deleted on Building E and Levels 4 and 5 from Building F. It is noteworthy however that Mr Rodda's suggestion did not seem to be predicated on amenity concerns, but rather on a more general concern relating to built form. Mr Rodda stated:-

My principal concern is with the height and mass of the upper most levels of each of these buildings which are well beyond the scale and height envisaged by planning policy and significantly higher than the prevailing building height in the area and than surrounding existing buildings.

80. It seems to us that Mr Rodda's suggestion is to attack the proposal with a blunt instrument when the surgeon's knife might be the more appropriate tool. His approach removes floors that are smaller than the lower floors, and have good setbacks from boundaries. We believe it preferable to achieve a decrease in height by removing a lower floor (Level 2 in each case - i.e. Units 201-208), thus maintaining the greater setbacks at the upper levels.

81. This, it should be noted, is a reaction to an amenity concern and has nothing whatsoever to do with the visibility of the buildings from distant vantage points in the public realm. Moreover, in the absence of established height and distance criteria a la Rescode, this assessment is necessarily subjective.

82. Our concerns with Buildings E and F do not stop at that point. We earlier drew attention to the configuration of Units F105, 305, 405 and 505, all of which are tucked uncomfortably into the southeastern corner of Building F. These units will not have a satisfactory level of internal amenity. We have reached the conclusion that Units 01, 02 and 05 on each level should be redesigned so as to comprise two units at each level. In this way the revised layout will offer larger units with a north-south orientation. At the same time, these modifications will achieve a better mix of unit sizes.

83. For similar reasons we consider that Units F103 and 104 should be combined into one unit. As presently configured, Unit F104 has extremely poor internal amenity with a south facing balcony and an interface with a substantial brick factory wall.

84. Because of the absence of central lift access to Buildings E & F, access to the westernmost units of those buildings is somewhat convoluted. The applicant would be wise to reconsider these arrangements during the reappraisal process.

Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46

At a glance

Court

Decision date

Source

Judgment (282 paragraphs)

Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46 (29 January 2004)

Parties