San domenico Pty Ltd v Stonnington CC [2013] VCAT 1907

After a short break at the conclusion of the hearing, I gave an oral decision to set aside Council's decision and to grant a permit. Reasons were given and the following is a record of those reasons.
The issues in dispute in this case are relatively confined. Despite an officer recommendation to support the development, Council refused it on a single ground concerning excessive height and adverse impacts on dwellings to the south. A number of neighbours have supported Council's refusal but are also concerned about overlooking, overshadowing, lack of parking and traffic issues. Having heard submissions and evidence, and read statements of grounds, I am satisfied that the proposal depicted on the substituted plans is acceptable having regard to planning policy, planning controls and the specific site context.
The proposal involves adding three additional floors to an existing commercial building on a site that abuts a road and two laneways. As such, the site context is somewhat unusual in that the land is positioned behind the commercial properties fronting Toorak Road but is separated from them by a narrow 3.1 metre wide laneway. The review site and adjoining properties to the west and east are developed for commercial buildings and are separated from the residential areas to the north by Station Street, a narrow road aligned parallel to Toorak Road and located between Caroline Street to the west and the railway reserve to the east. Station Street forms the northern boundary of the Business 1 Zone and the DDO7 applying along Toorak Road. DDO7 and the related Clause 22.19 are interim controls but form part of the planning scheme and must be taken into consideration.
I note that at State policy level the site is within the Prahran, South Yarra and Windsor Principal Activity Centre and that local policy at Clause 21.04 includes this section of Toorak Road within a Group 3 Large Neighbourhood Activity Centre. There is a clear theme in all the relevant policies that more intensive residential development will be focussed in and around activity centres, close to public transport, employment and other urban facilities and that Principal Activity Centres are at the upper end of that intensification.
Clause 22.19 is policy for the Prahran, South Yarra and Windsor Activity Centre. Amongst other matters it divides the activity centre into three precincts with the northern part including this section along the Toorak Road strip within Precinct 3. The vision statement for Precinct 3 is as a transformed employment, living and tourism hub founded on high quality, integrated public transport and pedestrian links, convenient neighbourhood and distinctive shopping and attractive networks of streets and spaces. Acknowledgement that the redevelopment of the Forrest Hill precinct and nearby Cremorne and Church Street precincts will change the dynamics of South Yarra. The policy is to be read in conjunction with DDO7 and Clauses 54 and 55 where applicable.
The DDO7 also identifies three areas for change - substantial, moderate and limited. The review site and the adjoining Business 1 zoned properties bounded by Caroline Street, Avoca Street, Station Street and the east-west laneway between Caroline and Avoca Streets is the only area designated for limited change anywhere along the western end of Toorak Road. DDO7 also specifies preferred maximum building heights. Along the western end of Toorak Road the preferred height is 19 metres, other than in the limited change area where no height is specified. Importantly, in this case where height is of such concern, the commentary about built form outcomes is quite limited and makes reference to change in accordance with the preferred future character of the area. Under the heading Building Design there is discussion about providing a sensitive transition and interface in terms of built form, scale, setbacks, overlooking, overshadowing and landscaping where land is used for a dwelling or within a residential zone.
The properties immediately around the review site are already undergoing significant redevelopment and buildings of 4 to 6 storeys exist or have been approved within the Business 1 Zone on the north side of Toorak Road. Importantly, even the sites along the north side of Station Street in the Residential 1 Zone either contain taller built form of 4 storeys or have approval for buildings of a height comparable to the building proposed on the review site. The residential areas further north in Caroline and Avoca Streets contain many 3 and 4 storey apartment style developments and, although some single dwellings exist, this is not a typical low rise suburban area.
On balance, I consider that the proposed building does represent a modest or limited degree of change and that at a height of 5 storeys it will be broadly consistent with the height and scale of existing and approved buildings in this part of the activity centre. I also consider that it provides a transition between the business and residential areas, not only in built form terms, but also in land use terms because it introduces a residential use along the northern edge of the Business 1 Zone.
Adverse amenity impacts caused by unreasonable overlooking and overshadowing were matters raised by both Council and neighbours. In the case of Council it was to the Longford Apartments under construction to the south. All windows on this elevation of the proposed building are highlight windows and provide an acceptable level of privacy between the two buildings. In the case of the properties to the north of Station Street, all windows and outdoor areas are beyond the '9 metre separation test' set out in the planning scheme. In the case of No 58 Caroline Street that distance is approximately 50 metres. Satisfying the 9 metre test does not mean that overlooking won't occur. My inspection confirmed that there is already potential for longer distance viewing between the Longford Apartments and the secluded areas of No 58 Caroline Street and I can understand why Ms Kennedy and other residents living further north are worried about loss of privacy. However any overlooking beyond 9 metres is deemed to be acceptable based on the consistently applied criteria in the planning scheme.
The only potential for unacceptable overshadowing is to the south to the dwellings in the Longford Apartments. This matter was subject to considerable discussion and revised shadow diagrams were prepared reflecting the correct floor levels of the Longford Apartments. I consider that the substituted plans with additional southern boundary setbacks have made a significant improvement to the amount of shadowing compared to the plans considered by Council. Based on the revised shadow assessment, only 3 of the 18 north facing apartments will not receive sunlight at the equinox. In other circumstances that may not be acceptable but this is a case that raises the concept of equitable development - a matter raised by Mr Biles on page 4 in his written evidence. The Longford Apartments have been built right up to the laneway boundary without any attempt to provide setbacks on that site to safeguard amenity should the review site or other nearby sites be redeveloped for taller buildings. I agree with Mr Townshend that the location within an activity centre and in a Business 1 Zone also influences what might be deemed reasonable or acceptable amenity expectations. I consider it unreasonable that the review site should bear 'the cost' of safeguarding the residential amenity of a development where no attempt has been made to provide some protection itself through boundary setbacks.
I lastly want to deal with traffic and parking. Council did not raise any concerns with these matters. I note that the application meets the Clause 52.06 parking requirements except for a shortfall of one visitor car space. I have commented on car parking provision many times in other cases including in VMR Property Investments Pty Ltd[1] where I made the following remarks:
1. I fully understand Mr Brygel's concerns about traffic and parking congestion and such opinions are commonly raised in Tribunal hearings by residents living in the inner parts of the metropolitan area. It may be very obvious, but it is worth noting that ever increasing traffic volumes have been a feature of our society since motor vehicles first used our roads last century. Government policies aim to reduce our dependence on motor vehicles by, amongst other things, encouraging new development into areas already well served by public transport and by trying to better match housing and work places. I also consider that the proximity to excellent public transport services (train station and tram routes within a few minutes walk or outside the site) and commercial centres within easily tram or walking distance will encourage residents to leave their cars at home, thereby reducing traffic movements even further than would be expected if the site was more remote from such facilities. Rejecting new development on sites such as the one on the review site because of a relatively slight shortfall in on-site car parking or potential for increased traffic congestion does not mean that the traffic situation will improve or stop getting worse. Allowing new development on sites such as this, located so close to public transport and in areas where people can readily access jobs, education institutions and other facilities, may eventually encourage a slowdown in the growth of traffic volumes. I accept that it may be an optimistic and long term outcome, but it is one that planning policy seeks to achieve. It is also an outcome that has recently gained added impetus because of the higher cost of fuel and the adverse environmental impacts of utilising motor vehicles to the extent that we have become accustomed to.
Planning policy is clearly seeking to lessen dependence on car based travel. Reducing dependence on motor vehicles has three main components:
1. Providing very attractive alternative travel modes such as trains, trams and buses.
2. Locating activities so that there is less need to travel long distances so that walking/cycling become practical and appealing means of movement.
3. Providing the above are in place, discouraging people from owning motor vehicles by providing fewer opportunities for off-street car parking.
In several other cases in South Yarra I have observed that there are few other places in the metropolitan area that have such excellent access to public transport and such convenient proximity to a broad mix of activities and attractions. If we as a community are serious about reducing our dependence on motor vehicles and limiting the growth in traffic (and congestion) then a site such as this is one where a reduction in one on-site visitor car space can be supported.
Mr Gnanakone was called to give traffic evidence and he answered questions concerning the practical use of the east-west laneway. I accept his evidence that in traffic engineering terms the laneway 'can work' and that vehicles from the review site will be able to use it with minimal conflict or danger to other vehicles. I also accept his evidence that the location of the bicycle parking is appropriate.
I will therefore set aside Council's decision and grant a permit subject to the conditions discussed at the hearing.

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

San domenico Pty Ltd v Stonnington CC [2013] VCAT 1907 (14 March 2013)

Parties

Legislation Cited (2)