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

1. An amended set of plans (marked VCAT Submission and dated 25.1.13) circulated to parties by letter dated 24 January 2013 are substituted for the application plans.
2. The decision of the Responsible Authority is set aside. In permit application 0864/11 a permit is granted and directed to be issued for the land at 46A Caroline Street, South Yarra in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Buildings and works to construct an extension to the existing building for use as dwellings in a Business 1 Zone and Design and Development Overlay, and associated reduction in the number of car spaces required.

Mr Chris Townshend, SC and Mr Peter O'Farrell Barrister instructed by Best Hooper Solicitors. Expert written and oral evidence provided by:

Mr Tim Biles, Urban Designer of Message Consultants Australia Pty Ltd.

Mr Valentine Gnanakone, Traffic Engineer of Cardno Victoria Pty Ltd.

Ms Jane Kennedy for herself, Rob Sitch and Peter Chatwood.

Construction of an additional 3 floors to an existing two storey office building. Provision of 7 new dwellings in the new floors and 13 car spaces.

Cl. 34.01 (use of land for dwellings and buildings and works in BIZ).

Cl. 43.03 (buildings and works over 12 metres in height in DDO1).

Cl. 52.06 (partial reduction in on-site car parking).

I inspected the review site, No 56 Caroline Street and the locality on the morning of the second day of hearing.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. I will therefore set aside Council's decision and grant a permit subject to the conditions discussed at the hearing.

Buildings and works to construct an extension to the existing building for use as dwellings in a Business 1 Zone and Design and Development Overlay, and associated reduction in the number of car spaces required in accordance with the endorsed plans.

1. Before the commencement of the use and development three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the amended set of plans (marked VCAT Submission and dated 25.1.13) but modified to show:
   • (a) The eastern boundary wall to be further articulated through texture, colours, materials, finishes or similar to the satisfaction of Responsible Authority.
   • (b) The upper 3 levels on the southern elevation to be amended in colour and materials to create a more visible contrast which improves articulation and visual interest when viewed from the south to the satisfaction of the Responsible Authority.
   • (c) The installation of openable windows for habitable room windows on the south east elevations of apartments 1, 3, 5 and 7.
   • (d) The proposed location of the column within the parking area is to be located 250mm from the parking aisle for the 4.9m long parking bay.
   • (e) Longitudinal section to be provided from the centre line of the laneway to the parking area that shows all proposed grades, all lengths of grades and all levels. The maximum sag grade change is to be 15% and the maximum crest grade change is to be 12.5% as per the Australian Standards to reduce scraping from occurring by the B85 design vehicle or otherwise to the satisfaction of the Responsible Authority.
   • (f) Full external materials and finishes schedule as required by Condition 3.
2. The plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. A schedule of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, fences and paving, outbuildings and structures.
4. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority's consent.
5. 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.
6. The legal point of discharge must be obtained from Council and a drainage design for the development must be prepared by a suitably qualified Engineer in accordance with that report prior to a building permit being issued. The drainage must be constructed in accordance with the Engineer's design.
7. The level of the footpaths and/or laneways must not be lowered or altered in any way to facilitate access to the site.
8. The car stacker unit must provide one (1) car space for the office use which is independent of the remainder to the satisfaction of the Responsible Authority.
9. Before the development is occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed to the satisfaction of the Responsible Authority.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced with an all-weather sealcoat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority.
   • (d) Drained and maintained to the satisfaction of the Responsible Authority.
   • (e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority. Parking areas and access lanes must be kept available for these purposes at all times.
10. Before the development is occupied, the car spaces must be made available for use at all times. No fees may be imposed for the use of the spaces, to the satisfaction of the Responsible Authority.
11. The car parking areas, access lanes and driveways must be used for no other purpose and be maintained at all times to the satisfaction of the Responsible Authority.
12. Before the development is occupied, any exposed walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
13. 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.
14. Adequate provision must be made for the storage and collection of wastes and recyclables within the site before the development is occupied. This area must be appropriately graded, drained and screened from public view to the satisfaction of the Responsible Authority.
15. The collection of wastes and recyclables from the premises (other than normal Stonnington City Council collection) must be in accordance with Council's General Local Laws.
16. All plant and equipment (including air-conditioning units) must be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties (including from above) and must 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, all to the satisfaction of the Responsible Authority.
17. External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
18. The development hereby approved must be contained within the title boundaries of the subject site.
19. This permit will expire if one of the following circumstances applies:
    • (a) The development does not start within four years of the date of this permit.
    • (b) The development is not completed within six years of the date of this permit.
    • (c) The use does not start within seven years of the date of this permit.
    • (d) The use is discontinued for a period of two years or more.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] VMR Property Investments Pty Ltd v Moonee Valley CC [2008] VCAT 1265