[2003] VCAT 1470

1. Within one month from the date of these directions the permit applicant, having accepted the Tribunal's invitation to do so, must file and serve amended plans, as provided for in these directions on the Tribunal and all parties to the application.

2. Any submissions which a party wishes to make in respect of these amended plans must be in writing and filed with the Tribunal and served on the permit applicant and Responsible Authority within 14 days of receipt of such plans.

3. Should the applicant wish to make a submission in reply, this must be filed with the Tribunal and served on the other parties within seven days of receipt of the other parties' submissions.

4. Following the receipt of plans, written submissions and replies the Tribunal will then proceed to finally determine the application unless it or any other party considers - and the Tribunal agrees - that the matter should be set down for further hearing.

5. The amended plans must be generally in accordance with those substituted by the Tribunal and further amended by Sheets TP1f and TP1e, tendered in the course of the hearing, but modified to show:

* consequential re-design of the east and west elevations of Dwellings 6 and 8 respectively, to ensure articulation of the walls and roof form;

* The retention only of Trees 25, 26, 29 and 32 - as numbered on the Galbraith Arboricultural Report - and the use of suitable replacement planting on the landscape plan for the front and side setbacks, including reconsideration of planting adjacent to the allegedly dying trees on the boundary at 239 Kooyong Road.

6. In preparing such amended plans consideration may also be given to:

* whether Dwellings 5 and 6 should be one dwelling up and one down or two, two storey dwellings;

* the location of the upper floor balcony to Dwelling 6 and, in the event of a one up and one down arrangement consideration may also be given to the possibility of locating a terrace within part of the area previously occupied by Dwelling No. 7, provided the terrace is set well back from the ground level below;

* revising the undercroft treatment adjoining Dwelling No. 1 in the context of it no longer being required for access;

* the internal design of the basement if the deletion of Dwelling 7 results in a reduced requirement for parking;

6. Liberty is granted to any party to apply for a variation or clarification of these directions and the Tribunal reserves the question of whether the plans should be circulated more widely than to the existing parties.

Mr Ian Pitt SC of Best Hooper Lawyers. He called the following persons to give expert evidence:

* Mr Russell Fairlie, Traffic Engineer with Ratio Consultants;

* Ms Amanda Ring, Consultant Town Planner with SJB Consultants; and

Mrs Marjorie Halls, Consultant Town Planner appeared for Mr Campbell and for Dr and Mrs Braun.

There was no appearance for any other respondent objectors.

1. This was an application under section 77 of the Planning and Environment Act 1987 for review of Glen Eira City Council's refusal to grant a permit to construct 15 dwellings on the land at 241 Kooyong Road, Elsternwick in Permit Application No. GE/PP 14808/2002.

2. The land, which has a frontage of 19.6m a depth of 70.6m and an area of 1352 sq m is located on the west side of Kooyong Road between Seymour Road and Glen Eira Road and opposite the Caulfield Community Health Service.

3. The land is presently occupied by a single storey dwelling set back 19.5m from the street. It is abutted to the north by a single storey dwelling with its garage set back 7.3m from the frontage and with a deep rear garden. All properties to the south and west, with frontage to either Kooyong Road or Seymour Road, contain two storey buildings. Two of these are single dwellings, one is an attached dual occupancy development, one is a block of 1960's style walk-up flats and on the west or rear boundary, there is the White Lodge retirement village which is also in the style of walk-up flats.

4. The plans originally accompanying the application, and which showed 15 dwellings over a basement car park for 21 cars, were amended following lodgement of the application for review.

5. At the commencement of the hearing the Tribunal formally amended the application for permit pursuant to Section 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 by substituting the amended plans for those that had originally accompanied the application. There was no objection to this amendment.

6. The amended plans provide for the construction of a two storey building comprising 11 dwellings over a basement car park for 19 cars.

7. At the conclusion of the hearing and having inspected the land prior to the hearing, the parties were advised of my decision that the permit applicant should be provided with an opportunity to further amend the plans. The reasons for my decision were given orally and what follows is an edited transcript.

8. The subject land is zoned Residential 1 under the Glen Eira Planning Scheme and is also the subject of a Development Contributions Plan Overlay - Schedule 1. The latter control was not in issue in this proceeding and I need not refer to it further.

9. Pursuant to Clause 32.01-4 of the Planning Scheme a permit is required in the Residential 1 Zone to construct two or more dwellings.

10. Decision guidelines in relation to all applications under the Planning Scheme are set out at Clause 65. The object of these decision guidelines is to produce an "acceptable outcome" in terms of the decision guidelines. As noted also by Mr Pitt, Clause 11.01 of the Scheme provides that it is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

11. The decision guidelines relevant to the issues to be determined in this proceeding are the requirements of Clause 55, that is to say, the ResCode provisions, the amenity of the area, and the State and Local Planning Policies relevant to housing. These encourage a diversity of accommodation, energy efficiency, urban consolidation, good urban design outcomes and development that respects neighbourhood character. Highly relevant to this particular proceeding are the Municipal Strategic Statement's policies for incremental change.

12. The principal issues raised in respect of this application can be summarised as follows:

* Is the provision for parking and access onto Kooyong Road appropriate?

* Is the height, design and setback of the front part of the building respectful of the existing neighbourhood character of Kooyong Road?

* What trees are worthy of retention and integration into any future development?

* Are the dwellings well designed, especially having regard to the extent of screening to bedroom windows and balconies and the absence of screening on the front and rear balconies to the open space areas below?

* Does the development constitute an acceptable outcome in terms of the local policy for incremental change and the proposed policy pursuant to Amendment C25 for minimal change; and

* Does the development impact unreasonably on the amenity or outlook of surrounding properties in particular the dwelling to the north at No. 239 Kooyong Road?

13. I was provided with no proper evidence to suggest that there would be any difficulties in relation to these issues following the changes to the access ramp design and basement layout recommended by Mr Fairlie in his statement of evidence.

14. I am satisfied that an adequate number of car spaces is provided. Indeed the provision exceeds the requirements of Clause 55 and, with the removal of Dwelling No. 7, there may be even more scope for facilities within the basement.

15. I was provided with no evidence to suggest there would be any impact on access to the community health centre on the opposite side of Kooyong Road or that there would be any difficulty in relocating the bus stop some 3 to 4m from its existing position while remaining within the frontage of the subject land.

16. At 7.65m to the façade, the frontage setback meets Standard B6 at Clause 55.03-1 of the Scheme referring to street setbacks. The two level loggia across the front façade is higher than the 3.6m suggested in the standard for encroachments into the setback. However, the eave capping this loggia complies with the standard and I find that overall with the standard can be said to be achieved. The next question is whether the relevant objective to Clause 55.03-1 is met. The objective is to ensure that the setback of a building from a street respects the existing or preferred neighbourhood character and make efficient use of the site.

17. I am satisfied that this objective is met because there is sufficient diversity of height, setback and built form in the nearby neighbourhood. In addition, the use of compatible materials and the roof form will ensure a comfortable built form response. I am also satisfied that the setback is sufficient, indeed ample, for landscaping and I am not persuaded by Ms Halls condemnation of the lynch gate as being out of character. I am persuaded it makes an appropriate entry statement. Furthermore, high fences are not unusual on this busy road so that the adoption of a high fence represents a useful opportunity for the provision of secluded open space to the front of the building so making more efficient use of the site, consistent with the objective referred to above.

18. I generally accept Ms Ring's evidence that all of these dwellings are well appointed and laid out, with good access to daylight and sunlight and with well defined entries. I agree there is considerable reliance on screening to bedroom windows and suggest that it should always be an objective to reduce such reliance as far as possible. I accept Ms Ring's opinion that better screen mechanisms could be designed to reduce the reliance on obscure glass. I am persuaded also that use of screened balconies is a better, less visually opressive outcome in relation to main living room windows.

19. On the issue of overlooking from upper balconies to the ground level secluded open space areas below, I do not consider this to be a matter that warrants further amendment. I am satisfied that this is one of those occasions where the market can decide what is appropriate.

20. The various plans accompanying this application indicate different outcomes in terms of the trees to be retained. It was Mr Pitt's submission that I should rely on the landscape plan of Ms Frank-Mas. This shows the retention of Tree Nos. 1, 25, 26, 27, 29 and 32 as per the arborist's report of Galbraith and Associates dated 23rd of February 2003.

21. Tree No. 1, the Tasmanian Blue Gum located at the front, more southerly part of the land, is a very visible element in the streetscape. I have not been persuaded however that it is a tree worthy of retaining in the long term.

22. I was persuaded by the report of the Council's Landscape Advisor and the evidence of Ms Frank-Mas' that replacement landscaping, given the setbacks proposed here, could make an equal or better, that is safer and more manageable, contribution to the landscape character of this part of Kooyong Road.

23. I find that this is not an area where substantial native trees, underlain with an understorey of bark and leaf mulch, are typical of the landscape character. That may be the case in areas such as Nillumbik or Banyule but not here.

24. The evidence of Mr Galbraith was that the safe useful life expectancy (SULE) of this tree is only 10 years. Accordingly I find it sensible to require its removal in the context of a development plan that can provide for suitable replacement planting.

25. I now turn to the Liquidambar trees along the rear boundary - Trees 29, 30 and 31 on Mr Galbraith's report. The report suggests that Tree No. 29, the more southerly tree, is capable of retention with the basement setback as shown on the plans. Even though Mr Galbraith was not called, his recognised expertise in these matters gives me sufficient confidence to accept this evidence.

26. I question the need for all three trees to be retained, as I am unsure as to who would benefit from their retention. The two storey flats at No. 89 Seymour Road have no windows that look towards them. In terms of the outlook from the White Lodge flats the trees have no screening value, due to their high canopy. The retention of one specimen, plus the Acer in the northern most corner will maintain a sufficient canopy effect while allowing for the effective redevelopment of the land. It will also ensure some backdrop canopy when viewed from the rear yard of No. 239 Kooyong Road.

27. The final group of trees are the two Acers and Laurel on the southern boundary. I am prepared to accept that Trees 27 and 26 would be likely to survive construction of the basement car park but I am less persuaded that No. 25 would survive. There is a likelihood that its root system relies primarily on the subject land, due to buildings covering the property to the south. If the basement severs these roots the opportunity for future root growth would be greatly diminished.

28. Retention of Trees 27 and 26 would be more useful in any case, as they make better contribution in terms of outlook from the rear windows of No. 91A Seymour Road and the flats at 89 Seymour Road.

Local Policies for Incremental Change or Minimal Change

29. It is also necessary to determine whether my conclusions in relation to built form character and landscape character go contrary to the Local Policy for Incremental change and the proposed policy under Amendment C25, for minimal change.

30. The subject land is within an Incremental Change Area under the Local Planning Policy Framework. Clause 21.04 of the scheme provides that in Incremental Change Areas "some incremental change will be catered for provided it is consistent with surrounding use, character and scale". The question to be decided therefore is whether this development can be said to be consistent with surrounding use, character and scale. The clause goes on to provide that incremental change "could vary from location to location" for example, in locations comprising predominately detached houses, dual occupancy development may be the most appropriate outcome. However, where a site is significantly larger than conventional size sites in a given location it is acknowledged that several dwellings on a site might be an appropriate incremental outcome.

31. The question of what is incremental has often been faced by the Tribunal and the suggestions made by Member Baird in the case Young Charmer Pty Ltd v Glen Eira City Council (1999/72060 2 VPR 251) are useful. Ms Baird refers to such matters as the presence or absence of existing multi-unit developments or medium density housing in the immediate area as well as the built form character and scale of the neighbourhood, the landscape character of the area and any heritage considerations.

32. In terms of the presence or absence of existing multi-dwelling development, the subject land has higher density development on both its southern and western sides compared to more conventionally developed streets nearby. There is also the very different form of the medical centre side opposite. In addition, this part of Kooyong Road is characterised by the regular interspercement of two storey structures, many of which are quite imposing compared to dwellings in the more residential hinterland such as Seymour Road. Seymour Road's more domestic suburban scale is also reinforced by a different landscape character to that which exists in Kooyong Road. Finally, of course, there are no heritage considerations to have regard to here.

33. On balance I find that a two storey apartment style building, compared that is to a more single dwelling style of multi-dwelling development, is appropriate on this site and would not transgress the policy objective for incremental change. In other words I accept that what is proposed here represents an incremental change in terms of its immediate surroundings. I do however have more to say about the impact to the north, where the context is different from the site's other interfaces.

34. What then of the proposed policy for minimal change, to be introduced under Amendment C25? As acknowledged by Mr Pitt, Section 84B(1)(f) of the act provides for the Tribunal to have regard to the amending provisions now that the amendment has been adopted by the council and is with the Minister for final approval.

35. I am not persuaded that for the purposes of this particular proposal the provisions of Amendment C25 constitute any substantial change to the incremental change provisions under Amendment C25. One may still have regard to the site specific context, including the site size in relation to its neighbours. The subject land is certainly substantially larger than many of its neighbours, especially those further to the west in Seymour Road. It is also a particularly deep block. The policy refers to the need to meet site and rear setback standards and these are met. Notably, however, the proposed local variation to Standard B8, requiring a site cover of less than 50%, would be exceeded. And even against the existing standard of 60% the subject development transgresses by 1%. I am not persuaded however that this outcome is inconsistent with the intention of the policy as I accept Ms Ring's and Ms Frank-Mas' evidence that there are still ample opportunities for planting.

36. I also accept Ms Ring's opinion that some recognition should be given to the site's location on Kooyong Road, despite this not being a fixed rail transport route. This opinion is consistent with the Panel's findings in relation to Amendment C25. I also agree with Mr Pitt that the bus route in Kooyong Road is less likely to change than bus routes on more local street networks.

37. From most quarters therefore the proposal represents a minimal change. From the street it is a large building but that is consistent with many in Kooyong Road and there is opportunity for landscaping beyond the high front fence - a feature that is not atypical along this road.

38. The siting and design of the front part of the building is as much as one might expect from any redevelopment, even a single dwelling. It is certainly in line with the neighbouring dwellings at Nos. 241A and 239 Kooyong Road.

39. On its southern interface the building is site responsive by not being within the primary outlook of its near neighbours or by being otherwise shielded by outbuildings or trees to be retained.

40. On the western interface the White Lodge windows are already exposed to view from the subject land and a quite substantial tree is to be retained. The rear setbacks also meet the relevant standard, both existing and proposed.

41. I agree that there could be some room for improvement in relation to upper floor privacy from the first floor balcony to White Lodge and the amended plans may allow this to be further investigated.

42. The final issue then is that of the impact on No. 239's rear yard and outlook. The question to be decided is whether this constitutes an unacceptable extent of two storey development adjacent to a primary open space area.

43. As noted by Ms Ring, the rear yard to No. 239 can be divided into two parts separated by intervening trees. The space further to the rear is more service oriented with the area closer to the dwelling being more recreational and deserving of seclusion and protection from visual encroachment. At present the rear yard to No. 239 has an extensive two storey building along its rear boundary. This however is effectively screened by a substantial Cypress hedge, the location of which does not compromise the useability of the rear yard. To provide an equivalent screen in relation to the subject land would necessitate a substantial reduction of No. 239's rear yard and result in an inappropriate northern boundary interface for the proposed development.

44. The Clause 55 objectives in relation to height, side and rear setbacks and overlooking all point to development outcomes that are respectful of the existing or preferred neighbourhood character and limit impact on the amenity of existing dwellings. Proposed Clause 25 has similar objectives but with more emphasis given to ensuring that building bulk is kept low in rear yard areas.

45. I am persuaded that the "preferred neighbourhood character" must be one that would derive from the consistent application of the incremental or minimal change policies. My conclusion is that on balance a continuous two storey form adjacent to the rear yard of No. 239 would be too great a "change" in terms of visual bulk and outlook, having regard to the Local policy framework and the objectives of Clause 55.

46. It is not so much the rear part of the land that is problematic. The rear part is in line with the No 239's services section, is partly screened by 239's middle layer of landscaping and sits to the front of an existing view to the White Lodge flats.

47. I am persuaded that the proposed building could be redesigned to reduce the continuity of the built form adjacent to this central open space area and my directions for amended plans are intended primarily to reflect this. Removal of Dwelling No. 7 would eliminate the bulk adjacent to the central garden area while maintaining development in the rear, less sensitive section of No. 239's outlook.