Mr J Cicero, solicitor of Best Hooper. He called Mr M Bastone, town planner of Urbis Pty Ltd, and Mr J Patrick, landscape architect of John Patrick Pty Ltd, to give evidence.

Mr I Field for all other Respondent Objectors on Day 1. Ms Lattuada and Ms Poole on Day 2.

Development of a three storey apartment building with 16 dwellings and a basement with 17 car spaces.

Application under Section 79 of the Planning and Environment Act 1987.[1]

Relevant Scheme policies and provisions[2]

Clauses 10.04, 11.04, 15, 15.01, 15.02, 16.01, 21.05, 21.07, 22.03, 22.07, 32.01, 55 and 65.

The site is located on the south-east side of Belmore Road between Evelina Street and Union Road, is 1167.1 square metres, and falls to the rear by some 5 metres. It contains a double storey dwelling. To the south-west[3] are two double storey dwellings. A single storey dwelling is to the east. Two lots adjoin to the rear, one of which is a double storey unit. The Balwyn East shopping centre is close to the site.

9 February 2011 including the review site and Nos. 2/40 and 42 Relowe Crescent.

Dintinosante v Boroondara CC [2009] VCAT 2444 where a second dwelling on the land was approved.

1. A planning permit application was lodged with the Boroondara City Council to construct 17 dwellings on a site fronting Belmore Road in Balwyn. The Council failed to determine the application within the prescribed time. The permit applicant has lodged this proceeding with the Tribunal requesting the grant of a permit. Based on plans that I substituted at the hearing, the proposal is now for 16 dwellings.
2. The key questions for my determination are:
   • Is the proposal an acceptable response to neighbourhood character?
   • Are potential off-site amenity impacts acceptable?
   • Is an acceptable level of internal amenity achieved?
   • Are traffic and parking impacts acceptable?
   • Do any other matters warrant rejection of the permit application?
3. I must decide whether to grant a permit and, if so, what conditions should apply. Having considered all material presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided not to allow the Application. My reasons follow.

Is the proposal an acceptable response to neighbourhood character?

1. In the previous case, where the Tribunal was considering a proposal for one extra detached dwelling on the land, the Tribunal briefly commented on the site's suitability for increased residential density. Member Wilson said that such development would meet state and local policy that seeks better use of existing infrastructure, urban consolidation, and increased diversity of dwellings. That proposal does not appear to have been contested on grounds that the site was unsuitable for a second dwelling.[5]
2. The proposal before me is very different. It is a multi-level apartment building with 16 dwellings and a basement/semi-basement. This format is not represented in the immediate area or the wider area that crosses into the City of Whitehorse[6]. It is of a scale that is also not representative of the nearby neighbourhood activity centre that generally comprises buildings of one and two storeys. Although there is a considerable amount of unit development in the near and wider area as seen on an aerial photograph or cadastral plan, that is not appreciated in the same manner from within the area given the varied landform, road alignments and vegetation cover.
3. These matters are relevant to the arguments advanced in this proceeding that an apartment building is uncharacteristic and unsuitable and that the density of dwellings is radically different to what exists.
4. In addressing these matters, and the more specific question of the appropriateness of the proposed built form, I must consider the existing conditions and the planning context that provides the framework for managing change. I refer first to that framework.
5. The review site is within a Residential 1 Zone which includes in its purpose to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. Those themes are continued in local and state policies including Clause 11 that "encourage(s) higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households".
6. That means different forms of housing are acceptable. If the proposal is suitable in its design, layout and potential for off-site impacts, I do not consider the application can be rejected because it is an apartment format with basement parking or comprises a higher dwelling density than the detached houses and multi-units that predominate in the locality.
7. However, what is an acceptable fit in a planning context that envisages change around the activity centre is not simple to determine. There are no policies within the Boroondara Planning Scheme that steer a defined preferred character outcome with respect to the activity centre or residential areas. The draft Activity Centre Strategy is not at a stage that can carry influential weight but, as an indication of current thinking by the Council, the activity centre would experience significant scaling-up. That would also be expected through the application of state policy. The development of the residential area nearby must be considered with that prospect in mind as well as the main road frontage. A balancing factor is that what is an acceptable fit is also tested against the existing character features based on the requirements of Clause 55 and policies including Clause 22.07. They seek a positive and creative response to the existing character. I was referred to the Council's Residential Design Policy but it does not carry the weight of the Scheme and does not provide the primary assessment basis.
8. In terms of the existing context, the review site is well proportioned with typical constraints such interfaces with existing dwellings to the sides and rear including their private open spaces. There is a need to protect the amenity of those existing properties and their vegetation although the reasonable amenity expectations are guided not only by character policies but also the policies to which I have referred that contemplate change around neighbourhood activity centres. While there is no significant vegetation to be retained on the site the slope is considerable and that must be managed. That slope has, however, the opportunity for views to be gained from elevated dwellings.
9. The review site is located on the "low" side of Belmore Road. The landform is an important feature of the area as is the presence of vegetation, as already indicated and is also referred to in the statement for Character Area No. 37. The most recent dwelling development visible from the review site is in the form of two display homes with very little planting around them. They are on the high side of Belmore Road. It is fair to say that these dwellings have an impact and prominence because of their contemporary styling and hard surfacing but it is also fair to say more of this form of development might occur in the area where detached dwellings may not require planning approval and thus are not subject to an assessment against character and other policies in planning schemes.
10. The style of buildings in the immediate area of the review site will clearly change over time noting that the local policy at Clause 22.07 encourages contemporary development solutions. As stated, I do not consider the design response is unacceptable in its use of an apartment, rather than townhouse, format. Similarly, the proposal is not unacceptable in its styling that adopts more regular proportions and a flat roof contrasting with pitched roofs that predominate. Rather, the critical issues are the scale and positioning of the built mass associated with the proposed development.
11. In my view, in addition to the findings I have already made about the acceptability of the apartment format and density, I find various principles displayed in the design are appropriate and in these respects I accept Mr Bastone's evidence. Specifically:
    • The front setback of 9 metres even though the dwelling to the east has a much deeper setback. The adopted setback accords with Clause 55 and is sufficient when also considered with the site's position on the low side of the road and the generally two storey streetscape presentation.
    • The two storey streetscape format with steps within the facade.
    • The use of a basement to provide for the efficient use of the land, facilitate the ability for cars to enter and depart in a forward motion, and to minimise the visual impact of parking.
    • The position of the basement insofar as it allows for setbacks from side boundaries to provide the potential for in-ground perimeter planting.
    • The lack of on-wall boundary construction.
    • An attempt to transition the built form down the site so that it is lower at the rear.
12. While I consider the sheer 2-3 storey wall plane abutting the western edge of the access ramp could be modified, overall, I find that the streetscape response is generally acceptable.
13. Despite these positive elements of the proposal, I disagree with the Applicant that the overall massing, layout and positioning of built elements are acceptable to the side and rear. I have been influenced in my conclusions by the orientation of the dwellings and private open spaces associated with Nos. 2/40 and 2/354 Belmore Road in particular. While both are two storeys, and the latter is particularly large, I do not consider the proposal is sufficiently respectful of the most sensitive components of these interfaces. More specifically, my concerns with respect to the boundaries to the west and south-west are principally:
    • The three storey presentation in the central part of the building is positioned opposite the open space and expansive east-facing windows of No. 2/354 Belmore Road. This is where planting on the adjacent site will not provide screening to mitigate the visual impact and where the proposed setbacks and landscaping within the site would not sufficiently ameliorate the building mass that rises to some 9 metres. This more than 4 metres higher than the eave height of the flat roofed double storey dwelling at No. 2/354 based on the survey included with the application plans.
    • The raised building form toward the rear where, although the building is reduced to two storeys, the basement cannot be lowered because of the ramp grade and the raised form adds to the height in the context that the middle level ("ground") is not recessed along its western elevation from the lower level and has only limited recession along its southern elevation.
14. I am less concerned about the properties at No. 358 Belmore Road and No. 42 Relowe Crescent given the setback of the dwelling at No. 42 Relowe Crescent and the side abuttal with no windows in No. 358 Belmore Road. In addition, both have vegetation that would not be affected by the proposal and would provide screening. Having said that, the rear of the review site sits higher than the back garden of No. 42 Relowe Crescent and the proposal would be seen through breaks in the vegetation looming to a considerable degree over the rear of the garden.
15. I appreciate that the plans were revised to improve the interfaces with adjacent properties even though those relationships were not felt by Mr Bastone to be particularly sensitive. I also note the Applicant's reliance on the comments of the Council's urban designer and planning officer who were not satisfied with the application plans but suggested changes to achieve an acceptable outcome. My findings make clear that a further scaling back is required to parts of the building because, it seems, I place greater weight on the sensitivity of the relationships and the extent to which the development would be exposed from those properties. A more graduated response is required. I reach that conclusion with the benefit of appreciating the review site from within the abutting properties to assist contemplate the relationships.
16. Further, in reaching my conclusions I have compared the proposed building form with the building envelope allowed by the current permit. The side and rear setbacks are not radically different in the southern part of the site but the wall height of the proposed building is some 2 metres greater along the rear elevation. This is essentially because of the raised basement. The most notable difference is the continuous building form at 2-3 storeys down the site that contrasts with the spacing provided by the previous application for a second detached dwelling. In addition, that second dwellings was cut into the land and had a pitched roof and design elements similar to those associated with other dual occupancies such as No. 2/40 Relowe Crescent.
17. In my view, a development with fewer dwellings, a more graduated profile, and a smaller basement would relieve some of the concerns about the proposal's response to neighbourhood character. I do not consider that removing some of the ground and first floor floorspace can resolve the concerns because the result would be a long and squat form that would affect the design's integrity. I also tend to agree with Mr Song that the slope has not been sufficiently dealt with in the context of an apartment building with large basement.
18. For these reasons, I am not persuaded the proposal sufficiently meets all of the character objectives of Clause 55. Given my findings on this matter, I will only briefly set out my conclusions with respect to other matters raised in submissions.

1. The Council and Respondent Objectors raised a number of concerns with respect to the potential for the proposal to impact on the amenity of properties surrounding, near to, and opposite the review site. I deal with each next.
2. Visual bulk. I have essentially dealt with this above. Even if compliance is achieved with numerical standards in Clause 55 such as with respect to Standards B7, B17, 18 and 19, I find that the proposal involves too much building bulk too close to the more exposed abuttals as discussed above. I find the outcome is not site responsive and is unacceptable in character terms.
3. Overlooking. The Council and residents sought screening to the rear stairs from Apartments 1.04 and 1.05 to the ground level open space. I would have been inclined to require such screening consistent with Standard B22 given the proximity of abutting secluded private open spaces. This matter could have been addressed by conditions. I do not consider more would have been required to address perceptions from some parties that any windows give rise to personal security issues.
4. Overshadowing. The development has been designed to comply with Standard B21 of Clause 55 and is acceptable in this regard.
5. Noise. Several parties referred to the potential for noise such as from the open face to the car park at the rear of the site, the increased residential occupancy on the land and parties, the location of air conditioning units and other plant and equipment.
6. I have particular concerns about the open car park face. This car park serves 17 vehicles including one visitor space. The ramp extends deep into the site given the grade and slope. Cars would be turning at the bottom of the ramp at this southern end of the site and I consider an open wall face is not appropriate. The gap could be closed to limit noise but the amenity of the adjacent ground level open space within the site is poor in either scenario.
7. I do not consider the other concerns about noise would warrant rejection of the permit application.

Is an acceptable level of internal amenity achieved?

1. The Council and Respondent Objectors also raised concerns about the internal amenity of the development.
2. Solar access and daylight access to some private open spaces. The main concerns relate to Apartment 1.01, that would be affected by the building and retaining walls, and some other ground level spaces. I think these matters could be improved in any new design including the ground level open spaces for Apartments 1.04 and 1.05 that, although being secondary, are poor in their aspect and northern wall abuttals.
3. Energy efficiency and dwelling orientation. The proposal was criticised for the lack of north-facing windows. The overall layout of the building relies on its access from the north-east corner of the site. It may be difficult to relocate the bus stop that is to the south-east corner but, if the layout was flipped, then a far better amenity for the proposed dwellings could be achieved, while still gaining views. In the alternative, there may be opportunities in a revised design to improve the orientation of habitable rooms within the development.

1. Residents raised a series of concerns about the lack of car parking, including visitor parking, within the development given the policy at Clause 22.03 and potential problems associated with more overflow parking into Belmore Road and surrounding streets. They highlighted the extent of on-street parking that occurs and problems such as cars parked over driveways and illegally parking in front of a fire hydrant. There is the further relationship with the bus stop that would affect the ability for cars to turn into and out of the proposed car park when a bus has stopped. They said that all of this would add to congestion and affect safety in a situation where accidents occur. Waste management would further add to the conflict that would occur at the front of the site.
2. The Council did not oppose the proposal on either traffic or parking grounds.
3. The amount of parking proposed may be said to fall short of the requirements of Clause 55 and the local policy given several two bedroom dwellings have studies although the studies are small and generally unlikely to be adapted to bedrooms. There is a shortfall with respect to visitor parking supply on-site. There is an argument to allow fewer car spaces than standard requirements given the proximity to the neighbourhood activity centre with its services including a supermarket. However, the access to bus services is relatively limited compared with a site abutting or close to fixed rail. If this was the only outstanding issue then I may not find it a reason to reject the permit application. However, a shortfall in parking is a possibly an indicator of a development with a high yield in a context that the basement parking is limited by the use of a very long ramp.
4. I do not consider the location of the ramp and access relative to the street and the bus stop warrants review or rejection of the proposal. This bus stop is something that needs to be accommodated. As I have mentioned, flipping the basement access would require a small relocation of the bus stop to the east which may provide another alternative.
5. Arrangements for waste management could include a private collection from within the basement although that is not currently proposed in the waste management plan prepared to support the permit application. Whether that form of service, or another, occurs I do not consider this is an insurmountable matter or that any additional rubbish collections provide an unacceptable impact on the amenity of the area.

Do any other matters warrant rejection of the permit application?

1. The grounds relied upon by many Respondent Objectors include a range of other issues such as the possibility of plan alterations to accommodate building approval requirements, ventilation and fire servicing, and the entry to the dwellings. None of these provide a reason to reject the permit application although I do consider that improved entry for the units could be examined as the lobby and lift are quite deep into the site.

1. For the above reasons, I find that the proposal would not produce an acceptable outcome having regard to the site's context and directions of the Boroondara Planning Scheme. The scale, bulk and positioning of the proposed built form is unacceptable particularly in terms of its relationship to several existing residential properties to the side and rear.
2. I have considered whether changes can be directed by way of permit conditions but consider the result would be a long and squat form that would affect the design's integrity.
3. Given the number of changes required, and potential for improvements such as with respect to private open space and northern orientation, it is appropriate that any revised proposal be considered through a fresh permit application based on a new design concept.
4. I will therefore affirm the Council's decision and direct no permit issue.

[1] A review against failure is a deemed refusal under Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[2] In the Boroondara Planning Scheme. I also referred the parties to the provisions of the Whitehorse Planning Scheme as Evelina Street forms the municipal boundary and dwellings within that adjacent municipality are part of the wider character.

[3] Given the off-set orientation of the land, I refer to this side as "west", the rear as "south" and the abuttal with No. 358 Belmore Road as "east" for ease.

[4] I have considered all submissions and evidence presented by the parties although I do not recite all of the contents in these reasons.

[5] Dintinosante v Boroondara CC [2009] VCAT 2444 at paragraph 7.

[6] The continuation of Belmore Road in the City of Whitehorse includes land within a Residential 1 Zone part of which is affected by Vegetation Protection Overlay 2 (north of Belmore Road). The area is within an area of "natural change" with the north side being "Bush Environment" and the south side being "Bush Suburban" based on Clause 22.03 of the Whitehorse Planning Scheme.