Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889

Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889 | Case summary | Zoe

[7]

Pursuant to the VCAT Act 1998, Schedule 1 clause 64, the Tribunal permits the following plans to be substituted for the plans accompanying the application:
1. Drawings SK_02 1 Level B2; SK_03b 1 Level B1 (OPT 2); SK_04 1 Level LG; SK_05 1 Level UG; SK_06 1 Level 1; SK_07 1 Level 2; SK_08 1 Level 3; SK_09 1 Level 4; SK_10 1 Level 5; SK_11 1 Level 6; SK_12 1 Level 7; SK_13 1 Roof Plan; SK_14 1 Sections 1+2; SK_15 1 Sections 3+4; SK_16 1 Sections 5+6; SK_17 1 Section 7; SK_30 1 and SK_31 1 both Shadow Diagrams; and SK_40 1 Access Diagram - all dated 3 September 2010 and all VCAT Revision 1 inclusive;
2. Drawings SK_22 and SK_23 both Elevations;
3. Drawings 10-195 UG, 10-195 LV1, 10-195 LV2, 10-195 LV4 and 10-195 LV6, all Landscape Plans by John Patrick PL and all dated August 2010.
By 4.00pm on Monday 20 December 2010, the Permit Applicant must prepare, file and serve on the Tribunal and on all parties to this Application for Review, amended plans responding to the Tribunal's concerns as set out in this Interim decision and summarised in paragraph 114. [An application for an extension of time may be made to the Tribunal within the above stated time limit].
Within five weeks of the date of receipt of revised plans and accompanying submissions on behalf of the Permit Applicant, any party to this application for review may submit to the Tribunal submissions in writing in relation to that material. Submissions must be confined to the changes proposed to the layout and not to matters upon which findings have been concluded as set out in these reasons. A copy of any submission filed with the Tribunal must be served at the same time on the applicant for review.
Within five weeks of the date of receipt of revised plans and accompanying submissions on behalf of the Permit Applicant:
1. VicRoads and the Director of Public Transport must file and serve on the Tribunal and on all parties to this Application for Review, an updated version of the conditions forwarded to the Tribunal under cover of the VicRoads letter dated 5 October 2010 and under cover of the VGSO's letter dated 4 October 2010; and
2. The Responsible Authority must file and email on the Tribunal and serve on all parties to this Application for Review, an updated version of the conditions discussed at the hearing on 19 November 2010.
Any party to the Application for Review may, with written reasons, ask the Tribunal to convene a further hearing so that submissions may be made orally.
If the Permit Applicant does not respond to Order 2 by 4.00pm on Monday 20 December 2010 or indicates that it does not wish to prepare amended plans, the Tribunal will disallow the review application and direct that no permit is to issue.

[43]

The developer seeks permission to build a supermarket and shop and 173 apartments in four buildings ranging between three levels to seven and a half levels on a large L-shaped property at the western end of the Balwyn Activity Centre. As Boroondara City Council has failed to make a decision within time limits, its deemed refusal is reviewed to the Tribunal, with neighbouring objectors joining in the hearing in opposition to the proposal.
Arising from the submissions and evidence at the hearing, the statements of grounds submitted to the Tribunal and our consideration of the Boroondara Planning Scheme, we have identified the following key questions to be answered in this case are:
1. Does the proposed development constitute an appropriate built form and urban design outcome for the site?
2. Will the proposal unreasonably affect the amenity of adjacent properties?
3. Will the proposal deliver an acceptable standard of amenity for future residents?
4. Are there sufficient landscaping opportunities to residential interfaces?
5. Have traffic and car parking issues been appropriately resolved?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme and inspected the review site and surrounds, we have found the proposal is supported by policy that encourages increased residential density in locations that are accessible and where such housing will support the activity centre function. We have also found that built form that will change the streetscape and character of the Balwyn Activity Centre is sought under an adopted local structure plan.
Despite this general support we have concerns about several aspects of the proposal including the height of Building 2 to Jersey Street, the opportunity for landscaping to residential interfaces and other matters. We consider these concerns may be addressed by changes to plans and have decided to issue an interim decision allowing the Permit Applicant an opportunity to submit amending plans. Our reasons follow.

[46]

The State Planning Policy Framework (SPPF) clearly supports and encourages increased density and diversity of dwellings on the review site. Its location within an Activity Centre on a Principal Transport Route with excellent proximity to services and facilities make it a strategic redevelopment site[6] and an ideal location to promote Melbourne @ 5 Million. Population estimates indicate a need for additional housing and a variety of dwelling types and sizes to cater for changing household needs.
Local planning policy[7] furthers these directions, seeking to increase residential development opportunities, including higher density development, in and around commercial centres and increased housing choice and diversity in the municipality. No party disputed this policy support.
Although not part of the Boroondara Planning Scheme (the 'Scheme'), the Balwyn Structure Plan both in its Draft form and Adopted form was referred to by all parties. This document was adopted by Council in December 2009 following an initial Technical Report, preparation and public exhibition of a Draft Structure Plan, consideration of submissions and a report to Council.
The entire subject site including B2 and R1 zoned land is within the spine of the Balwyn Activity Centre.
We do not give the Balwyn Structure Plan the weight that would be accorded to a plan that has been tested though an Independent Panel assessment[8] or to a document that is incorporated or referred to in the Scheme. However we find that the Structure Plan is a relevant consideration[9] and is useful to guide our consideration of this proposal.
The Balwyn Structure Plan states 'the Balwyn Activity Centre is the City of Boroondara's largest Neighborhood Activity Centre and will be the focus for increased residential development in the future', identifies the need to accommodate 1,000 persons in an estimated 600 dwellings within Balwyn by 2021 and indicates that the Balwyn Activity Centre has capacity to accommodate extra population.
The Draft Structure Plan in relation to this site identifies it as a key development site with a four-storey street wall or podium, six storey overall height, recessed fifth and sixth storeys and any interface with residential land to accord with ResCode. The Adopted Structure Plan in relation to this site retains these directions but reduces the overall height to five storeys with the fifth level recessed.
Taken together, the SPPF which now includes Melbourne @ 5 Million, local policy and the adopted Balwyn Structure Plan set a context that clearly seeks increased residential densities on this site and anticipates a change in built form expectations. This informs our decision making. In this context the key consideration is not whether the redevelopment of the subject land for a higher density and higher built form outcome is supported by policy, but rather, whether the proposed built form and urban design outcome is acceptable having regard to the site context and emerging character of the area.
State and Local policy and other provisions of the Scheme also requires that development achieves a high standard of design, responds appropriately to physical features and site context and ensures there is an appropriate standard of amenity for future residents and no unreasonable effects on the amenity of existing residents. It is these areas that are in dispute and we address them as follows.

[49]

Building 1 presents to Whitehorse Road with the supermarket, shop and three lower levels of dwellings at zero lot line with the upper three levels set back 7.5m to their balconies and 9.65m to the building façade.
The lower four rectilinear levels of Building 1 create a podium along Whitehorse Road with the three residential levels comprising horizontal banding swapping between solid and glazed fabric. There is a parapet between the top three setback levels from its four levels below. The top three levels comprise timber panels with glazed punctuation.
It was Council's submission that the proposed form with a four storey street wall and a further three storeys setback from the site boundary will appear disproportionate and dominating in the Whitehorse Road streetscape. Evidence was called from Mr Czarny that the seven storeys was excessive in a midblock location opposite fine grain development. It was his evidence that while the four storey scale to the street was acceptable, the three upper levels create an unbalanced arrangement that will result in the top two levels being prominent and dominant when viewed from oblique angles along the spine of Whitehorse Road and from the opposite side of the road. In particular Mr Czarny was concerned about that the building would be dominant above development in and around the centre. Although his preference was for Building 1 to be four levels to the street with a fifth level recessed above, Mr Czarny indicated that 6 levels to the Whitehorse Road frontage could be acceptable provided the sixth level was substantially recessed from the fifth and not visible from development opposite.
Mr Falk for the objectors opined that an alternative design in accordance with the Adopted Balwyn Structure Plan would be appropriate at this interface incorporating a maximum five storey height with the fifth level recessed.
The permit applicant called evidence from Mr Sheppard that the 9.65m setback of the three upper levels will result in an acceptable visual presence to Whitehorse Road similar to that anticipated by the Draft Structure Plan[10] with future development of the adjoining corner sites substantially screening the scale of Building 1 from the east and the west.
Before turning to assessment of the overall height of Building 1, we make the following findings on the four storey podium presenting to Whitehorse Road:
- The four storey wall height will provide an acceptable pedestrian scale and avoid a 'canyon' effect that can be created by buildings that are substantially higher than the width of the road.
- The podium height will appropriately create a dominant and coherent element to the streetscape and not be out of scale with two storey buildings on the opposite side of the street and the three storey scale of the Palace Cinema.
- The scale to the street is supported by both the Draft and Adopted versions of the Balwyn Structure Plan.
- The articulation and design detail of the front facade and the inclusion of a patterned finish to side elevations create an attractive public interface.
- The incorporation of an active shop frontage at ground level and the inclusion of balconies at the three levels above provide excellent passive surveillance opportunities over public areas in accordance with State policy on safety of the urban environment.
The key dispute in relation to presentation of the development to Whitehorse Road relates to the height above the four storey podium. We accept that whatever height above the podium level is approved, the built form will be prominent in the existing context that includes vacant land to the west and a service station to the east. In the longer term as redevelopment occurs nearby, as encouraged by policy, this prominence will be reduced and thus should not be the determining factor in deciding the appropriate height.
It is our view that three storeys above the podium level as proposed are acceptable; that is an overall seven storey height for Building 1 facing Whitehorse Road.
In reaching the view that seven storeys are acceptable, we have had regard to the policy support of maximizing opportunities[11] for increased residential density on strategic redevelopment sites with characteristics that include location within an activity centre on a Principal Public Transport Route. We find the robust nature of this arterial road in the Balwyn Activity Centre combined with an unusually deep lot (for a site in a strip shopping centre) can support the seven storey height.
We are satisfied that the three upper levels will not be intrusive for the pedestrian experience in the activity centre. The recessed nature of the upper levels will avoid direct views from the footpath opposite and ensure that the four levels to the street will be the dominant feature. We agree with Mr Sheppard that the 9.65m setback of the three upper levels from the frontage will create no greater visual presence in the street[12] than two levels setback 6m indicated as the preferred form in the Draft Balwyn Structure Plan.
The site is large relative to the majority of sites in the activity centre and we consider its size and depth allows for a taller building. The separation of the upper levels from the two to three storey developments that includes the substantial Balwyn Cinema building on the north side of Whitehorse Road avoids a disproportionate appearance. In any event the built form context is likely to alter in the longer term as redevelopment anticipated under policy occurs on the north side of Whitehorse Road in this part of the Activity Centre. Under the Draft Structure Plan development up to six storeys is indicated on the Balwyn Cinema site and three storeys on the finer grain shop sites to the east of the cinema. In the Adopted Balwyn Structure Plan the Balwyn Cinema site is indicated at five storeys.
We acknowledge the building will initially be prominent in the streetscape, given adjoining sites presently allow full visibility of east and west elevations. We find the treatment of boundary walls that includes a patterned, textured finish and timber elements to the upper levels will provide an acceptable finish initially; accepting that in the longer term the prominence of the building and the visibility of the side elevations will be reduced as development occurs on adjoining sites. The modulations provided by setbacks and balconies and the varied external materials will provide an attractive appearance to the street.
It is relevant in an activity centre context that the seven storeys of development will not, due to the site's location on the south side of the road, result in shadows to the public realm.
We are satisfied that the sixth or seventh storey on this part of Building 1 will have no unacceptable overshadowing or overlooking impacts to adjoining properties and that while the upper levels will be visible from residential properties to the south[13], it will form one element in a skyline that is likely to change due to development in the Activity Centre over the longer term.
We were advised that a reduction in height for development on this site to five storeys as reflected in the Adopted Balwyn Structure Plan was based on concerns that a greater height would limit views of the Macedon Ranges from Balwyn Park. Our inspections of the area that included two visits to Balwyn Park have confirmed that the building height on the review site will not impact on those views. We note that even if the views were impeded by development of the site we are not persuaded that this should be a decisive factor in determining height in the centre.
Although concerns were expressed about the potential for increased height on the adjoining site as a result of approval for seven storeys on the review site, we are not persuaded that this concern justifies a lower height on the review site. This vacant lot to the west is identified in the Balwyn Structure Plan as a key 'gateway' where increased height may be used to emphasise the prominent location and mark the entry to the activity centre[14]. We are satisfied that any future proposal for that site will need to consider the site constraints that include its relatively narrow depth, its built form context that includes residential development to the immediate south and west and the need to be no more than four storeys to the street at zero lot line. This gateway corner will need to be assessed on its merits.

[50]

To the west of the review site is 184 Whitehorse Road, on the south east corner of Bevan Street. This property is within a business zone and has a permit for a four storey office/café development. We have no concerns about the impact of the proposal to this property in terms of building bulk.
The property at 1 Bevan Street contains a two storey block of 1960s style yellow brick flats and has a common boundary of just over 28 metres with the west side of the review site. The flats are setback 1.9 metres from the common boundary with the review site with communal open space in that setback. Its eastern wall contains several habitable room windows that look over the review site.
The western elevation of Building 1 facing 1 Bevan Street includes a section of precast panel setback 1.8 metres from the boundary (the width of the easement) with the elevation of Building 1 setback a consistent 8.53 metres from the common boundary. The height of Building 1 opposite 1 Bevan Street varies from seven storeys to the north down to three storeys to the southern end. We are satisfied that this design provides an acceptable interface with 1 Bevan Street. We say this for the following reasons.
The 8.53m setback of the building to the western boundary will provide an adequate separation from the flats at 1 Bevan Street. The total separation between the buildings will be 10.4m allowing a sense of space that will avoid an overwhelming built form when viewed from habitable room windows. We note that the side fence and brick retaining wall to this boundary will be retained with a concrete panel between 4 and 5m high setback 1.8m from the boundary, along the east side of the easement. The panel will be textured and coloured and avoid a blank wall. In addition, John Patrick proposes Ficus and Boston ivy creeping down the retaining wall. In finding the presentation to this interface acceptable we have had regard to the current outlook to the substantial factory building in close proximity to the common boundary.
The property at 3 Bevan Street has just over 8 metres of shared boundary with the review site and contains a detached dwelling setback approximately 9m from the common boundary. Although we acknowledge the outlook from 3 Bevan Street will change, we are satisfied that the maximum building height opposite this property of three storeys setback 8.5m from the common boundary is an acceptable design response.
We do not share Mr Czarny's concern about the development being a dominant mass in the residential streetscape of Bevan Street. We think the 'gap' created by the link element in Building 1; the lower built form to the south; the 8.5m setback to the western wall of the elongated 'T'; the finish of the side elevation that includes textured and coloured precast concrete panels at ground level; and articulation provided by vertical division of form, fenestration and balconies will prevent the building dominating the Bevan Street environs.
The proposed landscaping on the east side of the easement will allow for the softening of the built form, a matter we address in detail later.

[51]

Although we have found a seven storey height can be accommodated to Whitehorse Road frontage, we have reservations about the proposed height for Building 2 adjacent to the Jersey Street frontage.
The substituted plans show Building 2 at seven and half storeys comprising four levels rectilinear in shape with the upper three curvilinear in shape. At street level the presentation of this building includes a loading dock for the supermarket and entry to a ramp down to a basement car park for the residential component of this project. This level is elevated to provide the clearance required for trucks and the gradients required for ramps and, combined with the slope of the land, results in a one and half storey height.
Jersey Street is similar to many of the residential streets in the residential hinterland of Boroondara where generous front setbacks, well established gardens and substantial street trees create an attractive setting. Part of the reason that increased density of development in and around activity centres and near public transport is encouraged is to protect the neighbourhood character of this hinterland. The frontage of the review site to Jersey Street contains both Business 2 and Residential 1 zoned land, with one third of Building 2 straddling residentially zoned land.
Mr Czarny gave evidence that this building would grossly overwhelm the streetscape and adjoining properties and diminish the existing urban character and subdivision pattern of Jersey Street. Conversely Mr Sheppard's evidence was that the larger size of the site can accommodate the greater height and although the 'top' of Building 2 will be relatively prominent from short distances up Jersey Street and visible from adjoining residential properties to the south, the impact will be acceptably ameliorated by the setback of Building 2, the intervening built form of Buildings 3 and 4 and the proposed landscaping.
It was Mr Falk's evidence that Building 2 should be four storey and incorporate a more active frontage to Jersey Street.
Ms Heggen recommended removing a level from the top three levels of Building 2 to avoid the building being 'top heavy' or disproportionate and this was a position adopted by the permit applicant. Effectively we are thus considering the acceptability of a six and half storey Building 2.
It is unreasonable to expect replication of the neighbourhood character of Jersey Street on the review site. The location of the land adjacent to a service station, within an activity centre, the inclusion of part of the land in a Business 2 zone and the direction in both the Draft and Adopted versions of the Balwyn Structure Plan that allow for either 5 or 6 storey height on the Business 2 zoned land support a built form that will be different from conventional residential development in Jersey Street. The question is what height and built form is acceptable on this part of the site.
Our inspection of the area that included views to the site from Jersey Street and from a number of adjoining properties to the south assisted us in deciding that six and half storeys height for Building 2 is unacceptable. We reached this position having regard to the following matters.
In our view, Building 2 at six and a half storeys will dominate the street in an unacceptable manner. We agree with Mr Sheppard that the 'top' section of Building 2 will be prominent from Jersey Street but we do not agree with his position that this is acceptable. A more gradual transition in height is required from the higher levels that can be accommodated on Whitehorse Road to the lower levels that need to be accommodated in the leafy Boroondara hinterland.
The ground level of Building 2 has design features that include a high vehicle entry to the loading dock, a sloping driveway to achieve ramp grades, a double width crossing and almost no opportunity for landscaping to the street. These combine to create an elevated and utilitarian appearance. Three levels above this elevated ground floor will in our view create an overwhelming building bulk to what is predominantly a residential street.
It is likely that the properties facing Whitehorse Road, east of Jersey Street will be redeveloped in response to the direction in the Draft and Adopted Balwyn Structure Plan that seeks higher development in this section of the activity centre to improve connection with the remainder of the centre. However this support for increased height does not extend to the site on the east side of Jersey Street, opposite Building 2, that contains single storey units or to the properties further to the south east containing single and double storey dwellings. This existing low level development creates part of the context for the presentation of Building 2. At six and half storeys we consider Building 2 will overwhelm the streetscape.
In these circumstances we agree with Mr Czarny that a five and a half level building in this location responds better to the three storeys proposed for Building 3 and the single and double storey development opposite and nearby in Jersey Street. Five and a half storeys will provide an acceptable transition in height in this residential setting and achieve a better contextual 'fit'. That one third of this building is located on land zoned Residential 1 has influenced our view on its acceptable height.
We are mindful that there will be views of Building 2 beyond Buildings 3 and 4 from residential properties to the south of 17 Jersey Street. This includes 15 Jersey Street which contains a contemporary two storey dwelling occupied by the Ha family who are objectors to the proposal. Although there will be views of the development from the secluded private open space of this property, the separation of around 40m, the trees planted on the northern boundary of no.15 and the existing house at 17 Jersey Street all combine to ameliorate the impact to an acceptable extent.

[52]

The south east portion of the review site facing Jersey Street is zoned Residential 1 and 17 Jersey Street abuts this land. This creates a context where there are reasonable expectations that residential built form will develop. We consider that the in-effect three storey height of Building 3 setback 4 metres from 17 Jersey Street and 3m from the street provides an appropriate transition from the conventional residential development to the south and is an appropriate response to the setting and zone. The front setback of 3m and the side setback of 4m meet the applicable standards of Clause 55 of the Scheme that applies in this part of the review site.[15] We think that the front setback to Jersey Street can be well landscaped to provide a connection with gardens to the south and contribute to the streetscape.
Whilst we have found the height and setback are appropriate, we are not satisfied that the design allows for adequate landscaping to the south at this sensitive interface. Building 3 is actually four levels although only three levels are above ground, creating a subfloor level. This has two implications. Firstly, landscaping will be placed over the basement car park some 2.6m below the boundary fence. Secondly, the height that landscaping would need to grow over concrete to achieve some screening of Building 3 when viewed from the adjoining site make this design unacceptable. The internal amenity of these subfloor spaces is also of concern, a matter we address later.
On the final day of the hearing Mr Townshend provided plans and sections that showed deletion of the lower level of Building 3 and provided for planting to a depth of 1.6m along the entire southern boundary. Whilst we consider this layout is an improvement, we have reservations about the potential for landscaping over a basement, a mater we address later.
The secluded private open space of 17 Jersey Street has an interface with Building 4. It is our view that the three storey height of this building, the 4m setback from the common boundary and the 5m separation between Buildings 3 and 4 avoid an unreasonable building bulk to the south, noting that the side setback standard of Clause 55 of the Scheme is met. However, the same reservations we have with landscaping south of Building 3 apply south of Building 4.

[53]

Other than a side boundary with 17 Jersey Street, the review site adjoins the northern boundary of 2, 4 and 6 Grant Avenue. These properties have large rear yards which are well landscaped in the case of 4 and 6 Grant Avenue but occupied with a tennis court at 2 Grant Avenue. The dwellings on these properties are located at least 25 metres from the common boundary with the review site. All of the dwellings have habitable room windows, and in the case of 4 and 6 deck areas, that overlook the review site and allow northern views to distant hills over the factory site. Although the group of buildings that are proposed on the review site will significantly change the outlook from these properties we find this acceptable having regard to the following:
- The design provides for three storey buildings nearest the common boundary and a minimum 4m setback. This allows for an acceptable transition of built form.
- There are a number of breaks in the built form when viewed from the adjoining properties to the south. This includes a 5m separation between Buildings 3 and 4, a 6m separation between Buildings 4 and 1 and an 8.5m setback from the western boundary. These gaps between buildings avoid an unbroken building mass and provide a sense of space that responds to the open space of the adjoining rear yards.
- Although not a requirement in a Business 2 zone, the setbacks proposed meet the standard that applies in residential zones under Clause 55 of the Scheme.
- Landscaping can be established along most of the southern boundary of the review site where it adjoins the rear of the Grant Street properties in a minimum depth of 1.6m of soil.[16] Later, we address the potential for providing in-ground planting to this entire boundary.
In reaching our view on the acceptability of the interface between the Grant Street properties and the review site we have considered the current industrial use and development and that the expectation of residents abutting a Business 2 zone must be tempered compared with abuttal to a residential zone.

[55]

Amenity impacts to adjoining properties arise from overlooking, overshadowing and the impact of visual bulk. The latter has been addressed in our consideration of the built form and we deal with the other matters as follows.
Council referred to overlooking and overshadowing in the grounds of refusal. However, Mr Rantino advised that the substituted plans had addressed external overshadowing and subject to some permit conditions overlooking would also be satisfactorily addressed.
The Sorahan family of 4 Grant Avenue raised concern about overlooking and overshadowing and the detrimental effect this would have on the enjoyment of their property. Mr Falk gave evidence that the adjoining residential properties would have a sense of being constantly overlooked and overshadowing would occur, particularly in winter.
In terms of overlooking we are satisfied that subject to permit conditions requiring screening of some south and west facing windows and balconies in Buildings 1, 2 and 3 the development acceptably limits views into secluded private open space and habitable room windows through placement and screening of windows and balconies.
Facing the review site along the western boundary there are several habitable room windows of the flats at 1 Bevan Street and the secluded private open space and habitable room windows of the dwelling at 3 Bevan Street. All of the windows are at least 9m from the proposed balconies and habitable room windows of Building 1 and we are satisfied that this separation, which meets the Clause 55 standard relating to overlooking, achieves an acceptable protection of privacy to these windows. We are concerned that the two upper level units in the south western corner of Building 1 will allow views to the secluded private open space of 3 Bevan Street and consider some treatment of these windows is necessary to limit views.
To the south we agree with Ms Heggen's evidence that the southern side of balconies of units at the south eastern corner of Building 1 should be screened to limit views to secluded private open space of 2 and 4 Grant Avenue.
Overlooking from the south facing balconies and windows of the two upper levels of Buildings 3 and 4 is limited by screening. We are concerned that the ground level windows and open space allow some views south and consider this should be addressed by amended plans.
Turning to overshadowing we note that there are a number of Scheme provisions relating to amenity including provisions of Clause 55 that relate to that part of the development of three storeys[17] and the Design Guidelines for Higher Density Residential Development[18] (the 'Guidelines') that are relevant to that part of the development that is four or more storeys. Objective 2.6 of the Guidelines is:

[62]

Mr Rantino identified a number of Council concerns about the internal amenity of the development that included:
- Overshadowing of the central plaza area and the north elevations of Buildings 3 and 4.
- Lack of weather protection to the plaza area.
- Lack of direct access between the 16 dwellings in Buildings 3 and 4 to the car park.
- Lack of balconies to two units and balcony size less than 8 square metres for a number of units.
We have identified concerns about the poor amenity for the lower level of Building 3 and the extent of screening required to the south facing windows and balconies of units in Buildings 3 and 4.
We address each of these issues in turn.
The plaza area comprises a communal space protected from public use by gates to the pedestrian entry in Jersey Street. In our view it primarily serves as pedestrian circulation space between the buildings proposed on the site as well as providing for landscaping opportunities and seating areas. The orientation of the site is such that any height for the development above three storeys on the north side of the site will significantly shadow the plaza area and extend some shadows to the north side of Buildings 3 and 4. We do not consider the shadowing fatal to the proposal given the circulation function of the plaza and the access to daylight from the north and south to all units in Buildings 3 and 4.
As pointed out by Mr Rantino, the lack of direct lift access from the basement car park to the units in Buildings 3 and 4 will require residents of the 16 units in these buildings to gain access to and from the car park via the lobby of another building and walk over an open plaza, a situation that is not desirable in inclement weather and with prams or shopping. We agree that the design is not ideal but we are not persuaded that it justifies refusal of the application. We consider the inconvenience involved is not great, will be apparent to purchasers of these units and the need to traverse an outdoor area with shopping, prams and the like will occur if residents use public transport, as is the case for residents of any dwelling.
The open nature of the plaza is appropriate to provide a sense of space between the buildings on the site and provide outlook and daylight to units as sought in the Guidelines. We consider that roofing sections of the plaza to provide weather protection is unnecessary in terms of amenity of residents and would inappropriately reduce what Mr Govenlock referred to as 'breathing space' around buildings
The two units without a balcony space are located at level 2 and 3 in the south western corner of Building 1. It is our view that balconies should be provided to these two units and we consider this can be achieved, subject to appropriate screening if the balconies are within 9m of secluded private open space of adjoining properties.
The majority of the units have balconies that meet the Clause 55 standard of 1.6m minimum dimension and 8 square metre areas with ground level units of Buildings 1, 3 and 4 provided with small courtyards. However there are 52 units that have balconies less than 8 square metres in area. Whilst we acknowledge that the Clause 55 standard is not applicable to the buildings over three storeys we think there is opportunity to increase the size of balconies to at least 6 square metres. We agree with Mr Rantino's submission that the balcony space for the central units of levels 6 and 7 in Building 2 are narrow and awkward. Noting that one level of this upper section of Building 2 is to be deleted, we think these balconies spaces should be designed with greater width and useability.
We share concern over the amenity of the subfloor level in Building 3. This level provides 2 bedrooms and 2 bathrooms for four units, is south facing and predominantly located under natural ground level. We consider the enclosed nature of this space will create an unacceptable amenity outcome to these units with an inadequate outlook and poor access to light. The modified plans presented on the final day of the hearing deleted this level and we find this an appropriate resolution of our concerns on this matter.
All south facing habitable room windows and balconies of units in Buildings 3 and 4 are shown to be screened. Whilst this will limit the outlook and internal amenity of these units, we are satisfied that the opportunities for outlook to the north and the relatively generous size of the balconies to these units at around 14 square metres will result in acceptable access to light and outlook.

[64]

Various provisions of the Scheme require consideration of landscaping including State policy that seeks recognition of the integrating role of landscape architecture and local policy that promotes the City's treed and leafy environment.
Our assessment of built form impacts raised concern about the opportunity for landscaping to interfaces with residential uses. We think that despite the activity centre location of the site, the interface with residential uses in residential zones justifies a level of landscaping that will filter views to the substantial built form on the review site. We are satisfied that appropriate setbacks are provided to all boundaries at ground level but we have insufficient information on proposed landscaping to persuade us that the proposed planting in containers adjacent to the western boundary and to the boundary to the south will achieve an acceptable softening of the built form to these sensitive interfaces.
The plans started with the basement car parks and supermarket built to all title boundaries. The consequence is that all planting must occur in plantation boxes placed over concrete to basements below.
These plantation boxes need to be carefully built to specifications and subsequently maintained to sustain effective landscaping that is supposed to flourish to medium canopy heights of six to eight metres.
At the hearing Mr Patrick advised the western boundary off the easement will have a 42 metre long, 1.4 metre deep and 2 metre wide plantation box holding 117 cubic metres of soil.
To ensure the success of trees shielding the 2, 4 & 6 Grant Street homes to the rear of the wall to wall supermarket, Mr Patrick sought a 'bite' out of the back wall upper lid of the supermarket, to provide an elongated plantation box of natural soil extending only until, but not past, the boundary of 17 Jersey Street.
Given the interface between business and residential zones, Mr Patrick chose lily pilly species for their evergreen quality, dense leaf, ability to grow in shaded environments[19] and varied heights between 8-10 metres (Weeping) and 6 metres (Dwarf form Aussie Southern). In natural soil, Weeping Lily Pillies can grow to 30 metres.
The lily pillies need to be clipped regularly to create a density of foliage and hedged to create a screen for the neighbours. Crepe myrtles were added into the courtyard gardens of residents of proposed 7-storey Building 1 which is setback 8.5 metres from its western boundary.
As to the success of plantation box landscaping, Mr Patrick had this to say about this complicated and expensive system. Given that tree roots are fairly close to the surface, soil needs to be 1.4 metres deep. One needs to start with an appropriately tanked concrete box designed to specifications sloping towards its bottom drainage pipe. At the base of the planter, a 90mm agricultural pipe needs to be connected to the stormwater system. Above that is a 100mm deep layer of blue metal screenings and above that a filter fabric. The soil above needs to be chosen to ensure a sandy mix to allow for oxygen penetration and percolation. That is topped by a layer of mulch and the entire plantation box needs to be irrigated as per "Raised planter box specifications'. Appropriate drainage, moisture sensors, drip irrigation systems, fertilisation, pruning and weeding will each be critical elements in ensuring the success of the landscaping. Irrigation and drainage mechanisms need to be built into the concrete planter and connected to the slab below.
Mr Patrick explained in his witness statement that essential to the success of the scheme will be the implementation of an appropriate maintenance scheme for the site planting, including pruning, division of perennials, fertilising etc. Such works should be clearly identified and a program prepared as a condition of any permit that issues. Equally important is the need to provide irrigation to all planters to sustain growth. Appropriately sized tanks should be established beneath the basement car park to collect runoff from the site and to allow for irrigation of the planters through the year.
Mr Patrick agreed that it is much less complicated and much less expensive to plant in natural soil, but planter box solutions will become much more common in urban environments.
Similar applies to light weight planter boxes which also require their irrigation and drainage to be connected to recycled water systems.
Following Mr Patrick's evidence, the architects, Hayball, tendered plans illustrating a better landscaping solution, namely, an uninterrupted strip of plantation box soil to a depth of 1.6 metres above the concrete lids of the supermarket and plant room ventilation zone to the supermarket and residential car park below, extending along the rear boundary of the subject site all the way to Jersey Street. The width of the plantation box behind Buildings 3 & 4 reduces behind the plant room ventilation zone and the supermarket, although the plans indicated that the depth of soil in this location is subject to advice about the options to relocate ventilation for the plant room.
Hayball's plans also deleted the-below ground level of units to Building 3, resulting in the ability to continue the plantation box at the same continuous uninterrupted level along the entire southern boundary to neighbouring residents.
The successful establishment and ongoing maintenance of landscaping to residential interfaces is critical to our support of this proposal. We have not been provided with sufficient detail to persuade us that the proposed landscaping is adequate. Other findings in this decision will result in a reduced number of units and this will have a consequential effect on the amount of car parking to be provided. A reduced car parking provision will allow a reduced basement size with opportunity for deep soil landscaping which we consider necessary at the interface with 17 Jersey Street and preferable at the interface with dwellings to the south. Deep soil landscaping obviates the need for expensive and complicated plantation boxes and provides lily pilly canopies in excess of the eight metre heights envisaged by the plantation boxes.
We accept that provision of some perimeter landscaping and communal-area landscaping in planter boxes will become increasingly common in urban environments but we consider it essential to be satisfied in this case that the provision can be established and maintained.
To ensure the success of the complex landscaping system, it will be necessary to draft a Landscape Establishment Management Plan explaining the detail in the establishment of the plantation and planter boxes, as well as a Landscape Maintenance Management Plan setting out ongoing maintenance - and to circulate amended landscape plans and the two Management Plans to reflect the above suggestions made in the Patrick Report and the amendments recommended during the hearing.
The amended plans must show the basement setback from 17 Jersey Street and if possible the remaining southern boundary, boundary canopy landscape areas sitting in common property in order to give the owner's corporation access to ensure ongoing maintenance, and the above Management Plans.

[65]

At the commencement of the hearing, the developer reached an agreement with VicRoads and the Department of Transport on maintaining the status quo on Whitehorse Road for the tram stop as well as preventing a right hand turn into the supermarket by way of a physical impediment in the access driveway. Mr Leuner, who appeared in Mr Lowrie's place on the final day of the hearing, questioned the workability of preventing right hand turn into the supermarket from Whitehorse Road and the implications this would have for traffic in Jersey Street. We accept the advice of VicRoads and the Department of Transport on this matter since their views reflect the need to protect arterial roads and rail transport from unnecessary additional access points and note that the arrangement reflects the current approval for the supermarket on the review site.
Between the first and subsequent days of the hearing, Mr Walsh held talks with the responsible authority's traffic engineers on differences in the car park layout. The architects, Hayball, tendered plans illustrating:
1. A physical impediment preventing a right hand turn into the supermarket from Whitehorse Road;
2. How a splay needs to be added to the refuse bin area, to improve visibility for cyclists towards cars coming down the residential ramp.
Mr Walsh gave evidence on traffic circulation and the capacity of the residential streets to handle the increased traffic from the residential component of the development.
Mr Walsh estimated that of the 900 new vehicles per day generated by this development, 30% would make a right hand turn into Jersey Street, particularly during peak hour[20] traffic, proceeding into the residential hinterland. Adding 300 vehicles per day into Jersey Street on top of the 2,000-2,500 that currently use it, would add up to 13% more traffic, which he opined could be handled by Jersey Street. We accept this evidence and we are satisfied that although additional traffic will be generated in Jersey Street, it will be residential in nature (subject to changes to the exit from the loading bay) and not beyond the capacity of the road.
As for supermarket and rubbish removal vehicles using Jersey Street to access their loading bay, Mr Walsh advised trucks must be limited to a 12-metre rigid to be capable of using the turntable that allows ingress to and egress from the site in a forwards direction.
Council and residents sought a physical impediment to the Jersey Street commercial loading bay driveway, preventing commercial vehicles from making a right hand turn into Jersey Street and into the residential hinterland.
Although Mr Walsh's evidence was that a physical impediment to prevent trucks turning right in Jersey Street was not necessary, the architects, Hayball, tendered plans on the final day of the hearing illustrating how an elliptical piece of concrete could be added into the Jersey Street naturestrip to direct commercial vehicles to turn left towards Whitehorse Road. It is our view that such an impediment is appropriate and we agree with Council that this should be supplemented with a sign prohibiting commercial vehicles from turning right into Jersey Street.
The supplementary Walsh report dated 26 October 2010 makes it clear that there are outstanding items that need to be improved on the plans that are not within the jurisdiction of the Traffic Engineer, but are architectural issues. These include direction in which the lift doors face and bin storage areas allegedly inaccessible to residents. We consider these matters need to be addressed.
Turning to provision of car parking, an issue raised by a number of respondent objectors, we find as follows.
The 113 car spaces provided for the supermarket and shop, accessed from Whitehorse Road, achieve a ratio of 4 car spaces per 100m2 of retail floor space. We find this provision adequate to cater for the likely parking demand generated by the customers and staff of the retail uses. We reach this position based on the empirical assessment of car parking demand for another supermarket[21] and the similar ratio accepted by the Tribunal in Silverton Group Pty Ltd.
A total of 212 car spaces, accessed off Jersey Street, are provided for the 173 dwellings proposed. We are satisfied that this provision is adequate for the demand likely to be generated by the residents and visitors to the dwellings having regard to the following:
- The provision meets the Clause 55 standard that specifies 1 car space for each one or two bedroom unit, two car spaces for each three bedroom unit and one car space for every 5 dwellings. Application of these rates to the 91 x 1 bedroom, 79 x 2 bedroom and 3 x 3 bedroom units results in a requirement for 211 car spaces.
- The empirical data provided to us[22] indicates visitor demand at this type of residential development is likely to be around 0.12 spaces per unit. Application of this rate would require 21 visitor car spaces whereas the development provides 35 visitor spaces.
In finding that the car parking provision is acceptable we have had regard to the proximity of the site to public transport which provides convenient access to a wide range of destinations and the location of the site in an Activity Centre that means some services can be accessed by foot.

At a glance

Court

Decision date

Source

Judgment (98 paragraphs)

Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889 (25 November 2010)

Silverton Group Pty Ltd v Boroondara CC & Ors [2010] VCAT 1889 (25 November 2010)

Parties

Legislation Cited (2)