1. Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application PL08/0673 is amended by the substitution of plans TP01, TP02 and TP05 dated Issue 4 - VCAT Issue 1, dated 14 January 2010, prepared by Michael Palmieri Architect.
2. The decision of the Responsible Authority is set aside.
3. In permit application PL08/0673 a permit is granted and directed to be issued for the land at 81 Davison Street Richmond in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Development of the land with two, double storey dwellings (including a half basement and one roof top terrace).

Mr Lorenzo Rigoni, a town planner from Terrain Consulting Group.

Mr John Theodosakis, a town planner from Yarra City Council.

Demolition of an existing single storey dwelling on a corner allotment and construction of two, double storey, semi-detached dwellings with basement car parking.

Each dwelling includes three bedrooms at ground floor with living meals and kitchen at first floor. The basement contains two parking spaces, storage and a laundry for each dwelling. Access to the basement is by a central ramp located between the two dwellings, entering off Highett Street.

Dwelling 2, the eastern most dwelling includes a 44sqm roof top deck, setback from the northern and eastern boundaries. Both dwellings have 8sqm balconies at first floor facing onto Highett Street and 11sqm of terrace on the northern boundary. Light courts are present along the north windows of each main bedroom.

Section 77 Planning and Environment Act 1987.

Clause 32.01-4 (construction of two or more dwellings on a lot).

Other applicable provisions under the Yarra Planning Scheme

State and Local Policy Planning Framework provisions considered under the Yarra Planning Scheme

Clauses 11, 12, 16, 1921.04, 21.05, 21.08, 22.10 and 22.13

An unaccompanied inspection of the site and surrounds was undertaken by the Tribunal after the hearing.

1. SMP Architects lodged a planning permit application for the construction of two double storey dwellings with the Yarra City Council in August 2008. On 30 July 2009, the Council determined to refuse to grant a planning permit on various grounds related to the design response. SMP has applied for a review of the decision by the Council and in doing so has tendered amending plans, said to address the grounds of refusal. The Council does not object to the amendment of the planning permit application by substitution of these plans. However, the Council remains of the view that a planning permit should still be refused.
2. The Council's grounds for refusal have been amended in light of the amended plans, but essentially remain about:
   • The design being a poor response to the neighbourhood character and failing to integrate with the streetscape; and
   • The design being an overdevelopment due to excessive amounts of walls on the boundaries, site coverage and presentation of building mass.
3. A number of local residents had objected to the original proposal and are parties to the application for review. However prior to the hearing, the Tribunal was advised that these parties were satisfied that their particular issues had been resolved through the amending plans. They no longer contest the application for review.

WHAT ARE THE DETERMINATIVE ISSUES IN THIS APPLICATION?

1. Apart from the usual array of zone and Clause 55 requirements within the Yarra Planning Scheme, a number of relevant planning policies are relevant to this application.[1] Mr Theodosakis and Mr Rigoni took me through these in some detail. For the purposes of these reasons it is not necessary to repeat here.[2]
2. It is sufficient to note that there is agreement that under the current planning controls and development policies, the subject land is a site suitable for redevelopment. The disagreement lies in whether the design response respects neighbourhood character and other urban design objectives set out under those planning policies referred to by the parties.
3. Having considered these policies, other relevant planning scheme provisions and the submissions of the parties, the determinative issues in this application are about:
   • The adequacy of the design response to neighbourhood character and streetscape; and
   • The site coverage, the extent of walls along boundaries and the amenity impact to adjoining properties.

While the Council also takes issue with the basement garage configuration, it is an issue that could, if necessary, be addressed through permit conditions.

DOES THE DEVELOPMENT INTEGRATE WITH THE STREET AND FIT WITHIN THE NEIGHBOURHOOD CHARACTER?

1. Essentially the Council's submissions is that the following elements result in an unacceptable design response:
   • The height of the half basement wall above the footpath results in excessive amount of blank wall that fails to engage the public realm of the two street frontages;
   • There is an excessive amount of built form to the Highett Street boundary;
   • The degree of fenestration doesn't reflect local patterns/character and contributes to the blandness of the design;
   • The prominent central garage door is a poor response to the public realm;
   • The blended front entrances to the dwellings have poor expression to the public realm; and
   • The busy nature of competing modular forms and finishes.
2. Council submits that overall, the frontage along Highett Street will look 'monolithic' and is a poorly resolved building form within the broader neighbourhood. There is a concern that the building, presenting mirror images around the central car access, fails to provide each dwelling as a distinguishable, separate entity. The blending of the front entrances into the front walls is said to add to this poor resolution of the two dwellings.

The design response in terms of the site and policy context

1. The Council points to requirements under Clause 55 for new development to respect neighbourhood character and have regard to relevant local planning policy. The Council largely relies on the objectives and strategies set out under local policy to articulate where the design fails.[3] These strategies seek to maintain the generally low rise, urban form of the municipality and for new development to enhance and make a positive contribution to the urban environment. Local policy sets out various objectives and design responses said to assist in achieving these strategies. This includes local policy for built form and design.[4]
2. The Council submits that the response and elevated mass of the southern and western boundary walls do not achieve policy objectives of enhancing the public realm as they do not present a positive and interesting interface of a human scale at the street level.[5] It is said that the design does not include or respond to various applicable guidelines set out to achieve these objectives.
3. It must be remembered that policy is not prescriptive and each case must be considered in terms of how it achieves the balance of various policy goals. Policy guideline do not set out all the ways by which a design can respond to and achieve overall policy objectives. In the Yarra Planning Scheme's local policy a primary requirement is how the design responds to the site's context. Another is for the design to provide interesting and positive designs that are respectful of the site's context. Thus, a consideration of the actual site context is an appropriate starting point.
4. The subject land is located in a portion of Highett and Davison Streets that is defined within local policy variously as inner urban, North Richmond. It is has a robust character of built form dominating the streetscape. It is also an area where there is an evolving character as contemporary building form replaces older form.
5. This is to be distinguished from the character of Highett Street west of the Davison Street intersection. There the streetscape character is noticeably different having smaller, fine grained building scale with modest setbacks, small front gardens and low fences with an absence of built form to the street boundary. However, there is a notable shift from this character to that experienced east of Davison Street, supported in part by the break provided by the large intersection and wide streets.
6. Thus views of the site from key public realm locations contain a mix of contemporary and historical built form that have the following characteristics:
   • Consistent built form to street and side boundaries with some of the adjoining converted factories also built to rear boundaries.
   • Raised ground floor levels and consequently raised entrances;
   • Double storey or large building mass including converted factory buildings as well as more contemporary dwellings;
   • Multiple dwellings in large, attached continuous building form, some of which have split image forms;
   • Very small front garden areas or no front landscaping at all; and
   • Garage entrances on the street boundary.

It is in this context that I have considered and found the proposal to be acceptable for the following reasons.

1. The design turns the front of the site onto Highett Street rather than Davison Street. This reflects the response of other surrounding dwellings along this portion of Davison Street. This response also addresses the longer site boundary on Highett Street. It will result in the loss of the current rear garden space that provides a break between the existing built form and that further to the east along Highett Street. Such a change is acceptable, as the break in building form in this area is the exception rather than the overall general character of continuous (attached) built form.
2. The major criticism of the design is the height of the half basement wall above ground level; a feature that local policy seeks to avoid. I do not find the raised ground floor level of up to 1200mm to be excessive[6] as is suggested by the Council. It is apparent that a number of older and contemporary dwellings in the area have raised internal floor levels. These heights vary. I agree that none are as high as this proposal, nevertheless the pattern of built form can be observed to include raised form.
3. Further, the overall wall heights on the Davison Street boundary, which vary from 1.6m to 4.3m is not excessive when considered against the site's context. The maximum height is similar to the Davison Street wall height of the dwelling immediately to the north (148 Somerset Street). The higher walls are modulated by inset windows and changes in façade finishes. Ultimately the walls step down to a low corner garden at around pedestrian eye level.
4. Along Highett Street, the ground floor wall heights reach a maximum of some 5m, but its presentation of mass is balanced by modulation and variations in façade finishes. The height is comparable to the 4.2m wall height of the adjoining converted factory building.
5. Thus while the floor height may seem at first consideration to be high in order to accommodate the basement car parking, I find that the resulting ground floor scale is reflective of the immediate neighbourhood character.
6. I also find that the degree of street fenestration, criticised by the Council, is acceptable. The generally limited degree of window openings reflects the pattern of fenestrations in the immediate setting along Highett and Davison Streets.
7. Under the amended design, the front entrances will present a clear sense of address for each dwelling and clearly demonstrate the use of the site. The front garage access is consistent with other garage entrances observable in the street and the wider streetscape setting. It is a format that will provide definition between the two dwellings.
8. Given the above, I find that the amended proposal achieves the overall policy goals and those of Clause 55 to respect neighbourhood character and provide a positive response to the site's context.

SITE COVERAGE, WALLS ON BOUNDARIES AND OFF SITE AMENITY ISSUES

1. The overall site coverage, while greater than that set out under the standard of Clause 55.03-3 is consistent with streetscape perceptions of the dominance of built form over landscaping. Council's engineering department has indicates that drainage can be accommodated.
2. As the Council put, the degree of site coverage is not a reason to refuse this application. It is reflective of the site's inner city location and is reflective of the immediate locality. I agree and find that the coverage achieves the overall objective of being respectful of the existing neighbourhood character.

1. Dwelling 2 is proposed to be built to the eastern side boundary, coincident with an existing wall of the adjoining building. This is not at issue in this application. The concern expressed by the Council is that the presentation of building mass and walls along the northern boundary to adjoining residence is unacceptable not withstanding that the setbacks of the building are generally in accord with Clause 55 requirements. The Council submits that the wall length, when taking into account the half basement wall, extends for the full length of the boundary. The inclusion of raised, wooden fences that bound the proposed north facing, ground floor light court/terraces is said by the Council to exacerbate the presentation of visual mass along this boundary.
2. The Council also highlights that there is no visual break in the building mass when viewed from the north.
3. Clause 55.04-2 sets out that the:

...location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.

1. As I have set out earlier the character of built form in this immediate neighbourhood is robust. A number of building along Highett Street have large walls to some or all of their rear boundaries.[7] I therefore concur with Mr Rigoni that not only is the proposed extent of the wall in keeping with that in existence, I find it is generally in keeping with the site's context.
2. Similarly, while there are no breaks in the building form, the overall perception of mass and scale of built form will be comparable to other surrounding forms and will not be out of context with surrounding conditions. In any event the upper levels are well setback and will be partly screened by the lower built form. I do not find that the degree of impact to be unacceptable in this context.

1. The Council suggests that the layout of the basement car park is tight and will require multiple manoeuvres for entering and departing cars. An alternative is suggested that would require reconfiguration of the basement conditions.
2. Which either configuration is adopted I accept that there will be some manoeuvring required to park vehicles. However the proposed configuration provides a 4.8m wide access way in combination with 4m wide car spaces. This is 0.8m wider than the standard that applies under Clause 55.03-11. I am satisfied that there is sufficient room for safe manoeuvring and that the arrangement is workable and practical for residents. I do not consider it necessary to reconfigure the basement in the manner suggested by the Council. Nor is there a need to provide turning templates for the existing proposal. If he Council has such a concern, the proper time to request such information is during the assessment phase of the application and not as an afterthought. If such templates were to prove the arrangement to be unworkable then is the more appropriate time to amend plans.

1. It follows from the above reasons that I find the amended design response to be acceptable. I will therefore direct that the decision of the Responsible Authority be set aside and that a permit issue subject to the conditions set out in this order.
2. In preparing the permit conditions, I have had regard to the submissions made by the parties and to those matters raised in these reasons.

The permit allows development of the land with two, double storey dwellings (including a half basement and one roof top terrace) in accordance with the endorsed plans and permit conditions.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans TP01, TP02 and TP05 dated Issue 4 - VCAT Issue 1, dated 14 January 2010, prepared by Michael Palmieri Architect, but further modified to show:
   • (a) Any modifications to the vehicle entry ramp as required under Condition 8 of this permit;
   • (b) A translucent material or visibility splays on either side of the entrance to the car park in order to view pedestrians;
   • (c) Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters;
   • (d) Storage areas of at least 6 cubic metres for each dwelling;
   • (e) A plan notation stating that the site will be drained to the legal point of discharge to the satisfaction of the Responsible Authority;
   • (f) A plan notation stating that the on-boundary boundary walls will be cleaned and finished to the satisfaction of the Responsible Authority;
   • (g) The location of any air conditioning units, heating units, hot water services and other plant and machinery required to service the dwellings confirming they are not visible from the street and not located on the balconies.
2. All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
4. Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and shall be maintained to the satisfaction of the Responsible Authority.
5. The installation of the new vehicle crossing to service this development must comply with the following:
   • (a) The existing grated pit to be converted to a grated junction pit (at the new crossing) and a new grated side entry pit to be constructed adjacent to the new crossing;
   • (b) The nearby channel to be re-graded into the new grated side entry pit and the road pavement adjusted to match;
   • (c) The proposed vehicle crossing shall be constructed in accordance with City of Yarra Standard Drawings and Specifications;
   • (d) The development's finished floor levels relative to the existing footpath and road levels must be such that pedestrian and vehicular access accord with Australian Standards;
   • (e) Existing footpath, kerb and channel, and road pavement surface levels must not be altered; and
   • (f) The design and construction of the proposed vehicle crossing must also satisfy the requirements of Council's Community Amenity unit's Vehicular Access into Properties (Info Sheet and Application Form) before a vehicle crossing permit can be issued.
6. The design of the new vehicle crossing and the associated civil infrastructure works shall be submitted to the Responsible Authority for assessment and approval, as required under the Road Management Act 2004. The cost of any civil infrastructure works must be borne by the permit holder.
7. The redundant vehicle crossing on the north side of Davison Street shall be broken out and reinstated with kerb, channel and paving of the surrounding area in accordance with Council's engineering standards and requirements. The cost of these works must be borne by the permit holder.
8. The ramp design of the car park must comply with the minimum requirements set by the Australian/New Zealand Standard AS/NZS 2890.1 for domestic properties and ensure that vehicles do not scrape or bottom out. The access ramp shall be widened by 300 mm on either side in order to provide kerbing as required by the Standard.
9. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between 7:00am and 6:00pm Monday to Friday (excluding public holidays) and 9:00am to 3:00pm, Saturday and Public Holidays. No work is to be carried out on Sunday, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
10. This permit will expire if:
    • (a) The development is not commenced within two (2) years from the date of this permit;
    • (b) The development is not completed within four (4) years from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made before the permit expires or within 3 months afterwards.

[1] These policies are set out in the information summary table of these reasons

[2] The written submissions and other material tendered by the parties is retained on the Tribunal's file.

[3] These are set out in Clauses 21.05, 21.08, 22.10 and 22.13 of the Planning Scheme.

[5] Largely set out under Clause 22.10-3.4.

[6] This height varies from around 1000mmm to 1200mm depending on location.

[7] Observable in photographs tendered in the hearing and retained on the Tribunal's file.