SPEC Property Development Pty Ltd v Boroondara CC [2010] VCAT 1216

SPEC Property Development Pty Ltd v Boroondara CC [2010] VCAT 1216 - VCAT 2010 case summary — Zoe

[28]

In December 2009, Boroondara City Council determined to refuse to grant a planning permit for the construction of a four storey apartment building and basement. The permit applicant has sought a review of that decision by the Tribunal. Seventeen objectors have joined as parties to the matter.
The review site is a large, vacant lot sited close to Power Street. Land adjoining and opposite is developed for dwellings, which include modest single storey bungalows, elaborate dwellings with heritage significance and two and three storey walk-up flats from the 1960s/70s. A two storey aged care home and a recently completed three storey apartment building are located near to the review site.
The site was used for an institutional use that included two storey buildings on the northern part of the land. The site was cleared approximately four years ago. In 2008 the Tribunal approved planning permit PA07/00109 for a development on the land comprising two buildings, each being three storeys over a basement. The development would accommodate 29 three bedroom dwellings. That permit has recently been extended by council.
It is proposed to develop the land for a four storey apartment building. The building would have a maximum width of 21 metres, a depth of 87 metres and a height of 13 metres. Whilst it appears as one building, it has been designed to operate as three separate buildings with three ground level entries and lift/stair access. Design details distinguish the three separate buildings.
Council and the resident objectors oppose the development. They consider that the height, width and depth of the building would be unduly large and inconsistent with the character of the neighbourhood and the streetscape. Its large basement would constrain opportunities for mature canopy landscaping and screening. Local residents are concerned that the 81 apartments would generate levels of traffic and on-street car parking in excess of the capacity of the local street network. Council and the local residents are concerned that the size of the building would have adverse impacts on the private open spaces of adjoining dwellings.
The permit applicant submits that the development is consistent with the planning policy framework, the character of the locality, including Power Street and Riversdale Road, and that it fits comfortably into the neighbourhood. It also submits that it would be a good neighbour to the adjoining dwellings.
The key matters that we need to determine are:
1. Would the development be consistent with the entirety of the planning policy framework, including respecting the character of the neighbourhood?
2. Would the development impose adverse impacts on adjoining properties?
3. Would the traffic and parking arrangements be satisfactory?
4. Would the development provide satisfactory amenity for its future residents?
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, we have decided to grant a planning permit. Our reasons follow.

[30]

All the parties agreed that the review site should be considered as a rare infill opportunity to provide a range of smaller dwellings for single and two person households. Mr Song, Mr Pitt, Mr Sidgwick and Mr Barber generally agreed that the development of the site for residential apartments would make a positive contribution to the objectives of the planning policy framework. Mr Pitt and Mr Sidgwick thought that the height and massing of the building would comfortably fit into the neighbourhood, Mr Barber and Mr Song thought the development to be out of scale and too large.
We are satisfied that the proposed development has strategic support and is generally consistent with the objectives and strategic outcomes set out in clauses 12, 14 and 16. The proposed development would enable a significant number of households to enjoy convenient access to the principal public transport network as they are within a few minutes' walk to tram routes nos. 70 and 75. The Hawthorn railway station is located approximately 800 metres from the site. The site's proximity to public transport enables people to choose not to own a car, or to use public transport rather than using their car for some trips, with community benefits of reducing emissions and their consumption of oil. They may also walk or ride a bicycle with resulting health benefits.
The site is also within walking distance to neighbourhood shopping centres at the intersection of Glenferrie Road and Riversdale Road and at the corner of Power Street and Burwood Road. Primary schools and other community facilities are also proximate to the review site. Extensive regional open space adjacent to the Yarra River is also within a short walking distance to the south of the review site. Accommodating new households that can access these facilities meets the objectives of clause 12 to make better use of the substantial existing infrastructure invested in Melbourne's established suburbs, particularly public transport. People living in Hawthorn also enjoy convenient access to a vast array of employment and education opportunities located in Melbourne's central activity district and inner suburbs. We note that accommodating a greater proportion of new households in the established suburbs would reduce the amount of land on Melbourne's fringes that needs to be converted to urban uses, thus protecting non-urban land that has productive, ecological and landscape values.
Melbourne @ 5 million generally confirms the strategic planning directions of the earlier Melbourne 2030. Melbourne should continue to provide a more diverse range of dwellings and an increasing proportion of households should be able to live in the established suburbs rather than on Melbourne's fringes. Melbourne @ 5 million also notes that Melbourne is growing faster than previously forecast, and is now expected to reach five million persons by 2020 rather than 2030. Approximately half of the expected 600,000 new households should be accommodated in established suburbs rather than on Melbourne's fringes. This particular development proposal would make a positive contribution to meeting that objective.
Clause 16.05 encourages the provision of affordable housing by, amongst other things, increasing choice in housing type, tenure and cost to meet the needs of households as they move through life cycle changes and to support diverse communities. This development includes one bedroom apartments that would be an attractive and affordable option for many smaller households.
State and local planning policy requires that new residential development should positively contribute to a greater diversity of housing stock, better use of existing infrastructure and greater housing affordability. In doing so, clauses 12 and 16.02 encourage new developments to be respectful of the character of the local neighbourhood. They should comfortably fit within, and integrate with the massing, siting and appearance of other dwellings in the street.
The local planning policy framework encourages new development to respect and be consistent with the character of the local area. Development proposals should conserve and enhance the existing character through thoughtful and high quality design. Clause 22.07 encourages design solutions that enhance and respond creatively to the existing neighbourhood character of residential areas. Significantly new developments are expected to respond to, and fit comfortably within the existing neighbourhood character, rather than a preferred character than anticipates some change.
All parties agreed that Lisson Grove has a variable character. The character was described by the Tribunal in its consideration of an earlier proposal on this land[3]. We reproduce this description at length as it provides an accurate and relevant description of the context of the review site. We agree with Mr Pitt that there has not been any material change in the context of the site and consider this to be an accurate description of the context of the site. The description is as follows:

[36]

The description of the site notes that it rises approximately five metres from Lisson Grove to its rear boundary. It also notes that at that time, part of the former institutional buildings remained on the site. These buildings were in the order of three storeys in height, and were located towards the front of the site. These buildings have now been removed and are the only material change to the context of the review site.
Mr Song put that a three storey building would fit comfortably within the neighbourhood, but that four storeys would be intrusive. He also put that the high site coverage and large built form would be inconsistent with the existing neighbourhood character as it would constrain landscaping opportunities and dominate the streetscape.
We consider that, with some changes, the four storey built form and the extent of site coverage would be appropriate. We consider that the two and three storey buildings that have frontages to Power Street form part of the context and character of the review site. They are visible from, and are in close proximity to the review site. Furthermore, the apartment building to the east, and a two-and a half storey aged care facility at the southwest corner of Lisson Grove and Lochrae Court indicate that three storeys is an integral part of the Lisson Grove streetscape.
The Tribunal has held on many occasions that a variance of one storey in the height of adjoining and nearby buildings is appropriate in most streetscapes. It has also held that in an urban context, buildings are expected to be seen and that visibility is not a ground to refuse a proposed development. Variation adds visual interest to the streetscape and adds positively to its rhythm. In this proposal, the fourth level is set back 13.4 metres from Lisson Grove, a further 4.1 metres behind the lower levels. The frontage would also be screened by mature canopy trees and fencing that would diminish the perception of height.
Mr Barber and Mr Song submitted that, with a width of 21 metres, the proposed building would be unreasonably imposing to Lisson Grove as the review site has a relatively large frontage and the building would be set back only seven metres, less than the prevailing setbacks in the street.
We agree that with a width of 21 metres, the building could have an imposing presence to Lisson Grove. We acknowledge that this appearance would be filtered by the mature landscaping and fencing in the front setback. The building would be set back 8.3 metres to the eastern boundary which would diminish its presence to Lisson Grove. We note that at seven metres setback to Lisson Grove, it is set forward relative to mo. 8 Lisson Grove and most of the other dwellings in this part of Lisson Grove. We consider that it would integrate better with the streetscape if the front setback is increased to nine metres. This would provide additional opportunities for landscaping and make its frontage more consistent with its neighbours. The greater setback would also diminish the perceived size of the building in the streetscape by making it appear somewhat more recessed.
Mr Song put that the relatively high site coverage and depth of the building was inconsistent with the character of the neighbourhood and inconsistent with local planning policies. Council submitted that separating the building into two or three buildings would be a better design solution. We do not agree. Buildings on the sites fronting Power Street , the apartment building abutting to the east, the nearby aged care facility and other nearby developments also have high site coverage and limited landscaping to the sides of the buildings. The proposed site coverage is consistent with other development in this area. Given the depth of the site and building, the entirety and depth of the building would not be readily visible or perceived from Lisson Grove or the abutting properties. Separating the building into smaller buildings would achieve little to reduce perceived bulk, as from many perspectives, several buildings would be seen as one built form unless there are substantial gaps between the buildings.
Even if the proposal was significantly more intense that the prevailing neighbourhood character, we would be inclined to support it, provided that it does not impose adverse offsite impacts on its neighbours. This Tribunal has concluded in several cases that 'timid' developments that replicate the prevailing built form are not consistent with the entirety of the planning policy framework. As we have noted above, Melbourne is experiencing rapid growth of households and population, and much of this growth is to be accommodated in the existing suburbs. Sites such as this that are well served by infrastructure are rare and the opportunity provided by this site to make a contribution towards the achievement of housing and settlement policies should be embraced. The planning scheme does however require this proposal to demonstrate that its design has responded to the existing character of the neighbourhood. For the reasons we have outlined above, and subject to the provision of an increased front setback, we are satisfied that this proposal has responded appropriately to the eclectic existing character of the neighbourhood.
The massing and perceived bulk of buildings can be diminished by effective landscaping. Mr Song and Mr Barber submitted that the building's substantial basement (covering approximately 80 percent of the site) constrains the opportunities for planting mature trees that could effectively filter and screen the large building.
Mr Pitt called expert evidence from Mr McWha regarding the proposed landscaping for the development. Mr McWha advised that the front setback of seven metres provides sufficient space for larger trees (up to 15 metres) to grow successfully. He proposes two additional trees in the street reserve and three mature and two medium sized trees in that front setback to filter views of the building.
He further advised that the proposed planter gardens would be 700mm deep and two metres wide. These would be sufficiently deep to support medium sized vegetation including trees to four metres. Such vegetation could prosper for up to 40 years with routine maintenance and care.
The basement is set back two metres to the eastern and western boundaries and three metres to the southern boundary. Mr McWha advised that these setbacks were sufficient to support medium sized trees such as magnolias, pears, and crepe myrtles, which would have a height of six metres. The setbacks would enable the root systems to become well established and stable. Much of the vegetation included in the draft landscape plan comprises evergreen species that would screen the building throughout the year. He recommended that the landscape strip adjacent to the entry to the basement on the western boundary be widened to 1.8 metres to enable a more effective landscape strip to be implemented.
We note that Mr McGauran concluded that the bulk of the building would be filtered and screened by the proposed landscaping, and that he was satisfied with the entirety of the proposed landscape plan.
We are satisfied that the mix of mature and medium sized vegetation proposed in the landscape plan would effectively filter views of the building and diminish its perceived bulk and mass. We are also satisfied that the hard surface landscaping and the treatment of the three entries to the building would provide an attractive pedestrian entry to the site and each of three parts of the building. We are satisfied that this proposal is consistent with the entirety of the planning policy framework.
We now turn to whether it would be a good neighbour to its adjoining properties.

[43]

Mr McGauran provided expert advice regarding the architectural and urban design qualities of the proposed building. He concluded that, with some changes, the building would be a positive contribution to the locality and provide satisfactory amenity for both neighbours and residents.
He expressed concern that the development could appear as excessively bulky, particularly to the south and east. He recommended various changes to diminish the massing of those facades and to introduce some additional recesses and breaks in the building. The particular changes he recommended are:
- Strengthen the entry sequence on the eastern elevation through improved use of landscape materials.
- Increase the setback of the basement and ground floor of the southeast corner to 4.5 metres to increase the area for landscaping.
- Relocate storage units in the basement to the northeast corner of the basement.
- Widen the landscape strip on the western boundary at the entry to the basement.
- Increase the setback at the southeast corner at the second and third levels by modifying the bedroom of unit C07.
- Include additional recesses at the upper levels of the eastern and western elevations.
Mr McGauran also recommended changes to the front wall façade and the return wall by using rheinzinc in the same alignment to strengthen the vertical alignment.
Mr Song dismissed Mr McGauran's proposed changes as 'token' as they failed in his view to address the extent of visual bulk. However, in the absence of specific recommendations from council's urban designer apart from the proposal to separate the building into two parts, we accept the expert evidence that these modifications would increase the articulation of the building and diminish its bulk and mass.
We have noted above that we are concerned that the third and fourth levels of the building would be intrusive to the southern neighbours. We consider that the building setback should be increased. We propose that the setback of the third level to be increased by two metres to eight metres. This would result in the fourth level becoming more visible from the properties to the south. We consider that this level should be recessed so that it would not be visible from the swimming pool or gazebo in nos. 11 and 17 Riversdale Road respectively. Consequently the fourth level should be further recessed by an additional six metres to 16 metres from the southern boundary. Any terraces or balconies should not intrude into this setback.
We also consider that the fences on all the boundaries should be two metres high.
With these changes, we consider that the development would not have unacceptable amenity impacts on neighbouring properties.

[45]

Lisson Grove is a local residential street that provides a connection between Power Street and Glenferrie Road. It has a carriageway width of 8.8 metres and contains several speed humps, including one adjacent to the review site. It carries approximately 1,500 vehicles per day. Right hand turns from Power Street into Lisson Grove are banned between 4.30pm to 6.30pm on weekdays.
Onstreet car parking is unrestricted adjacent to the site and elsewhere on the south side of the street. Parking on the north side is restricted to residents with permits between 8.00am to 6.00pm Monday to Friday. Onstreet car parking at the western end of Lisson Grove appears to be heavily utilised, particularly in the evenings and weekends.
Mr Barber submitted that the provision for parking within the development would be inadequate and it would generate additional pressure on the kerbside spaces. He also submitted that the development would generate additional traffic, particularly in the peak periods, that would lead to undue delays. Council did not contest the development on traffic or parking grounds.
Mr Symons provided expert traffic and parking evidence. He advised that the development would be likely to generate in the order of 405 vehicle trips per day, and about 41 trips in each of the morning and evening peak hours. He concluded that queues exiting Lisson Grove in the morning peak hour may become longer due to the additional traffic generated by the development. However, traffic signals at the intersection of Power Street and Riversdale Road, and pedestrian signals in Power Street north of Lisson Grove create gaps in the traffic and provide turning opportunities. Mr Symons considered that vehicles would be able to exit from Lisson Grove into Power Street without undue delays. Mr Symons also considered that the additional traffic would be well within the environmental and design capacity of Lisson Grove. We are satisfied that the proposed development would not generate adverse traffic conditions on the road network.
In respect to parking, the proposed development provides 81 spaces for residents and 16 spaces for visitors within a basement. The visitor car spaces are located at the north end of the basement, close to the entry ramp. They would be separated from the resident car parking by security gates. We are satisfied with this arrangement. We consider that the provision of parking is adequate to meet the anticipated car ownership of the residents. We are also satisfied that visitors would be likely to use the spaces within the basement, particularly as they become familiar with the building.
We are satisfied that the proposal includes adequate provision for storage of bicycles and that satisfactory arrangements can be made for the storage and collection of garbage by a private contractor.
The access is located at the western end of the development, and the proposed crossover would be adjacent to an existing speed hump. We concur with Mr Symons' advice that the speed hump can be enlarged or relocated, and that it is not an impediment to this proposal. The final arrangement is a matter for further discussion between the applicant and council.

[47]

The proposed development would accommodate 81 dwellings, 26 of which would be one bedroom apartments and 55 would be two bedroom apartments. Thirty-one apartments would have studies in addition to bedrooms.
In general, we consider that the proposed development would provide satisfactory amenity for its residents. We note that, apart from the provision of landscaping, council did not contest the internal amenity of the proposed dwellings. We consider that the following aspects of the development have been designed in a satisfactory manner:
- The three separate entries and lift wells provide a smaller scale and an enhanced sense of identity.
- Site coverage is less than the standard in clause 55.
- Car parking is adequate and secure.
- Entries and car parking areas can be under active surveillance.
- Site coverage and permeability are acceptable.
- There would be minimal walls on boundaries.
- There would be good solar access and daylight to new windows.
- Clothes drying facilities are provided.
- Overlooking of private open space and habitable rooms between the dwellings has been minimised.
Several aspects of the development were explored at the hearing in detail, these being provision of private open space, daylight to bedrooms and provision of storage. In respect to storage, it is proposed that this requirement be met by the provision of storage cages located above the car parks. Each cage would have three cubic metres capacity. We consider this storage arrangement to be satisfactory. The units are small and have very limited open space that would not require tools and maintenance equipment. We would expect that most occupants of these dwellings would have limited storage needs.
Mr Crowder and Mr McGauran advised that the bedrooms of approximately one quarter of the dwellings rely on borrowed light rather than having direct light. It was submitted that this is acceptable in single bedroom dwellings as the bedroom can remain open, as there is usually only one or two persons in the apartment. We consider that the number of bedrooms relying on borrowed light to be excessive. We consider that access to direct light in a bedroom makes a significant contribution to the amenity of a dwelling. We concur with Mr McGauran's recommended changes to improve the amenity of the bedrooms in apartments A20, B03, B11, C05, C06, C11, C12, C17 and C18 by providing an operable wall opening of at least 1.8 metres orientated towards the external balcony to enhance access to light and ventilation.
Mr McGauran also recommended that improved ventilation and access to light should be provided to many of the apartments with second bedrooms. He recommended that a louvred window with minimum dimensions of 1.8 meters by 0.6 metre be installed to the second bedrooms in apartments A10, B01, B09, B15, B22, B23, B24, B26 and B27. As above, we consider that these recommendations will improve the quality of the apartments for their occupants.
The dwellings have a highly variable provision of private open space. At the ground level, it varies from 10.8 square metres to 82 square metres. At the first and second levels, the provision varies from 5.5 square metres to 42 square metres for each apartment. On the fourth level, private open space ranges from 10.6 square metres to 56 square metres. On the second and third levels, 15 of the 49 apartments have less than the eight square metres required by standard B28 of clause 55. In our view, the opportunity to use a reasonable sized balcony to talk with friends, read a book or sit and listen to music is an important part of the amenity of a dwelling. We consider that all apartments should provide at least eight square metres of private open space that is at least 1.6 metres in width consistent with standard B28 of clause 55.
Mr McGauran supported the submission that units AD1 and AD2 that face Lisson Grove should have direct access to the street. We concur with that change to encourage a more active frontage and to provide additional breaks in the street frontage.

[53]

All columns located adjacent to car spaces should be set back a distance of between 0.4m and 1.4m from the car park aisle. 2. A Waste Management Plan in accordance with Condition 21 of this permit. 3. The provision for stairs from the visitor car parking area in the basement to ground level. 4. Details of the front fencing to Lisson Grove generally in accordance with the landscape plan prepared by Formium Landscape Designers dated April 2010. 5. The location of water tanks to capture and store recycled water from the building. 6. The installation of screening or obscure glazing to a height of 1.7 metres above the floor level to all windows or balconies to minimise overlooking in accordance with standard B22 of clause 55.04-6. 7. All canopies over balconies or terraces reduced to comply with side and rear setback objectives and standards of B17 of clause 55.04-1. 8. Modifications generally in accordance with the expert recommendations prepared by Mr R McGauran of MGS Architecture dated June 2010 and presented to the Victorian Civil and Administrative Tribunal that include: * The setback of the basement and ground floor of the southeast corner increased to 4.5 metres from the eastern boundary to increase the area for landscaping. * Relocate storage units in the basement to the northeast corner of the basement. * Widen to 1.8 metres the landscape strip on the western boundary at the entry to the basement. * Increase the setback at the southeast corner at the second level by modifying the bedroom of unit C07 and relocating the terrace to the north side. * Increase the setback at the southeast corner by relocating the kitchen of Unit C13 within the apartment. * Provide additional recesses at the third level of the eastern elevation by replacing the second bedrooms of units B17 and B20 with terraces. * Provide an additional recess in the western elevation of level 3 by deleting bedroom 2 of unit B24. * Include additional recesses at the fourth level of the eastern elevation by recessing bedrooms 1 of units B25 and B28 at least 2 metres within the elevation. * Reduce in length the solid screen wall between units A29 and A30. * Provision of operable walls with openings of at least 1.8 metres orientated towards the external balcony in apartments A20, B03, B11, C05, C06, C11, C12, C17 and C18 to enhance access to light and ventilation. * Provision of louvred windows with minimum dimensions of 1.8 meters by 0.6 metre installed to the second bedrooms in apartments A10, B01, B09, B15, B22, B23, B24, B26 and B27. * Provision of direct access from apartments AD1 and AD2 to Lisson Grove.

At a glance

Court

Decision date

Before

Source

Judgment (101 paragraphs)

SPEC Property Development Pty Ltd v Boroondara CC [2010] VCAT 1216 (16 July 2010)

SPEC Property Development Pty Ltd v Boroondara CC [2010] VCAT 1216 (16 July 2010)

Parties