Certificates of Title Volume 7581 Folio 004 and Volume 4119 Folio 746.

[2002] VCAT 448

The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for the land at 60-62 Rathmines Street, Fairfield.

The construction of seven dwellings, in a two storey building with basement car parking in accordance with the endorsed plans.

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans must be drawn to scale with dimensions and three copies must be provided. The plans must generally be in accordance with the plans submitted with the application and the landscape plan prepared by Michael Smith dated 24 May 2002, but modified to show:

(a) west facing windows of Unit 6 and Unit 7 have fixed obscure glazing in any part of the window below 1.6 metres above finished floor level;

(b) basement car parking in accordance with the recommendations contained in the letter dated 13 May 2002 from Gillian Austin, Traffic Engineer, Grogan Richards to Fulcrum Town Planners.

(c) the southern boundary wall adjoining VicTrack land to be finished with appropriate material and colour to the satisfaction of the Responsible Authority;

(d) provide timber trellis to southern boundary fence so that the overall height of the fence is at least 1.8 metres above the finished floor levels of Unit 2 and Unit 3;

(e) access width and ramp details to the satisfaction of Council's Traffic Engineer;

(f) bin storage area provided for all apartments in locations to the satisfaction of the Responsible Authority;

(g) pergola type protection provided to Units 2 and 3 over external door exits facing west;

(h) double glazing to be provided to the habitable room windows of Units 4 and 7 facing south to the railway line;

(i) all walls within the development to be of a suitable standard to reduce noise transference;

(j) the southern boundary wall shall be appropriately detailed to the satisfaction of the Responsible Authority.

2. Landscaping must be undertaken in accordance with the endorsed landscape plan.

3. The layout of the site and/or the size of the proposed or existing buildings and works and/or the internal layout and use of the buildings as shown on the endorsed plans shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Responsible Authority.

4. Before the use starts, areas set aside for parking of vehicles and access lanes as shown on the endorsed plans must be:

(a) constructed to the satisfaction of the Responsible Authority;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority;

(d) drained and maintained to the satisfaction of the Responsible Authority;

(e) linemarked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority;

(f) parking areas and access lanes must be kept available for these purposes at all times.

5. The stormwater from the property is to be via one of the following methods:

(a) connect to the existing pit in Clarke Street to Council requirements with the discharge from the whole site being limited to not more than 0.35 coefficient of runoff with a return period of one in five years. Catchment times are to be provided by Council's Engineering Services Department.

(b) connect to the existing pit in Clarke Street to Council requirements subject to payment of a drainage contribution to Council's Technical Services Department of $1,300.00.

6. All plumbing and external services on external walls shall be concealed to the satisfaction of the Responsible Authority.

7. Concrete vehicular crossing shall be constructed to Rathmines Street to the satisfaction of the Responsible Authority and any existing crossing or crossing opening shall be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

8. Dividing walls between dwellings should be constructed to limit noise transmission to 45 STC (Sound Transmission Class) in accord with Part F (5) of the Building Code of Australia.

9. No drainage or effluent shall be discharged onto VicTrack land without prior approval.

10. No excavation or construction on or near the common boundary with VicTrack property without the prior consent of VicTrack.

11. Entry onto VicTrack land shall be at the discretion of VicTrack and upon the conditions specified.

12. Prior to the commencement of the development, the owner of the subject land will enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 whereby the owner covenants and agrees to remove any graffiti that is placed on the development's wall on its common boundary with Victorian Rail Track. Such agreement shall be prepared at the cost of the permit applicant/owner and be registered on the title(s) to the subject land under Section 181 of the Act.

13. This permit shall expire if one of the following circumstances applies:

(a) The development is not commenced within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

NOTE: Nothing in the grant of this permit should be construed as granting any permission other than planing permission for the purpose described. It is the duty of the permit holder to acquaint himself with and comply with all other relevant legal obligations (including any obligation in relation to restrictive covenants and easements affecting the site) and to obtain other required permits, consents or approvals.

NOTE: Any failure to comply with the conditions of this permit may result in action being taken to have an Enforcement Order made against all persons having any interest in the land and may result in legal action or the cancellation of this permit by the Victorian Civil and Administrative Tribunal.

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For the Applicant for Review: Mr Dominic Scally, Best Hooper Solicitors. Mr Scally called Mr Stuart McGurn, Director, Fulcrum Town Planners, to give evidence.

For the Responsible Authority: Mr John Glossop, Glossop Town Planning for the City of Darebin.

For the Respondent/Objectors: Ms Margaret O'Cain, Ms Lorette Orsini and

Ms Louise Wilson appeared in person. Ms O'Cain and Ms Orsini made oral submissions. Ms Wilson presented a written submission.

1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Darebin to refuse to grant a permit (in Application No. D/486/2001) for the land at 60-62 Rathmines Road to be used/developed for the purpose of seven dwellings in a two storey building with basement car parking.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Scally requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application and substituting the name of the owner of the land, Station Homes Pty Ltd, as the applicant in place of Fulcrum Town Planners.

3. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 24 April 2002 detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.

4. Mr Scally briefly outlined the nature and extent of the changes. These included:

* An overall reduction in the height of the development principally achieved by excavating the basement car park further and reducing the roof pitch.

* Increase in the size of the basement car park in order to provide tandem spaces for all two bedroom apartments.

* Deletion of car space `No. 7' (positioned along the southern wall) in order to improve vehicular access into the tandem car spaces.

* Replacement of the annotated `visitor' car space adjacent to the roller door entrance with a car space for Unit 3 (single bedroom unit).

* Replacement of a north facing window of Unit 1 with a pair of doors.

* Redesign of the north facing bedroom windows of Unit 2.

* Inclusion of front fences along the Clarke Street frontage.

* Replacement of the proposed Jarrah picket fence facing Rathmines/Wingrove Streets with a timber brush fence.

* Replacement of the clear glazed windows abutting the southern property boundary with glass blocks.

* Installation of a row of south facing `highlight' windows providing natural light to the bathrooms, kitchen, etc. of Units 5 & 6.

* Provision of fixed horizontal awnings above the majority of external windows.

* Replacement of the face brickwork along the Clarke Street elevation with cement render finish and a reduction in the wall height (by approximately 0.5 metre).

* Additional planting along the Clarke Street frontage.

* Deletion of steps within the balconies of Units 5 and 6.

5. There was no objection to the substitution of the plans or to the substitution of the name of the applicant. The Tribunal made the amendment in the manner requested.

6. The subject site comprises two allotments located on the west side of Rathmines Street at the intersection with Clarke Street. The site is irregular in shape and has a frontages of 19.5m to Rathmines Street, 30.4m to Clarke Street, and an area of 654sq m. The site is adjacent to the Fairfield Railway Station.

7. The Tribunal finds the following description of the site and locality, taken from Mr McGurn's written submission, to be an appropriate one:

No. 60 is occupied by a single storey brick factory building sited at the western end of the lot. In front of the factory is a gravel hard standing area connected to a vehicle crossover onto Rathmines Street. The factory is built along approximately 10 metres of the common boundary with No. 432 Clarke Street (to the west) and also abuts part of the northern boundary. A paling fence of between 1.9m and 2.0m is constructed along the side and rear boundaries where not otherwise occupied by building. Until recently, the land was used as a welding repairs workshop.

No. 62 Rathmines Street has frontages to Clarke Street and Rathmines Street. The land is occupied by a single storey weatherboard hall formerly the venue of an Anglers Club. The hall fronts Rathmines Street from which there is a 6.4 metre setback. The hall has a 2.1 metre side setback from Clarke Street. At the rear of the hall is a small galvanized iron shed. Vehicle access to the land is available via Rathmines Street where there is a concrete crossover. Around the perimeter of the land is a paling fence of between 1.6m and 1.8m high, except at the frontage where there is a low-rise rail fence.

The subject site forms part of a residential neighbourhood which encompasses a large part of the suburbs of Fairfield, Alphington and Northcote. The neighbourhood is intersected by the Hurstbridge railway line which directly abuts the southern boundary of the site. Further south of the railway line is Heidelberg Road which is an arterial road.

Rathmines Street, to which the subject site has an address, extends in a north-south direction between Heidelberg Road and beyond Darebin Road to Mansfield Road (although there is no direct crossing of the railway line). Rathmines Street is a collector street, as is Wingrove Street and Clarke Street which intersect it. Station Street runs parallel with Rathmines Street and is designated as a main road. Land at the southern end of Station Street, where it intersects the railway line, and alongside the Fairfield Railway Station, is zoned for commercial purposes (Business 1 Zone) and comprises a mix of offices and shops. Commercial premises extend into Wingrove Street, adjacent to the subject site.

The subject site abuts a single storey weatherboard house to the west at No. 432 Clarke Street. The house is setback 1.1m from the common boundary and has a 5.9m front setback and conventional rear yard. Beyond this property, at No. 430 Clarke Street is a single storey brick house with a 4.1m front setback. To the north, on the opposite side of Clarke Street is a single storey weatherboard house fronting Rathmines Street (No. 64). A railway reserve (Hurstbridge line) is located to the south of the subject site. A telecommunications tower is constructed on part of the reserve which is visible above the height of buildings in Clarke Street.

8. Mr McGurn described the proposal in the following terms:

It is proposed to demolish the existing buildings that occupy the subject site and construct 7 dwellings within a two storey building and associated basement car park. A schedule of the proposed development is included below.

Four of the dwellings are located at ground level and the remaining three dwellings at the upper level of the building. All are arranged around a central pedestrian foyer and stairwell that is accessible via Clarke Street. The ground level dwellings have outdoor courtyards of between 37 sqm and 62 sqm, while each upper level dwelling has a balcony of between 17 sqm and 29 sqm.

Vehicle access to the basement car park is at the south east corner of the site via Rathmines Street. Provision is made for 14 car spaces within the basement, of which 12 are arranged in tandem. Stairs lead from the car park to the ground level foyer above. The car spaces will be allocated in the following manner:

2 car spaces (in tandem) per two bedroom dwelling

The proposed building employs setbacks from both street frontages -generally 4.35m from Rathmines Street and a minimum of 2.0 metres from Clarke Street. A minimum 4.0m setback is also incorporated from the western boundary with No. 432 Clarke Street. The building abuts 12.95m of the south boundary of the site, alongside the railway reserve.

The ground floor dwellings have a finished floor level at RL 10.50 which steps up by 600mm to RL 11.10 at selected locations to accommodate the basement car park. The upper level dwellings have a floor level at RL 14.10 (except for the balconies fronting Clarke Street which are at RL 13.91). The overall height of the development measured to the highest point of the eaves is 7.9 metres.

The dwelling will be constructed of concrete panels with a cement render finish. The roof will be colourbond steel and the balconies will feature acid-etched glass balustrading.

9. The relevant planning controls were fully set out at pages 3-8 of the Responsible Authority's submission, which I adopt for the purpose of this determination.

10. The subject application for permit (No. D/486/2001) was lodged with the Responsible Authority on 24 July 2001. Following the giving of notice of the application, eleven objections were received. The grounds for objection were summarised by Mr Glossop as follows:

* Will affect the heritage significance of the Fairfield Railway Station

* Car parking is inappropriate, car access will cause safety issues.

11. At its meeting on the 10 December 2001 the Council's delegate resolved to refuse to grant a permit on the following grounds:

* The proposal is inappropriate in terms of neighbourhood character.

* The density of the development is inappropriate for the site.

* The proposal would result in increased traffic and car parking for the area.

12. The subject application for review was lodged on 16 January 2002. The stated grounds for review were that:

1. The proposal is consistent with the State and Local Planning Policy Frameworks of the Darebin Planing Scheme and demonstrates proper and orderly planning.

2. The density of the proposed development is appropriate for the site.

3. The proposal is appropriate in terms of the neighbourhood character.

4. The proposed car parking provision will adequately cater for likely future user needs and will not create traffic congestion within the surrounding street network.

13. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area north of the railway line.

14. The principal issues for consideration in respect of this application for review are as follows:

* Whether the proposed development is respectful of the neighbourhood character of the area;

* Whether the proposal constitutes an overdevelopment of the site in terms of the number of dwellings and the bulk of building;

* Amenity issues in relation to noise and overlooking; and

* The adequacy of private open space and car parking.

15. The Council submission clearly stated the priority given in both the State and Local Planning Policy Frameworks to ensure that development of medium density housing in existing residential areas is respectful of neighbourhood character, while meeting the other State policy objectives of improved housing choice, use of existing infrastructure and improved energy efficiency. At the local level, the most relevant expression of these priorities is found at Clause 21.11, Housing and Communities, of the Municipal Strategic Statement, where the range of housing strategies include:

* Promote the importance of facilitating a range of housing styles and densities in appropriate locations.

* Support medium density housing development, which is of an appropriate scale and density, and is responsive to urban character objectives.

* Implement the recommendations of the Urban Character Study.

In relation to urban character, Clause 21.12 of the MSS states:

The style of buildings, width of roads and types of open spaces are all integral parts of Darebin's character and image. It is important for Council to identify elements and features unique to Darebin and reinforce its identity. Physical, environmental and social features such as architectural styles, topography and diverse ethnicity, set Darebin apart from other municipalities. The perception and character of an area can also influence the quality of life for local residents and the business community.

The following objectives are relevant to the consideration of this matter:

* To ensure that new and infill development is responsive to the site and locality.

* To manage change which has regard to the existing urban character.

16. The subject site is located within Precinct B3 of the Darebin Urban Character Study in which the valued character is the mixture of Victorian, Edwardian and Interwar building styles in predominantly inner urban settings. Of the five matters identified as threats to the valued character of the area, only construction of new dwellings and extensions in an inappropriate scale or style could be regarded as a matter at issue in this appeal.

17. The proposed development site is situated at the junction of Rathmines, Wingrove and Clarke Streets and is bounded by the Hurstbridge railway line on the south side. The land is zoned Residential 1 and abuts similarly zoned land on the west side and across Clarke Street to the north, a Business 1 Zone on the east side associated with the Wingrove and Station Streets shopping area, and the Public Use 4 Zone of the railway reserve. The site is unusual in terms of the diversity and proximity of the surrounding land uses. It is a location that is subject to the noise and activity of the railway operation, car park and the commercial area, while also being the focus of resident's expectations that any development should retain reasonable levels of amenity.

18. The change of use proposed will result in the removal of a factory, a prohibited use in the zone, which is built with a zero lot line along 10m of the western boundary, and removal of the Anglers Hall, a weatherboard building with a side setback to Clarke Street of 2.1m.

19. It was common ground between the parties that the adjoining residential areas in Clarke and Rathmines Streets correspond to the description of Precinct B3 in the Darebin Urban Character Statement, which is a reference document under the planning scheme. The statement of desired future character states:

The area's current valued character, typified by Victorian, Edwardian and Inter war in garden settings, is to be retained and enhanced. This means:

* Retaining Victorian, Edwardian and Inter war dwellings, particularly those in a consistent streetscape of these styles.

* Designing new dwellings and second storey extensions in a style and scale sympathetic with existing dwellings of the Victorian, Edwardian and Inter war style/era.

* Keeping front gardens free of carports, garages and other structures.

20. In declining to issue a permit, Council sought to rely on what was described as the proposal's lack of reference to those character elements. In contrast, the applicant relied upon Mr McGurn's evidence and the fact that there was no uniform defining character that would push the style of the design in a particular direction. Mr McGurn observed that two storey dwellings are present in the precinct and there is no reason why a two-storey development cannot be constructed on the site. He noted that the proposal responds to the scale and separation of the nearby dwellings through appropriate setbacks to Clarke and Rathmines Streets, with the upper floor set back 7.0 metres from Clarke Street, compared to the 5.9 metres at 432 Clarke Street. In addition, Mr McGurn regarded the building as having a high level of articulation on the northern elevation facing Clarke Street and responsive to the neighbourhood in its use of colorbond steel roofing, rendering with horizontal references to weatherboards and other materials represented in the area.

21. My examination of the plans and photomontages provide by the applicant indicates a modern two-story development that will sit comfortably in the setting. I agree with Mr McGurn that the site does mark a transition between the commercial and transport focus of Wingrove and Station Streets and the residential environment of Clarke and Rathmines Streets. I am unable to agree with the proposition advanced by Council and the resident objectors that the proposal is out of scale with the nearby commercial and residential buildings. The site is not mid-block in a consistent group of Victorian, Edwardian or Inter-War housing, nor does it result in the loss of any such dwellings. The character statement contemplates new dwellings and extensions with second stories. Front gardens are free of carports, garages and other structures, and front fences are for the most part low. Rather than being contrary to neighbourhood character, I am of the view that the development will result in a very positive addition to the streetscape and residential amenity of the locality.

22. Resident objectors raised concerns in relation to the number of dwellings on the site, the bulk and density of the proposal and the consequent activity, noise, traffic and amenity impacts, likely to be generated by the extra families living in the area. The proposed uses were contrasted with the existing non-conforming and Section 2 uses of the workshop/plumbers depot and the Anglers Hall that has been used one night a week on Tuesdays, which they regarded as relatively benign.

23. Although the density of 1:93 sq.m is high in comparison to that likely to be found in a conventional dual occupancy application, it is not out of keeping with a multi-dwelling development in a closely settled urban area adjacent to transport and commercial facilities.

24. The basement car park will have the effect of elevating the building and thereby increase its bulk. However, the maximum height of 7.9 metres on the south side adjacent to the railway line, diminishes to 6.7 metres on the on the north side of the upper floor roof. I agree with the evidence of Mr McGurn that the apparent bulk of the building will be moderated by the articulated façades and setbacks associated with the separate dwellings and the use of lighter toned finishes to the upper floor. In relation to concerns that the building would cut off views down Clarke Street from Wingrove Street; I note that the view line is substantially offset and obstructed by the existing buildings on site. The proposed development will close the view in a similar way, but with an attractive, distinctly residential building that will signal in a positive manner the start of the residential precinct.

25. Residents raised further concerns in relation to the internal amenity of the dwellings for future residents due to the lack of storage capacity within the units and the fact that three of the units will have only limited access to direct sunlight and limited ability to dry laundry. It is clear that the private open space of Dwellings 4 and 7 will be subject to some overshadowing from Dwellings 3 and 5 respectively and that the units on the first floor will be substantially reliant on clothes dryers, due to the constraints on the use of balconies for this purpose.

26. I am satisfied that the orientation of the site and the setback of the structure is such that when coupled with the conditions relating to the screening of west facing windows of Dwellings 6 and 7, the proposal will not generate unreasonable off site amenity impacts for adjoining residents or those in the neighbourhood.

27. Each of the private open spaces of the ground floor units range in size from 36.8 to 62.5 sq.m, with some exposure to the northerly aspect and direct access from living areas. The opportunity for direct sunlight will obviously be greater in the mornings for Dwelling 1 on the eastern side and in the afternoon for Dwellings 2, 3 and 4 on the west elevation. The balconies for Dwellings 5 and 6 on the upper floor, with areas of 29.1 and 25.6 sq.m, have a direct northerly aspect, as have the living areas beyond. As already noted, the balcony of Dwelling 7 is smaller, with an area of 16.8 sq.m and an easterly orientation. With the exception of Dwelling 3, each of the ground floor dwellings has private open space in excess of the Good Design Guide benchmark of 40 sq.m. I consider the proposal makes a satisfactory allowance for private open space.

28. It is proposed to provide 9 car parking spaces on site compared to the 12 required according to the Guide. I agree with Mr McGurn and Council's Traffic Engineers that the provision of a space for each dwelling and two visitor spaces on site is considered sufficient, given the site's proximity to the railway station. It is also relevant to note that the times when the demand for visitor parking are likely to be greatest coincide with evenings and weekends when the station parking facilities are least used.

29. The separation of vehicular and pedestrian access by using the Rathmines Street frontage for vehicle access to the basement car park and Clarke Street for pedestrian access to the building, should facilitate movement around the site and improve the safety of pedestrians in the residential neighbourhood.

30. I have therefore concluded that the Council's grounds of refusal cannot be sustained. The proposal is consistent with the provisions of the planning scheme and will not be out of keeping with the neighbourhood character of the area. I have found the proposed density of the development appropriate to the transitional nature of the site and its proximity to excellent public transport and shopping facilities. As a consequence, the traffic and parking demand is unlikely to be excessive. In coming to this decision I have also relied upon the evidence of Mr McGurn and the assessment of the proposal contained in the Council Officer's report.

31. Accordingly the Tribunal will direct that a permit issue.

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