Victorian Civil and Administrative Tribunal|2002-01-07|Before: Tribunal Member P

Studio 35 Architecture v Port Phillip CC [2002] VCAT 218 (7 January 2002)

PLANNING AND ENVIRONMENT LIST APPLICATION NO. 2001/P50362

RESPONSIBLE AUTHORITY: Port Phillip City Council

1. The Responsible Authority's decision is set aside.

2. The Responsible Authority must issue a permit for development of 18 dwellings in accordance with plans by Studio 35 - Drawings 0051 - TP3, TP4, TP5, TP6 and TP7 as signed by Tribunal Member P.G. O'Leary in Application for Review 2001/P50362.

1. Prior to the commencement of the development hereby permitted, a landscape plan and schedule shall be submitted to and approved by the Responsible Authority (including retention/protection of trees abutting 119 Tennyson Street). Once approved, the landscape plan shall be endorsed and form part of this permit. Landscaping in accordance with such approved plan and schedule shall be completed before the commencement of the occupation of the building hereby permitted.

2. The landscape plan must include the retention of the Manna Gum located on the property. In the event that the Manna Gum is so damaged or dies, it shall be replaced by a similar specie to the satisfaction of the Responsible Authority.

3. Prior to commencement of works on the site, a tree protection plan for the protection of the Mama Gum must be prepared by a qualified and experienced arborist and submitted to Council for approval. Once approved, the tree protection plan will be endorsed and form part of this permit.

4. The construction of the works must be carried out in accordance with the tree protection plan and, where the tree protection plan calls for it to be done, must be carried out under the supervision of an arborist.

5. The development shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

6. The overall height of the development is not to be and must not be increased by reason of the application of any or all of the conditions imposed by Melbourne Water.

7. Once the development and use has started it must be continued and completed to the satisfaction of the Responsible Authority.

8. The garden areas shown on the endorsed plan and schedule shall only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

9. No equipment (including, but not limited to, ducting and piping, kitchen exhaust fans, air conditioning and heating units and satellite dishes), services and architectural features other than those shown on the endorsed plan shall be permitted unless otherwise agreed to in writing by the Responsible Authority.

10. The walls on or facing the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

11. All piping and ducting (excluding downpipes) shall be concealed to the satisfaction of the Responsible Authority.

12. Each dwelling must be provided with a minimum of one car parking space.

13. Intercom access must be available at the ground level car entrance to the satisfaction of the Responsible Authority. The intercom system must be clearly signed and the speaker angled away from the street to the satisfaction of the Responsible Authority.

14. Vehicular crossings shall be constructed in accordance with the endorsed plan(s), at the cost of the applicant/owner to the satisfaction of the Responsible Authority, before the use is commenced or building occupied. In particular:

a) Standard vehicular crossings shall be constructed at right angles to the road to suit the proposed driveways using bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate);

b) Any existing crossing shall be removed and replaced with bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate);

c) Any proposed vehicular crossing shall have satisfactory clearance of any side-entry pit, power or telecommunications pole, manhole cover or marker or street tree. Any relocation, alteration or replacement required shall be in accordance with the requirements of the relevant Authority and shall be at the applicant's expense.

15. The Applicant/Owner shall do the following things to the satisfaction of the Responsible Authority:

a) Pay the costs of all alteration/reinstatement of Council and Public Authority assets necessary and required by such Authorities for development (including any necessary line marking of parking spaces, and/or erection of parking signs etc.).

b) Obtain the prior written approval of the Council or other relevant Authority for such alteration/reinstatement.

c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of reinstatement.

16. Before the use starts, areas set aside for parked vehicles and access lines 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 sealcoat to the satisfaction of the Responsible Authority.

d) Drained and maintained to the satisfaction of the Responsible Authority.

e) Line marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

17. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

18. This permit will expire if one of the following circumstances applies:

a) The development is not started within 2 years of the date of this permit.

b) The development is not completed within 2years of the date of commencement of buildings and works..

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.

19. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

20. Finished floor levels of the dwellings must be constructed a minimum of 300mm above the applicable flood level.

21. The entry/exit driveway of the basement carpark must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level.

22. The drainage system is to be constructed so that external flooding is unable to penetrate the basement area.

23. All vents, stair cases, lift void etc. are to be flood proofed to a minimum of 300mm above the applicable flood level to ensure no flood water inlets to floor levels below the applicable flood level.

1. On 14 November 2001 the Tribunal issued a Preliminary Decision and provided reasons. It gave the applicant an opportunity to provide revised plans and elevations of the development to address concerns raised about building bulk and siting issues. The Tribunal considered that the revised plans should encompass the following changes (but it acknowledged that there may be some consequential changes arising out of the design). The changes suggested were:

* The retention of the existing Manna Gum at the rear of the site.

* Separation of all substantial buildings including the basement from the canopy of the tree. This separation shall be defined by an imaginary line drawn between the southern boundary of the property at 123 Tennyson Street and the southern property boundary of 6 Daley Street (this line is generally north of the canopy of the tree).

* Deletion of part of the basement containing car spaces 13 - 25 (inclusive).

* Modification to Dwellings A6, A14, A16 (such modification may involve reconfiguration of these dwellings).

* Revised rear elevation treatment (which may include reorientating rear dwellings).

* Shifting Dwellings A20 and A22 northwards by about 1 metre.

* Deletion of part of the deck in front of the dining room to Dwelling A19.

* Deletion of reference to communal open space on the top deck and reallocation to dwellings on that level (this can include a reduction in size to take account of the movement to Dwellings A20 - A22).

2. Correspondence dated 4 December 2001 from SJB Planning explained the proposed changes and circulated plans to all parties and the Tribunal. The correspondence from SJB Planning also included an "Architectural Statement" from the Project Architect, Warren McVean. In addition, SJB Planning at page 2 identified a number of consequential changes to the plans and commentary which stated:

* The basement as been extended 400 mm closer to the street to provide an extra 3 car spaces than would otherwise be possible.

* The living area of Dwelling A4 (previously A6) has been re-oriented to enable the bathroom and kitchen of that dwelling to be located no closer than 6 metres from the trunk of the Manna Gum (one metre further than recommend by the Council's arborist in Paragraph 5.30 of the Council officer's report). Similarly, Dwelling All 3 (previously A1 6) has been re-configured for the same reason.

* A screened mechanical plant platform has been show adjacent to Dwelling A18.

* Screening has been shown to windows within 9 metres of private open space areas as suggested by the Tribunal in Paragraph 25 of the interim decision.

It is noted that a car parking ratio of 1.6 spaces per dwelling has been achieved. This satisfies the Tribunal's expectation (as stated in Paragraph 34).

With respect to conditions, the permit applicant would like to ensure that these reflect the Tribunal's intention (stated in Paragraph 30) that if the Manna Gum does show signs of stress in the future, the tree should be permitted to be lopped or replaced with the consent of the responsible authority.

3. The Tribunal received a brief submission from Mr. Rantino on behalf of the Responsible Authority concerning permit conditions, particularly relating to the retention of the Manna Gum. The Tribunal has accommodated these suggestions in its Order.

4. The Tribunal also notes a submission from Mr. Klotz about the suggested conditions on permit provided by the Responsible Authority at the conclusion of the review hearing. The Tribunal considers that most of Mr. Klotz's suggested changes are now superfluous given the requirement to reduce the size of the building and retain the existing Manna Gum tree. Some conditions which referred to the desire for the Responsible Authority to consult with the owner of No. 127 Tennyson Street have not been accepted as they seem onerous. The Tribunal is satisfied that the Responsible Authority has the ability to address landscaping details on materials and finishes as its normal role as Responsible Authority.

5. The Tribunal also notes the comments from Ms. Bauers about conditions to address overlooking and protection of trees. Overlooking was addressed in the Preliminary Order whilst Condition 1 addresses protection of trees.

6. The Tribunal is satisfied that the revised plans adequately address the matters raised in the Tribunal's Preliminary Decision, and in particular the matters contained within paragraph 5 of that Decision. It acknowledges that part of the building, and more particularly, a section of the dwellings (Nos. a3 and a4) protrude into the "imaginary" line described in the second dot point of paragraph 5 of the Preliminary Decision, but it is satisfied that the applicant has made a reasonable attempt to protect the existing Manna Gum. The Tribunal has included the additional suggested conditions provided by the Responsible Authority and in particular the need for a tree protection plan.

7. The Tribunal has also adjusted the suggested Condition 2 supplied by the Responsible Authority and added a further sentence which provides for any contingencies in the event that the Manna Gum is damaged (such as by a storm) or dies.

8. The Tribunal has also examined the rear elevation of the new development and considers it to be satisfactory. It considers this treatment will be complemented by landscaping. This should be addressed by way of Condition 1 on the permit.

9. The Tribunal is satisfied with the revised plans and consider they satisfactorily address the primary concerns raised by the Responsible Authority. They result in a reduction in visual mass and bulk, particularly to the rear of the site and reduce the visual impact on adjoining and nearby properties. It is satisfied that the building bulk and amenity issues have now been adequately addressed, and it also allows for the retention of the Manna Gum. Accordingly a permit shall issue in accordance with the nominated conditions.

Studio 35 Architecture v Port Phillip CC [2002] VCAT 218

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Studio 35 Architecture v Port Phillip CC [2002] VCAT 218 (7 January 2002)

Parties