The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472

The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472 - VCAT 2009 case summary — Zoe

[6]

Application Nos. D/63/2008 was lodged with Darebin City Council in February 2008 for the purposes of developing in No. 70 Oakover Road, Preston for fifty one (51) dwellings comprising 30 double storey townhouses and 21 apartments which are to be within a three storey building.
Council described some of the attributes of the proposal in the following terms:
- The townhouse dwellings are orientated to the street frontages with 5 attached pairs (10 dwellings) fronting Oakover Road, 7 attached pairs (14 dwellings) fronting Erin Street and 3 attached pairs (6 dwellings) fronting Austral Avenue.
- The townhouse dwellings will typically comprise ground level entry, open plan family/meals/kitchen area, bathroom, and laundry areas with three first floor bedrooms and bathroom.
- All townhouse dwellings will have a double garage at the rear and accessed via a central roadway off Austral Avenue.
- All townhouse dwellings will have private open space of at least 40sqm in a rear yard.
- Maximum height of the new townhouse dwellings is 7.8m.
- The apartment building is to front Austral Avenue which is a street that displays some industrial characteristics on its eastern side.
- The apartment dwellings will typically comprise of an entry, open plan family/meals/kitchen area, bathroom, and laundry areas with 2 bedrooms and bathroom. A variety of internal layouts are proposed.
- All apartment dwellings will have a single car space within a common ground level garage which is also accessed via the central roadway off Austral Avenue.
- A total of thirteen visitor spaces are proposed within the apartment garage.
- An additional six on-street spaces will be made available by reinstating existing crossovers to the kerb and channel.
- All apartment dwellings will have private open space of at least 8sqm in the form of a balcony.
- Maximum height of the new apartment dwellings is 10m.
Overall, the front setback of the development will be a minimum 5m to Oakover Road, 7.5m to Erin Street and 4m to Austral Avenue. These setbacks are all increased at the upper levels.
The new dwellings will have a mix of traditional and contemporary design finished with face brick, render, timber and glazing with a mixture of pitched tiled, angled and flat roof forms.
A 2000mm high brick and timber front fence is proposed in front of the apartment building. Otherwise no front fencing is proposed.

[13]

Throughout the course of the hearing it became apparent that there was a degree of 'in principle' support for the development including from the objectors. Mr Kern acknowledged that the objectors felt that the outcome of fifty one dwellings was a "reasonable compromise" given the size and the new zoning of the land. The objectors support an outcome which is of a 'medium density' scale rather than a 'high density' development.
Mr Kern's specific concerns with the design (some of which were shared by council) related more to "character" issues including:
- Upper level setbacks
- Roof pitch
- The use of balconies
- Height of the apartments
- Need for a landscape plan
- Need to take account of flooding
Before turning to these issues, I want to firstly commend Mr Kern, Dr McKenzie and other residents for their involvement in, and contribution to, the design outcome. At all times I felt that their objections and submissions were constructive and were based on a genuine desire to achieve a reasonable and balanced design outcome for this large redevelopment site in the midst of their neighbourhood.
I also want to acknowledge the degree to which the proposal has the support of the state and local policy directions in the planning scheme on urban consolidation. This is a large site within close proximity to all urban services and infrastructure and is ideally suited to some modest form of housing density increase. Its policy support has been entrenched by its recent rezoning which invites a residential future to replace its industrial past.
I also agree with council and the proponent that the proposal has many factors in its favour including:
- Its substantial size of nearly one hectare in an established urban area.
- Its (new) Residential 1 Zoning
- Its location in very close proximity to existing infrastructure and services including schools, public open space, public transport and activity centres at Miller Street and Preston Central (which is a Principal Activity Centre).
- Its proximity to main arterial roads (Bell Street and St Georges Road) which provides convenient vehicle access.
- The immediate neighbourhood context which displays a mix of residential properties with more robust industrial development to the east.
- Three street frontages.
- Interface to an established industrial area.
- No car parking or access at the front of any of the dwellings which promotes residential character and maximises pedestrian opportunities on all streets.
- All vehicular access from Austral Avenue which has the least sensitive immediate residential interface.
- A very recent and uncontested strategic decision to rezone the land.
I will now turn to the specific issues in dispute.

[30]

Council required the permit applicant to submit a 'Travel Plan' with the application inclusive of traffic details on the proposal; the existing transport context of the site; travel targets; actions to implement these targets; and a monitoring and reporting program.
The Travel Plan is intended to be endorsed as part of the planning permit (it is referred to in the preamble to the permit) and it is to be modified (according to condition 1(s) of the Notice of Decision) so that:
- The target for the apartment building to read 'By 2015 100% of residents of the apartment building will only own one (1) motor vehicle.'
- Each action nominated within the Plan must identify who has responsibility for the action and the cost associated with it.
- A number of the actions (such as, but not limited to, organising a Bicycle Users Group or a 'Bike Buddy' system) to be promoted to all residents within the complex not just those within the apartments.
Ms. Loddo, on behalf of the permit applicant submitted that she saw some practical problems with the Travel Plan and that it places an unreasonable burden on future owners and occupiers. She also felt that it would be difficult (if not impossible) to enforce the Travel Plan. Ms Loddo noted:
- It is envisaged that the town houses will be subdivided and sold off as separate lots with the only common property being associated with the access way. It is therefore considered that the requirements of the travel plan should not apply to the town houses but only the apartment building.
- The proposed development has a surplus of parking provided. There are 34 car spacers provided within the apartment complex for twenty one (21) two bedroom apartments. There is provision for four (4) visitor spaces which results in a surplus of 9 car spaces.
- The requirement to provide a travel plan when there isn't an overall shortfall of parking for the development is considered to be onerous.
I have assessed the submitted Travel Plan and note that the detail of the Plan contains targets such as:
- By 2015, 50% of residents of the apartment building will only own one vehicle.
- By 2015, 50% of trips by residents will be by sustainable modes.
- By 2015, 50% of visitor trips to the site will be by sustainable modes.
- By 2015, 50% of residents will use bicycles to visit High Street commercial centre.
I also note that the Action Plan includes such requirements as:
- Provide a bicycle or subsidy from the local bike shop to each new resident who would like one.
- Provide sufficient cycle parking to meet peak needs, which is easily accessible, light, attractive and secure.
- Provide cycle parking for visitors and sign it as such.
- Have a toolkit available to residents in the secure bicycle lock up area - this can consist of puncture repair equipment, a bike pump, spanners, allan keys etc.
- Provide an interest-free loan to buy an annual Metcard.
- Advertise where Metcards can be purchased from close to the site.
- Approach residents with a car and determine their regular trips. Advertise these trips to other residents (with permission) in order to facilitate carpooling.
There is finally a requirement for an annual report to be submitted to council on 1st May each year monitoring the travel habits of residents and reporting on:
- How the monitoring was conducted.
- The results of the monitoring activities.
- How the results compare to the targets.
- What actions have been implemented from the travel plan.
- What actions are yet to be implemented and when they will be implemented.
I have no problem in principle with the admirable objectives of Council in facilitating alternative means of transport in preference to forever using the motor car. I also have no problem in Council using all legal and promotional means at its disposal to get that message across by way of brochures, promotional events, subsidies and the like.
However I have great difficulty in connecting this standard Travel Plan with the permission sought in the application and I am bemused as to how it might possibly be enforced. The Travel Plan seems to fail every one of the accepted tests of the validity of a permit condition being:
- Relevance;
- Reasonableness;
- Certainty.
In a practical sense, I am not sure what is intended to happen if the targets are not met by the anniversary date. Will this somehow invalidate the development? I am also unclear whose obligation it is to provide the interest free Metcard loan or to provide the toolkit. The requirement for an annual report also seems particularly onerous.
I do not think that the Travel Plan can be enforced and I propose to delete any reference to it from the preamble of the permit. On that same basis, I will also delete condition 1(s). That said, I propose to substitute a new condition 1(s) which will, I hope, deliver some of the admirable ambitions of the plan by requiring the provision of bicycle parking for the apartments in accordance with Clause 52.39 of the Planning Scheme. There seems ample space available for bike parking in the visitor car parking area.

[35]

The heights of the fences in front of Apartments 1-4 reduced in height to a maximum of 1.8 metres above natural ground level and be modified to be of an open style at the base to the applicable flood level as specified by Melbourne Water. 2. The setbacks of Dwellings 24 and 25 from the northern boundary to be increased (or alternatively the wall heights decreased) to comply with Standard B17 of Clause 55.04-1 of the Darebin Planning Scheme. 3. The northern boundary fence of the site where it is along side Dwelling 24 (and the rear private open space/garage but not forward of the front building line) to be a minimum of 1.8 metres above natural ground level. 4. A notation indicating that the north-facing, upper floor Bedroom 2 windows for Dwellings 24 and 25 have fixed obscure glazing to a minimum height of 1.7 metres above the finished floor level. 5. West and east facing Bedroom 3 windows for Dwellings 25 and 24 to be screened by the provision of fixed obscure glazing to a minimum height of 1.7 metres above the finished floor level. 6. The volume of the external storage areas for the town houses increased to a minimum of 6.0 cubic metres. 7. Dividing fences between the townhouses to be of an open style in accordance with Melbourne Water's requirements and have a minimum height of 1.8 metres above ground level. If fences are forward of the front building line they must not exceed a height of 1.0 metres above ground level. Alternatively, divisions between pairs of town houses within the front setback need to be defined by low planting rather than fencing. Access in the form of gates are to be provided at the front building line so the rear of each dwelling can be accessed from the front yard. 8. The appearance of the walls separating the attached pairs minimised as much as possible by such treatments as reducing their size to the absolute minimum required and colouring them to blend with the wall they are adjacent to or any other appropriate treatment which would achieve the same result.

At a glance

Court

Decision date

Source

Judgment (64 paragraphs)

The First Stone Pty Ltd v Darebin CC [2009] VCAT 1472 (29 July 2009)

Parties

Legislation Cited (1)