Thistle Nominees Pty Ltd v Glen Eira CC [2014] VCAT 664

[4]

Leave is granted to substitute the plans that are the subject of the Application for Review for those prepared by CBG Architects Pty Ltd and dated 20 March 2014 (Revision C).
The decision of the Responsible Authority in relation to permit application no. GE/PP-25969/2013 is set aside.
A permit is granted in relation to land at 6 St Aubins Avenue, Caulfield North. The permit will allow the construction of two, two-storey buildings comprising 22 dwellings in accordance with the endorsed plans.
The permit is subject to the conditions contained in Appendix 1 to these reasons.

Thistle Nominees Pty Ltd v Glen Eira CC [2014] VCAT 664 | Case summary | Zoe

[17]

This appeal raises some fundamental planning questions, relating to the weight to be given to zone provisions and policies. The State Department responsible for planning[2] is in the midst of rolling out revised residential zones across Victoria. The Glen Eira Planning Scheme was the first in the State to have the new residential zones applied. One of the revised zones is the Neighbourhood Residential Zone, which unambiguously aims to protect residential neighbourhoods from the impacts of medium density development. It primarily seeks to do that by prohibiting, as a standard approach,[3] more than two dwellings on a lot.
Transitional provisions apply to this provision, meaning that applications which were lodged prior to the application of the zone, and which propose the construction of more than two dwellings, can still be considered on their merits. However while the provision prohibiting more than two dwellings will not apply to these applications, they still must be considered in the context of a zone which seeks to limit new housing opportunities, and which proposes that tool as its main instrument of achieving that purpose.
In this case Thistle Nominees Pty Ltd (the 'Applicant for Review') sought a planning permit from Glen Eira City Council for the construction of 27 dwellings on land at 6 St Aubins Avenue, Caulfield North. The Application was lodged one week prior to the gazettal of the Neighbourhood Residential Zone into the Glen Eira Planning Scheme. The plans at that stage depicted a development of two, three storey buildings.
On 31 December 2013 the Glen Eira City Council determined to refuse to grant a permit for the proposed development. In its grounds of refusal, it cited concerns relating to the inconsistency with policy for the Minimal Change Areas, the visual bulk of the development, and non-compliance with a range of Rescode standards and objectives. One of the objectives alleged to be offended is that relating to neighbourhood character. An Application for Review against the Council's decision has been lodged, hence this proceeding.
That Application for Review is sought to be contested by a large number of nearby residents. In addition to the concerns raised by Council, they raise concerns about traffic and car parking, and about the impact of the proposal on a large number of trees that currently exist on the review site.
In response to these concerns, plans circulated by the Applicant for Review prior to the hearing have reduced the number of proposed dwellings to 22, contained in two, two storey buildings. The amended plans have also modified the setbacks to some of the boundaries of the review site.
The key issues or questions for determination are:

[27]

There are many reasons for this policy position. It enables the more efficient use of existing infrastructure, and thus reduces the huge costs to the State of providing new infrastructure in growth areas. It enables a higher proportion of the population of Melbourne to live in established suburbs where a higher level of access to existing services and facilities can be enjoyed, thus providing for a better standard of living for a wider section of the community. It allows housing forms to be established which are more suitable to households other than large families, which is what most detached housing in suburban locations cater for. As such, older households have an opportunity to downsize while staying within their own local community. It can also provide for more affordable housing options, although that is an unlikely outcome in this case. In short there are a number of positive outcomes for the broader community, when additional housing is provided in an appropriate manner in established suburbs. Hence the achievement of urban consolidation in existing suburbs is a key policy theme at both a State and local level.
Mr O'Leary for the Council submitted that the review site was poorly located in relation to services and facilities, and as such is not an appropriate location in which to provide for urban consolidation. We recognise that the site may not enjoy the level of access to services and facilities enjoyed by other locations in this municipality, including those within walking distance of an activity centre. However the site is within 450 metres walking distance of the tram route along Balaclava Road, and is within walking distance to a range of schools. Further the tram route along Balaclava Road puts the site within minutes of a number of activity centres and recreational opportunities.
While this may be a level of access to services and facilities that rates poorly on a Glen Eira municipal level, as Mr Bisset pointed out to us, it is a level of access to services and facilities that people would salivate at if it could be provided in the growth areas of Melbourne. Such things are relative. On the basis of a tram stop being located within 450 metres of the site, we find that a high level of access is provided to a wide range of services and facilities from the review site.
State policy also seeks to achieve outcomes that respect neighbourhood character. We will explore this issue further in the context of the guidance on character outcomes provided in the Local Planning Policy Framework (LPPF) of the Glen Eira Planning Scheme.
The LPPF adopts a targeted approach to the preferred location for new housing within the municipality. A series of Housing Diversity Areas are identified which are intended to provide for a range of development opportunities. These are centred on a series of activity centres within the hierarchy, as well as main roads that contain tram routes. Policy clearly creates the expectation that:

[38]

We do not agree with Mr O'Leary that the first purpose quoted above is inconsistent in any way with the proposal that is before us. That is because the proposal is for two, two storey buildings, of relatively low height above natural ground level, owing in part to the way that the buildings are stepped into the slope of the land. Indeed we consider that these buildings will be lower in height than many of the surrounding two storey dwellings and apartment buildings, particularly those fronting St Aubins Avenue. We also note that the wall height of the proposed southern building will be about one metre lower than the comparable height of the first floor component of the existing dwelling on the review site. Further, these two buildings are proposed to be inserted into a neighbourhood where double storey dwellings dominate, and where such dwellings are often of a relatively tall construction, sitting proud above the surrounding landscape. We therefore consider that this two storey development will be consistent with the first purpose of the zone noted above.
The second purpose is not so straight forward. If it were not for the fact that this site is a large site supported by specific local policy, we would have had some difficultly finding that any development of more than two dwellings were consistent with the zone purpose, despite the applicability of the transitional provisions. Ultimately we would have found ourselves in a similar position to the Tribunal in the decision of Steward v Glen Eira CC [2014] VCAT 441 where the purpose of the zone weighed heavily on the Tribunal's decision to refuse to grant a permit for a development of nine apartments within the Neighbourhood Residential Zone.
However in this case there remains, even post the application of the Neighbourhood Residential Zone, strong and clear local policy support for the development of large sites such as the review site with medium density development. That is the policy statement that we have quoted following paragraph 16 above. While this policy intent has always applied to the Minimal Change Areas, we note that this policy statement was amended as part of the application of the new residential zones into the Glen Eira Planning Scheme.[10] That amendment provided for the potential to rezone large sites with the Minimal Change Areas, so that they could continue to provide opportunities for medium density housing, despite the provisions of the Neighbourhood Residential Zone. We consider such an amendment to affirm for us the continued role expected in policy for large sites such as the review site, despite the applications of the new residential zones to the Glen Eira Planning Scheme.
In this case, by chance the review site does not need a rezoning, in order to fulfil the specific policy expectation for this large site. That is because of the transitional provisions that apply under the Neighbourhood Residential Zone. We do not consider those transitional provisions should be ignored, in favour of a rezoning that policy indicates as a way forward. The transitional provisions instead are a short term measure to allow a more streamlined opportunity to fulfil policy, for those applicants with advanced proposals at the time of the introduction of the new residential zones.
The review site, at 3934 square metres in size, is almost double the 'qualification size' of a large site set out in policy. It is also within walking distance of fixed rail, and a number of schools. It is therefore, in our view, more than capable of providing the limited opportunity for medium density housing foreshadowed in the purpose to the Neighbourhood Residential Zone, and encouraged in both State and local policy. This opportunity is limited as very few sites will be large enough to draw the policy support we have identified. Further future sites that are more than 2000 square metres in size will now need to undergo a rezoning process, or at least have a different Schedule to the Neighbourhood Residential Zone applied, in order to achieve the ability to seek a permit for medium density housing of more than two dwellings. This cumbersome process will further limit opportunities for new housing within this Zone.
For these reasons we find that the concept of developing the review site with an apartment style of housing is entirely consistent with the policy intent established in the Glen Eira Planning Scheme, and the purposes of the Neighbourhood Residential Zone.

[45]

We agree with the position adopted by Council, that the proposed northern building is well designed and articulated, with appropriate front setbacks, that will allow it to integrate well with the range of large houses and small apartment buildings found along this part of St Aubins Avenue. There was criticism expressed by some parties about the location of areas of secluded private open space in the front setback. To the extent that raises concerns regarding a streetscape impact, we consider that the fencing of front yards is a fairly consistent streetscape response in the immediate neighbourhood, and particularly in this part of St Aubins Avenue. We also consider that the open metal fence with brick piers will allow a good balance to be achieved, between allowing some streetscape views of the vegetated frontage of the site, while also providing an appropriate level of privacy for the two apartments that face north to St Aubins Avenue. For these reasons we find that the proposed northern building is an appropriate response to the character of this neighbourhood.
The parties that oppose to grant a permit are right in identifying that the southern building will be larger in its proportions than other buildings in this neighbourhood. Our attention was taken to the policy statements for building bulk and scale in the Minimal Change Areas at Clause 22.08-3.3 of the Glen Eira Planning Scheme. They are:
- Ensure that the scale and bulk of buildings respects the prevailing mass and scale of adjacent properties and wider neighbourhood.
- Ensure that overall building bulk is minimised by providing articulation, selecting appropriate roof forms, pitches and building materials.
- Ensure that elevations are well articulated and graduated to avoid "box like" multistorey designs and associated visual bulk.
- Ensure that buildings have adequate horizontal articulation where this is the prevailing character of the street.
- Ensure that where dwellings are attached across a site and each dwelling has its own street frontage, the cumulative bulk of the development is considered.
We acknowledge that the proposed southern building, with its side elevations in excess of 40 metres in width, will be larger than the surrounding residences. That of itself does not mean that an inappropriate character outcome will prevail. Instead we need to assess how this building has been treated, in order to ascertain whether an inappropriate outcome from a neighbourhood character perspective will result, having regard to the guidance provided in policy. This is different from the visual bulk analysis which we will undertake later in this decision, in relation to the available views from individual properties.
In this case the design of the building has taken a number of steps to reduce its presence in this neighbourhood, and thus assist it to integrate with the surrounding built forms. Those steps include the following:

[48]

The eroding of the built form at each corner. 2. The partial setback of the first floor from the ground floor below. For example, the first floor is setback a minimum of 9.0 metres from the east and west boundaries and 6.1 metres from the southern boundary. 3. The provision of a clear and deep central recess into each of the eastern, western and southern elevations, measuring at least four metres wide. 4. The use of a variety of materials, including a substantial glazed element to each of the central elements. 5. The ability to establish a substantial landscaped setting around the entire perimeter of the site, in a manner which will provide filtered views of the proposed building.
As a result of these design measures, we find that the proposed southern building will not be viewed as a foreign element in this neighbourhood. Views from rear yards to large two storey dwellings (or apartment buildings) is a reasonable expectation and a common occurrence, where many dwellings in this neighbourhood stand proud above the surrounding land form. The properties with a rear or side abuttal to the rear of the review site will have some views to the proposed southern building, which is not an unreasonable outcome. Having regard to our analysis above, those views will be filtered by vegetation to a building that is large, but that is also well articulated, setback from boundaries, with a slightly recessive first floor, and which is set below the natural ground level when viewed from the most sensitive interfaces.
Mr O'Leary for the Council also contested the suggested site coverage of 51%, demonstrating that this figure can only be arrived at when discounting the part of the review site that will appear as ground level open space above a basement. We agree with Mr O'Leary's calculations, that the site coverage figure would be higher, around 54%, if the area covered by the basement were considered. We don't however consider this to be indicative of a development that is in contrast to the character of the surrounding neighbourhood. Despite what the implications might be of the relevant definitions, the concept of site coverage is as a measure of the ratio of built form compared to open space, visible on a site. Where open space sits above a basement, it can still appear as an area contributing to breaks between buildings, or around buildings, and therefore not part of the coverage of the site by buildings. In this case we are satisfied that there is a reasonable balance achieved between built forms and open space, as evidenced by the generous setbacks to the side and rear boundaries, and the 6 metre break between the north and south buildings. These setbacks are in part indicative of the greater design flexibility offered by a large site. We find that the resultant site coverage, while being marginally above the 50% expected in Minimal Change Areas, to produce an outcome that is respectful of the surrounding neighbourhood character.
Having regard to these measures, and the overall design outcome, we are satisfied that the end result is a building that achieves the policy objectives we have identified above, and which will integrate with the character of this neighbourhood.

[50]

The review site contains a number of trees that are in various levels of health and thus worthiness of retention. Prior to the hearing we received two pieces of arboricultural evidence. The first from Mr Howe supports the proposed tree removal, and the setbacks of the proposed works to the trees that are to be retained. The second from Mr Galbraith contains an opinion that additional trees should be retained, and raised doubt as to whether trees that were proposed to be retained will be adequately protected during construction.
Mr Galbraith's evidence was circulated by a group of Respondents who ultimately reached an agreed position with the Applicant for Review in relation to landscape matters. They therefore declined to call Mr Galbraith to orally present his statement of evidence and be subject to cross examination. Nonetheless the matters raised in the evidence statement are relevant matters to which we must turn our attention.
Overall we are satisfied that the proposed development retains an appropriate level of existing vegetation on the review site. The land is not affected by any overlays that seek to protect existing vegetation, and exists in a neighbourhood where vegetation exists at the front and rear of sites, but aside from the street trees is not a defining characteristic. The development includes a basement, which we consider to be a positive element as it means that all hard surfaces associated with car parking is contained underground. This assists to increase the availability of landscaping areas throughout the site, and ultimately the number of trees that the site will contain in the future.
From a design perspective, it is desirable that the basement access ramp be provided near to one side boundary. Regardless of which side boundary is chosen on the review site, it will result in the removal of a tree that is rated as highly worthy of retention. In this case the Applicant for Review has chosen to place the basement access ramp along the western boundary, which has seen the retention of a Magenta Cherry along the eastern boundary, but will necessitate the removal of a Jacaranda along the western boundary. In our view, while the retention of the Jacaranda may have been ideal, an appropriate balance has been achieved between the often competing desires or demands in developing a site such as this. We also note that the proposed development will provide for the retention of five other trees on site, which we consider is indicative of a design which has had due regard to the placement of existing trees in the overall design.
Mr Galbraith raised concerns about the ability to retain two trees, being the aforementioned Magenta Cherry, and a Brush Box located in the front yard. His concerns were that the basement may involve excavations closer to these trees than the outline of the basement, depending on the construction method employed. Mr Howe's opinion is that a construction method using driven piles will be used, which will require no excavation closer to the trees in question than the basement outline depicted in the plans. He also opined that the trees will have a sufficient amount of their tree protection zones retained and protected, with the basement design that has been employed. Given Mr Howe's evidence was subject to cross examination, we must give it greater weight. On that basis we are satisfied that the trees intended to be retained will be appropriately protected from the construction on site.
For these reasons we are satisfied in relation to the arboricultural outcomes to be achieved on site.

[52]

There are twelve properties abutting the subject site, a reflection of the 'L' shape of the land and the unusually large site area. A number of surrounding property owners object to the proposed development, with the predominant issues being building bulk, overlooking and the landscape treatment. The amended plans reduce the height of the proposed development from three to two storeys, which has ameliorated some concern in relation to building height.
While we address these matters in relation to each of the submissions from adjoining residents, we consider it pertinent to recognise that the adoption of an apartment style form with a basement car parking area provides the ability to respond to surrounding development in a more sympathetic manner than might occur if the site were to be developed with town houses on individual lots. For example, apartment configuration provides the ability to obtain building setbacks from all boundaries, creating perimeter spaces that achieve greater separation between the apartments and surrounding properties.
We see advantages in an apartment style configuration that removes cars from sight, avoids the need to construct buildings to the boundaries and allows for landscape continuity adjacent to surrounding properties.
The following sections address submissions and the issues raised by adjoining residents, starting with 8 St Aubins Avenue to the north, then clockwise around the perimeter of the subject land.
However, before considering issues concerning individual dwellings, we can clarify our finding concerning an issue that applies to all of the proposed apartments; the design of the planter boxes for all of the upper level balconies in the proposed development. This applies primarily to the internal amenity of the ground floor private open space areas, but is also relevant to the potential for off-site overlooking.
The amended plans show planter boxes with an external masonry balustrade to a height of 1330mm, with the space for soil contained by an internal masonry balustrade to a height of 1100mm. The total horizontal depth being 850mm. The section diagram of this feature illustrates that this balcony design will restrict a downward view to the extent that the line of vision to a person standing at ground level will be at eye level at a horizontal distance of 9 metres.
We consider the ability to view a person in secluded private open space at ground level from a balcony above should be further reduced by increasing the height of the outer balustrade to 1500mm. In cross examination, Ms Frank-Mas expressed the view that an increase in the external height of the balustrade of the order proposed will not adversely affect the landscape function of these balcony planter boxes. We therefore include this design change in the permit conditions.

[53]

8 St Aubins Avenue contains four apartments in a double storey building. The owner of Apartment 2, located at the rear of the ground floor, is concerned at the proximity of the proposed development and the prospect of visual bulk when viewed from the objector's secluded private open space and habitable room windows. The proposed development will establish a minimum separation distance of 5.85 metres between a west facing habitable window of the lower rear apartment and the eastern wall of the proposed northern building (Dwelling 3 below and Dwelling 14 above). The double storey eastern wall of the proposed building is sheer, causing the building as a whole to increase the shadow over the private open space of the adjoining apartment from approximately 2 pm at the equinox.
In response to this concern, Mr Negri has recommended that the design be amended to increase the upper level boundary setback from 3 to 4.8 metres. This will result in an increase in the horizontal separation distance between the habitable room window in Apartment 2/8 St Aubins Avenue and proposed Apartment 14 on the subject land to 7.65 metres. Mr Negri confirmed that as a result of this change, the extent of overshadowing to Apartment 2 at 3 pm at the equinox will be no more than the existing shadow cast by the common boundary fence.
While during the hearing we were shown one schematic plan of how this increased setback was to be achieved, that plan was withdrawn by the Applicant after other problems were identified. That experience shows that such changes cannot be made in haste. We are satisfied, having regard to the evidence of Mr Negri, that the increased setback he recommends will achieve an appropriate shadow impact on the adjoining property at 2/8 St Aubins Avenue. We will require this change by way of permit conditions, and are satisfied that Council can adequately review the plans that depict the required change, to ensure that no other unreasonable impacts are caused.
Subject to this change we are satisfied that the proposed development will not cause unreasonable levels of visual bulk to the adjoining apartments at 8 St Aubins Avenue. We note that these apartments have a close relationship to the review site, and that any reasonable development will likely have an amenity impact, including by way of visual bulk. The design that is before us, inclusive of Mr Negri's suggested increased setback to the upper level, presents a conservative approach to this interface, with setbacks that exceed that provided by the similarly sized built form at 8 St Aubins Avenue. We understand that the proposed development will be visible, but consider that the heights and setbacks involved mean that the level of visibility will not be dominating or unreasonable for this middle to inner suburban location.
Within the review site adjacent to the rear of 2/8 St Aubins Avenue is a disused tennis court surrounded by a typical cyclone wire fence, the northern side of which is on the common boundary, 1.9 metres from the rear wall of Apartment 2/8. There are two habitable room windows facing south towards the tennis court.
The northern façade of the proposed southern apartment building has a stepped interface with No. 8, with setbacks of 3 and 4 metres progressively increasing from east to west. The eastern side of the southern building is set back 9 metres from the eastern side boundary. The two south facing habitable room windows in Apartment 2/8 St Aubins Avenue are opposite the eastern corner of the proposed southern building, such that one window has a separation distance of 5.9 metres and the second window is opposite the private open space area for proposed Apartment 15. The northern façade contains north facing ground floor windows and an upper level window (Bedroom 2 in Apartment 15) that affords a diagonal view towards Apartment 2/8 on the adjoining site. We agree with Mr Negri's suggestion that this window be screened to restrict the opportunity for overlooking.
The owner of Apartment 2/8 prefers that the existing fences are retained, including the tennis court fence. We consider this to be an unreasonable expectation. The review site is to be redeveloped with a residential development, one where a certain level of privacy will be expected, particularly for apartments at ground level. It is simply not practical to expect such apartments to be separated from adjoining properties by a former tennis court fence, through which views can be easily gained. It is therefore reasonable, in our view, to expect this tennis court fence to be replaced in its entirety with more suitable boundary fencing.
This boundary fencing is to be accompanied by a thorough landscaping regime. During our inspection we observed considerable screen vegetation in the form of trees and shrubs along the eastern boundary, one of which is to be retained[11]. The landscape plan shows that the removed vegetation is to be replaced by screen planting along the eastern and northern boundaries of the subject land. We note the landscaping is designed to achieve comprehensive perimeter screening of the site, which, when established, will contribute to the privacy for the rear apartments at 8 St Aubins Avenue.
For these reasons we consider that the proposed development will not cause unreasonable levels of amenity impacts on the apartments at 8 St Aubins Avenue.

[55]

There are three properties in Kambea Grove directly to the south of the subject site. The southern façade of the proposed apartment building has variable set backs with well recessed landscaped corners to the east and west and an indented 'break' at the centre of the building to relieve the visual continuity of the building form. The upper level is also divided into two sections, each with a uniform setback of approximately 6 metres from the southern boundary.
The property at 17 Kambea Grove contains a contemporary single storey brick dwelling and abuts the south-eastern boundary of the subject land. The rear of the dwelling is set back of 11.5 metres from the common boundary with the subject land, with a total separation distance to the proposed southern apartment building of between 15.5 and 17.5 metres at the ground floor and 17.5 metres at first floor. Again the proposed building will be well articulated when viewed from this adjoining property, with a generous setback at ground level.
The ground level building setback is again proposed to be used to implement a variety of landscaping. The landscape plan nominates various deciduous and evergreen trees across the south east corner of the subject land to screen views between the proposed apartment building and private open space areas at 19 and 17 Kambea Grove.
A significant specimen in the corner of the site is a Chinese Elm intended to reach a mature height of 9+ metres. Discussion at the hearing sought to replace this tree with a suitable evergreen species with equivalent form. We consider this change is acceptable as it does not alter the overall intent of the landscape design. Having regard to the range of setbacks, the separation distances involved between built form, the level of articulation and the extent of landscaping proposed, we do not consider that any unreasonable levels of visual bulk will be apparent from 17 Kambea Grove.
The south facing upper level windows of proposed Apartment 18 are shown with sill heights of 1.7 metres above finished floor level. This apartment also has a east facing balcony that has a side view to the south, however, the horizontal distance to the southern common boundary with 17 Kambea Grove is approximately 10 metres. As a result we find that no unreasonable overlooking will occur.
Finally, the shadow diagrams demonstrate that the shadows cast at the equinox from the proposed development will fall within the boundaries of the review site. This is true for all of the properties that exist along the southern interface of the review site. We therefore find that there will be no unreasonable shadow impacts to any of the adjoining properties to the south of the review site.

[56]

The proposed southern apartment building has the same setback distances opposite 15 Kambea Grove, which contains a double storey masonry residence located 11.3 metres from the common boundary. This dwelling has an outdoor entertainment area and pool within the intervening space, which is currently screened by vegetation inside the southern boundary of the review site.
The entertainment area and the dwelling are opposite a 6 metre wide indent in the southern façade of the proposed building, designed to create a physical and visual break in the continuity of the building form. The indent is set back 9.95 metres from the common boundary with 15 Kambea Grove. The façade of the indent forms the southern end of the internal passageways at the ground and first floor levels, with side windows providing light to the entrances to proposed Apartments 7, 8, 18 and 19.
The owner of 15 Kambea Grove is concerned that light from the passageway will be visible through the night. This owner is also concerned that overlooking may occur.
The façade of the indented wall extends for the full height of the building and the amended plans show this wall as a glass curtain with a dark grey tint. Following detailed discussions with the applicant initiated by Mr Canavan QC on behalf of his clients at 15 Kambea Grove, the plans were amended to show the following annotations for the curtain wall and the side windows:
1. Curtain glass wall in recess to have tinted glass externally and solid infill panels internally at first floor level.
2. Windows with obscure glass (25% maximum transparency) to 1700mm.
Discussion also occurred concerning extending an existing brick boundary wall from a former garage as a new fence and trellis at the same height along the southern common boundary. This change is depicted in Longitudinal Section Plan SK14, dated 8 May 2014. Mr Canavan QC advised the Tribunal that these changes are acceptable to his Clients and agreed to between the parties. We concur with the acceptability of these changes in the context of the overall design, and that as a result no unreasonable levels of scale and bulk will be visible from the rear yard of 15 Kambea Grove.
We note that the landscape plan provides for a continuous row of Blueberry Ash screen trees along inside of the southern boundary, with an expected height at maturity of 8+ metres. At the hearing, and during our accompanied inspection, discussion occurred regarding the selection of a deciduous alternative to the Blueberry Ash and the retention of an established Oleander and a Douglas Fir adjacent to the southern boundary.
We find that it is appropriate to retain the Douglas Fir, however, we do not consider it necessary or desirable (for an aesthetic reason) to retain the Oleander. We also accept the suggestion of a deciduous replacement for the Blueberry Ash, noting that this will improve the penetration of winter sunlight to the outdoor living area at No. 15. Subject to these changes we are satisfied that an appropriate landscaping response will be achieved to this interface.

[58]

Properties at 4, 2 and 4A Albany Court abut the western boundary of the subject land. The three dwellings are quite close to the common boundary and have small private open space areas at ground level. In addition, the double storey dwelling at 2 Albany Court has a first floor balcony/terrace facing north, with a side view towards the subject land.
During the hearing Ms Bisucci raised concern with the potential for the upper level balconies to apartments 14, 21 & 22 to allow direct views into the first floor balcony and windows at 2 Albany Court. We note that these proposed balconies are setback just over 9.0 metres from the windows and balcony at 2 Albany Court, and as such no screening is required by Clause 55.04-6 of the Glen Eira Planning Scheme. Despite this, we accept that some overlooking will occur between these balconies and windows, given that one does not stop viewing people at nine metres away.
Unfortunately the overlooking that will occur is not solely the result of the proposed development. The dwelling at 2 Albany Court has been designed with first floor windows and balconies within around three metres of its boundaries, and which are unscreened, allowing views not only of the review site, but also the rear yard of 4A St Aubins Avenue. Clearly no overlooking would occur if these windows and balcony were screened in accordance with modern expectations. In the circumstances, we find that the design of the proposed development has 'done what it can,' or at least what is reasonable, to address the overlooking issue.
The west facing upper level windows in the northern apartment building are obscured to a height of 1.7 metres. There are four west facing windows and a recessed glazed curtain wall in the western façade of the proposed southern building. The plans show the four habitable room windows have a 600mm wide ledge at 1.3 metres above finished floor level to prevent a downwards view. There is no further screening of these windows as they are all set back 9 metres from the western boundary. The curtain wall provides light to habitable rooms in upper level Apartments 20 and 21 and are set back 12.55 metres from the boundary. We are satisfied these setbacks are sufficient to protect the amenity of the adjoining residents to the west.
In relation to the built form, we note that it will be around one metre lower than the first floor of the existing dwelling on the review site, and with a greater setback. While it will obviously have much broader built forms, this ability to directly compare the height and setback of the first floor walls to that which exists allowed us on site to understand that the proposed built form will not be unreasonable, when viewed from these adjoining properties.
In reaching this conclusion, we note the proposal for extensive perimeter landscaping along the western boundary, including agreement between the affected parties for the replacement of two proposed deciduous trees with appropriate evergreen species adjacent to No. 2 Albany Court.
Further discussion occurred concerning the general use of orchard trees in the landscaping. This matter is considered later in our reasons in the discussion on landscape permit conditions.
Finally, we note that the shadow cast by the proposed development will, for the most part, fall within the extent of shadows cast by the existing boundary fencing. Where some shadows will be cast beyond that caused by the fencing at 9.00am at the equinox on 4A St Aubins Avenue, such shadowing does not prevail at 10.00am and beyond. As such, the extent of shadowing is well within the acceptable standard contained at Clause 55.04-5 of the Glen Eira Planning Scheme.
For these reasons we find that there will be no unreasonable amenity impacts on the properties located to the west of the review site.

[62]

A number of the statements of grounds raised issues in relation to car parking and traffic matters, although in submissions at the hearing the car parking concerns were not pursued, and only traffic issues were raised. Regardless we will also address the merits of the car parking supply. The application involves the construction of 22 apartments, which each contain a mixture of two or three bedrooms, and some have two bedrooms plus a study. Clause 52.06 of the Glen Eira Planning Scheme requires the provision of resident car parking at a rate of one car space for every two bedroom apartment, and two car parking spaces for every three bedroom apartment. The plans before us propose the provision of two car parking spaces for each apartment, regardless of how many bedrooms they contain. The supply of resident car parking spaces therefore exceeds the requirement under the Glen Eira Planning Scheme.
Visitor car parking is required to be provided at a rate of one car space to every five dwellings, and therefore four visitor car parking spaces are required. The proposal seeks to provide five visitor car parking spaces, and as such exceeds the standard requirement. Given a reduction of the standard car parking requirement is not being sought, we must find that the supply of car parking is sufficient. Furthermore, the layout of the basement provides all car parking at grade, without any reliance on car stackers. As such, the level of convenience for access to each car parking space is high, and is likely to be well used by residents. It is therefore unlikely that there will be any unreasonable car parking impact on the surrounding neighbourhood.
In terms of traffic impacts, Ms Bisucci submitted that as the number of dwellings to be provided in St Aubins Avenue between Orrong Road and Fosbery Avenue will double, so too will the levels of traffic. It was submitted that this will have an unreasonable amenity impact on the neighbouring properties. We note that this submission is one based on amenity impacts, not whether St Aubins Avenue can physically cope with the additional traffic. St Aubins Avenue is very wide, and on our observations currently carries a relatively low level of traffic. We have no doubt that it can easily accommodate, in traffic engineering terms, the additional traffic, which we quantify below. That is a view shared by Council's own traffic engineer, who has supported the grant of a permit for the proposed development.
Turning to the amenity concern, we were not provided with any data of existing traffic levels. We are doubtful as to the analysis provided by Ms Bisucci, that traffic levels in this part of St Aubins Avenue will double as a result of the proposed development. That is because the traffic borne by a local road such as St Aubins Avenue is rarely, if ever, confined to the traffic solely generated by the dwellings along one stretch of the road. In this case, we consider it likely that in addition to the existing traffic identified by Ms Bisucci, this part of St Aubins Avenue will also carry traffic from residents of dwellings along:

[68]

We will retain the conditions sought by Council to achieve setbacks of the crossover from the street tree and the power pole, but reword both conditions to allow Council some flexibility to consider a reduced setback if persuaded to do so. 2. We have not been persuaded by the Council that more substantial changes are required to the proposed development to achieve an appropriate built form outcome. As such, we will delete those conditions seeking increased setbacks, reduced site coverage and more extensive permeability and secluded private open space. 3. We have equally not been persuaded that the proposal is deficient in terms of natural light and ventilation to the dwellings, including via the light wells. We will however seek to ensure that water harvesting is more than just a token gesture, by requiring the size of the water tanks to be provided, with calculations demonstrating that they will be sufficiently sized to provide irrigation for landscaping for most of the year. 4. We have amended the requirements for fencing of the tree protection zones, to recognise that this permit allows some works within those zones, across which a fence could not be maintained. 5. We will also amend the general condition requiring all windows to be screened, to specify the particular windows to which we want to see additional screening provided. We have added the master bedrooms to apartments 16, 17, 20 & 21 to this list, and seek that the currently uninterrupted views from these windows to the ground level areas of secluded private open space within the review site be screened to some extent. This could be achieved by a horizontal louvre, pergola, or some other means, but should not necessarily need a 1.7m high screen to these windows. 6. We will require the outer edge of the first floor balcony planter boxes to be increased in height to 1500mm. A cross section was provided which demonstrated that an outer edge 1330mm high was sufficient to restrict overlooking, to the point that only the head of a person standing in an adjoining property 9 metres away will be seen. We consider that the view to a person, even if it is their head, nine metres away does not comply with the relevant standard. We will therefore require overlooking to be more restricted than proposed by the Applicant, while still allowing for outward views across the landscape. 7. During the course of the hearing the question was raised whether the roof plant and lift overrun will be visible. The Applicant responded by providing cross sections showing the likely height of the lift run and plant, and demonstrating that they wont be visible on views up and over the pitched and parapet roofs. We find it appropriate to require such sections to form part of the endorsed plans. We will word a condition appropriately. 8. A number of changes to the landscape plan prepared by Carol Frank-Mas were negotiated by the parties, and presented to us by way of draft conditions. We endorse most of these changes as representing different preferences of trees without impacting the integrity and effect of the overall landscaping approach. We do not however support the proposal to replace one whole interface of trees with a selection of fruit orchard trees. Such planting, if it were to be allowed to occur, would create a reduced landscaping effect, for parties both external and internal to the site. We are also cognisant of the likelihood that the proposed fruit orchard trees, while sought by two land owners, will likely open up views of the building from other nearby properties. For these reasons we do not endorse this approach, even though the Applicant has agreed to it. We will therefore not be adding this condition.
At the conclusion of the hearing the parties discussed which conditions should only be permitted to be varied by VCAT, with all parties in agreement that this restriction should apply to at least some of the conditions. Section 72(2)(a) of the Planning and Environment Act provides that the Tribunal can specify which permits, or parts of permits, cannot be amended by the Council under its usual powers. We consider that this Section should not be used broadly, but only when a specific set of circumstances deem it necessary. In this case, we have a Council which is entirely capable of considering amendments to these permit conditions in a manner which is fair to all parties, and which may include seeking the views of surrounding residents when considered appropriate. We see no reason in this case why we should take that power away from the Council. While we agree that there are some conditions included on the permit which have been arrived at through a consent or negotiated basis, we do not agree that the Tribunal has a monopoly on the ability to rationally and fairly consider changes to these conditions, in a manner that gives rights to all parties. We equally consider that the Glen Eira City Council can play this important role, and should do so in the first instance should an amendment to the conditions be proposed. We will therefore not be identifying any parts of the permit as being 'off limits' to Council's consideration of amendments under the Act.

[91]

The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.
Prior to the commencement of the buildings and works (including demolition), a tree protection fence must be erected around all retained trees as per the TPZ distances outlined in the John Patrick Pty Ltd Report (October 2013; pages 10-17) to define the 'tree protection zones'. These fences must be constructed of star pickets and chain mesh (or similar) to the satisfaction of the Responsible Authority. The tree protection fences must remain in place until the construction within the tree protection zones is required. The tree protection zone for that component of the development not required for construction must remain fenced until construction is complete. No vehicular or pedestrian access, trenching or soil excavation is to occur within any tree protection zone. No storage or dumping of tools, equipment or waste is to occur within the tree protection zones. The ground surface of the tree protection zones must be covered by a protective 100mm deep layer of mulch prior to the development commencing and be watered regularly to the satisfaction of the Responsible Authority.
All existing vegetation shown on the endorsed plan(s) to be retained must be suitably marked before any development (including demolition) commences on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
Root sensitive permeable paving such as 'on-ground' or 'no-dig' paving (or similar) are to be used where any part of any proposed paving comes within the TPZ distances outlined in the John Patrick Pty Ltd Report (October 2013; pages 10-17).
No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.
All pipes (excluding downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
No plant, equipment, services and substations other than those shown on the endorsed plans are permitted without the prior written consent of the Responsible Authority.
All plant, equipment, services or architectural features as shown on the endorsed plans must be screened from view by the roof pitch profile unless with the prior written consent of the Responsible Authority.
All outdoor lighting must be baffled and/or located to prevent light from the site causing detriment to the locality to the satisfaction of the Council.
The Permit holder must ensure that all dwellings within the development are protected from noise associated with any on-site mechanical plant equipment, consistent with the requirements of the State Environment Protection Policy N-1.
An acoustic fence must be provided along the western boundary of the subject land adjacent to the basement ramp as follows:

At a glance

Court

Decision date

Source

Judgment (119 paragraphs)

Thistle Nominees Pty Ltd v Glen Eira CC [2014] VCAT 664 (4 June 2014)

Parties