Victorian Civil and Administrative Tribunal|2001-02-28

Treloar v Bayside CC [2001] VCAT 250 (28 February 2001)

Planning; Four (4) storey retail and residential mixed development; Sandringham Urban Village shopping centre; Sandringham Urban Village Policy; thrust behind policy to strengthen declining strip shopping centres; clear and specific policies and guidelines adopted on building heights in different parts of this Urban Village; policies written in 1998, tested and confirmed at Ministerial level and adopted relatively recently; council exhibiting Am C2 capping heights at 3 storeys; whether seriously entertained planning policy;

Planning; Four (4) storey retail and residential mixed development; Sandringham Urban Village Policy; balconies at first and second floor levels extending three metres and one metre over public footpaths; amenity of balcony dwellers; private open space borrowing too heavily from the public domain; projections past title boundaries for architectural interest contrasted with projections for the purpose of not supplying obligations onsite; overdevelopment.

1. A permit is granted and directed to be issued for the land at 12-14 Bay Road, Sandringham. The permit will allow the use and development of a four storey building containing retail premises and eight dwellings and a reduction of the requirements for car parking in accordance with the endorsed plans. A permit is granted subject to conditions. The Responsible Authority is directed to issue a permit subject to the following conditions (and in accordance with the direction set out below).

The Responsible Authority is directed under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the use and development of a four storey building containing retail premises and eight dwellings and a reduction of the requirements for car-parking on the land at 12-14 Bay Road, Sandringham in accordance with the endorsed plans and subject to the following conditions:

1. Before the use and/or development starts, three copies of the amended plans drawn to a scale of 1:100 and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans numbered A101, A102, A103, A104, A105, A106, A107, A108, A140, A141 and A142 dated July 2000 but modified to show:

(a) the verandah maintained over the footpath for shelter for pedestrians and shoppers;

(b) the balconies at first floor level which overhang Bay Road set back so that they protrude not more than one metre from the title boundary of the building;

(d) the front facade of the units at third floor level set back 6 metres from the title boundary;

(e) the roof top terrace at fourth floor level set back 6 metres from the front title boundary;

(f) all balcony/terrace balustrades to be of see-through, lightweight materials as generally depicted in the Section A-A Drawing No. A140 dated July 2000, to the satisfaction of the Responsible Authority;

(g) levels to A.H.D. and finished floor levels and roof heights to be submitted;

(h) all wall heights above ground level to be nominated on the plans;

(i) provision of further articulation treatments to the front elevation of the building to the satisfaction of the Responsible Authority;

(j) a schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing) to the satisfaction of the Responsible Authority;

(k) all plant and equipment (including air conditioning units, heating units, hot water systems, vents, flues, airscrubbing systems etc) to be identified and located to the satisfaction of the Responsible Authority and shall not be located on any balcony or roof deck area;

(l) all car parking spaces must have a minimum width of 2.6m and a minimum length of 4.9m. Spaces adjacent to a wall or column are required to have a width of 2.9m. The columns are required to be setback 250mm from the ends of the car parking spaces;

(m) the ramp design must accord with the Australian Standards for off street parking (AS 2890.1-1993). The proposed ramps require transition grades of a 2m length to comply;

(n) provision of screening to the south facing balconies to the satisfaction of the Responsible Authority;

(o) a completed Energy Victoria House Energy Rating Score sheet for the proposed development to the satisfaction of the Responsible Authority;

(p) modifications to the ramps to include appropriate transitions (2m lengths of 1:10 ramps at the top and bottom of each ramp) and to improve access to/from bays 1 (ground) and 9 (basement) by curving the end of the ramp and modifying the walls adjacent to the stairwells;

(q) convert bay 2 of the ground floor car park into a permanent turning bay;

(r) relocate or remove columns at or near bays 3 and 11;

(s) Relocate the basement bin store to the store area, and provide a bicycle storage area;

(t) install convex mirrors and warning lamps to the basement car park entry/exit and modify the south western corner (3.5m) and the east wall above the basement ramp (1m) to provide clear viewing lines of and for entering and exiting vehicles to the satisfaction of the Responsible Authority. The Responsible Authority must, for a period of 14 days from receipt of these modifications, consult with the Body Corporate of 122 Beach Road, Sandringham in relation to this requirement.

2. The finished ground floor level of the building must not exceed a height of 500mm above natural ground level, at any point.

4. The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

5. Before the use and/or development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority. The plan must show a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to Council's nominated point of discharge to the satisfaction of the Responsible Authority. Plans for the construction of the drain between the site and the Council drain must be approved by the Responsible Authority prior to the commencement of the works.

6. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

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

(a) The development and use is/are not started 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.

8. Street numbers contrasting in colour to the background shall be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers shall be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.

9. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

10. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.

11. Before the use and/or development starts, areas set aside for parked vehicles and any 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;

(d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority.

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

12. All basic services, including water, electricity, gas, sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.

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For the Applicant for Review: Mr Mark Naughton from Minter Ellison, Solicitors.

For the Responsible Authority: Mr Philip Martin appeared for Bayside City Council.

For the Respondent/Objectors: Mr Stephen Bitmead appeared on behalf of the Body Corporate, 122 Beach Road.

1. This was an application under section 77 of the Planning and Environment Act 1987 for review of a decision to refuse a permit (Application No 2000/005401), for the land at 12-14 Bay Road, Sandringham, for the use and development of a four storey building containing retail premises and eight dwellings and a reduction of the requirements for car-parking in accordance with lodged plans.

2. The land area and dimensions are 12.19 metre frontage x 31.03 metre depth giving an area of 374m2 area.

3. 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 Mark Naughton for the permit applicant requested the Tribunal to amend the application for permit by substituting revised plans dated July 2000 for those which had originally accompanied the application.

4. All parties were aware of the revisions, as the Notice of Refusal and the Officer's Report had been based on the revised plans. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested.

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

The site is situated on the southern side of Bay Road, approximately 30 metres east of the corner of Beach Road and Bay Road. The site is regular in shape (comprising two lots) with a frontage to Bay Road of 12.19m, a depth of 31.03m and an overall area of 374sq metres.

The site is within the Sandringham Shopping Strip, located 100m from the Sandringham Train Station and a similar distance from the foreshore of Port Phillip Bay. The site is located within the Sandringham Urban Village precinct.

The site is almost diagonally opposite Station Street and about 30m from the Beach Road intersection, which forms the primary access to and from the Sandringham shopping strip. Pedestrian access to the site is from Bay Road and vehicle access is provided via an existing laneway to the rear of the site which services the Beach Bay apartments on Beach Road and provides access to an underground public carpark.

The surrounding buildings are almost exclusively commercial in nature with the exception of the three storey Beach Bay apartment to the south west of the site (which is in an R1 zone). The adjoining double storey development to the west is presently occupied by Hodges Real Estate, while the adjoining property to the east is occupied by a single storey commercial development (Hocking Stuart Real Estate). The buildings located directly opposite the site to the north are single storey commercial buildings.

6. The Tribunal adopts the following description of the proposal, taken from Mr Martin's written submission:

At present, there is an existing single storey vacant building on the site. The proposal involves demolishing the existing building on the site and constructing:

* 4 apartments (2 bedrooms) at the first floor level;

* 4 split-level apartments (3 bedrooms) over the second and third floor levels; and

The balcony fronting Bay Road at the first floor level, extends over the whole width of the footpath (approximately three metres,) and the balcony at the second floor level extends approximately one metre over the footpath. The third floor level of the building is set back almost five metres, however a roof terrace with external sunshading occupies this entire area. The overall height of the building is approximately 12.5 metres.

7. The land is zoned Business 1 under the Victoria Planning Provisions (VPP) format Bayside Planning Scheme, which was gazetted on 24 February 2000. There are no heritage overlays or heritage issues pertaining to this site.

8. Relevant applicable policies are the Sandringham Urban Village Policy at cl.22.04, although it is necessary to point out that on 23 October 2000, the council wearing its "planning authority hat", passed the following resolution in respect of Amendment C2, which had been on public exhibition in June and July 2000.

* The maximum height of buildings in Activity Centres is now capped at 3 storeys with a 4 metre setback for the third storey.

* A base density of 1:50m² is adopted for development in Activity Centres.

At the same time Council resolved to engage a consultant to review the Sandringham Urban Village Strategy which has been in place since March 1998.

9. The status of both Amendment C2 and council's resolution cannot be regarded as a "seriously entertained policy position" because a Panel appointed by the Minister for Planning has neither tested nor considered same and it is early days yet. As Member Baird held in Bruce Henderson Pty Ltd v City of Bayside & Ors (No. 2000/30699 unreported), the weight to be given to Amendment C2 must be less than if it were further advanced, and the greatest weight must be given to existing policies within the planning scheme.

10. This is all the more so, since the planning scheme was gazetted relatively recently, on 24 February this year, and after thorough Ministerial Panel hearings. The gazetted cl.22.04 followed a detailed and very specific study, the Sandringham Urban Village Strategy, undertaken in respect of this very `activity centre' and adopted by council in March 1998.

11. Whereas decision making usually involves balancing a variety of more general planning policies, such as cl. 14.02 (Metropolitan development); cl. 17.01 (Activity centres); cl. 19.03 (Design and Built form), and cl. 21.06 (MSS), this case involves a clear strategic direction adopted by the Council and the Minister for Planning specifically in respect of the Sandringham shopping centre - the Sandringham Urban Village Policy at cl. 22.04.

12. Whereas Bayside has many activity centres, the policies for which are more general (and have been commented on by this Tribunal in the 10 Church St, Brighton and 197-205 Bay Street, Brighton cases to which I refer later), this activity centre in Sandringham was chosen as a pilot project for more detailed and specific work as an Urban Village ahead of all the others.

13. I set out the overview in cl. 21.06, as it explains the impetus behind the Sandringham Urban Village strategy as a pilot project:

From an overall perspective, the survival and vitality of local shopping centres is becoming more than just a simple marketing exercise of identifying needs and targeting a particular product or service. With vast improvements in communication and information technology, increasing competition and more sophisticated consumers, it is now recognised that a holistic approach with greater emphasis on sustainability principles and the net community benefits of urban village development is required.

14. Its impetus was the decline of the strip shopping centres in Bayside, after competition from the then recently enlarged Southland giant. Its purpose was to set up an Urban Village which is:

A mixed use urban centre with medium density housing, shops, workplaces and a central public transport stop. They have safe, attractive street, some public parkland and opportunities for recreation. Their design promotes energy efficiency, pedestrian activity and social interaction.

15. Mr Biles, planning consultant for the applicant, drew my attention to the Ormond Road Village in Elwood, which he said illustrated the intent sought to be achieved for small declining strip shopping centres in strategically suitable locations (based on public transport nodes).

16. It is worth setting out the entire Sandringham Urban Village policy wording in full, given that it is so clear and specific in its nature.

This policy applies to the Sandringham urban village area shown on the Sandringham Urban Village Height Plan forming part of this policy.

This policy implements the strategic directions of the Municipal Strategic Statement on activity centres.

In response to concern that Sandringham's population and business activity is in a state of decline, Council has developed the Sandringham Urban Village Strategy to promote the concept of self-sustaining communities where living, working, recreating and shopping can all occur within walking distance.

Whilst the land use zoning provisions provide broad controls over land use and development in and around Sandringham, it is critical that Council provides more specific policy guidelines indicating priorities and preferred development within the various precincts if the strategy is to succeed.

* To protect and enhance the character, heritage, streetscape and pedestrian environment of the Sandringham Urban Village.

* To encourage development of Sandringham Shopping Centre as an active, safe, attractive, coastal, commercial, community and housing node.

* To maintain a human scale and diverse and active building frontage at street level.

* To protect the foreshore, dwellings, public and private open space, public pedestrian areas and solar collectors from overshadowing.

* To maximise views of the bay and public street areas.

* To minimise overlooking of private open space associated with dwellings.

* To improve energy efficiency in building design and urban form.

* To maintain consistency with urban design and development objectives in the Bayside Coastal Strategy, 1997 and the Victorian Coastal Strategy.

* Buildings and works complement Sandringham's unique character with sympathetic contemporary design that respects heritage places.

Ø Follow Sandringham's pattern of narrow repeating frontages at street level.

Ø Follow the general 2-3 storey height of buildings at the street frontage in the shopping centre.

Ø Incorporate attics and set back of upper storeys from the frontage to complement scale of streetscapes.

Ø Respect the form and orientation of adjoining buildings.

Ø Have a "public face" to building elevations with detail in the facade treatment, windows, entrances and balconies.

Ø Incorporate decorative or distinguishing features on corner buildings to add variety and legibility to the streetscape and highlight key locations within the shopping centre.

* In the retail core area, a fourth storey be permitted on corner sites or other sites where the setback of the fourth storey from the street frontage has a minimal visual impact from ground level_._

* In the Bay Road office precinct, a maximum height of three storeys be permitted.

* In residential precincts (including the northern side of Abbott Street and south-west of Sandringham Road and Fernhill Road North), a maximum height of three storeys be permitted providing the third storey is set back from the street frontage in a similar way to the fourth storey setback of the retail core area.

* The layout of new buildings minimise the potential for overlooking private gardens and maximise views of public streets and the foreshore.

* The height and bulk of new buildings minimise overshadowing private gardens, public pedestrian areas and solar collectors.

* Building materials include the use of red brick, cream render and other complementary materials that respect Sandringham's Edwardian character influenced by key buildings.

* Shelter be provided to improve pedestrian amenity by providing continuous shop front verandahs and that verandah posts be incorporated only if heritage restoration is relevant.

* Balconies and rooftop courtyards providing views of the street be encouraged in commercial areas.

* New buildings and major extensions achieve a 4 or 5 star energy rating using the Energy Victoria's House Energy Rating Scoresheet.

* Storage space for bicycles, outdoor clothes drying and recycling collections be provided.

* The design of vehicle access ways and parking minimise impact on the pedestrian environment and streetscape.

* Street trees and established trees on private property be retained and opportunities for new plantings be pursued.

17. What is only partially apparent from the above policy wording, is that a Map is also a part of the Policy. It cannot be reproduced in this decision, but clearly divides and graduates this activity centre into different height areas, going from two storey abutting traditional residential areas to four storeys in the heart of the shopping centre. It is called the Sandringham Urban Village Height Plan.

18. By comparison with the policies for other Bayside activity centres, such as Church Street Brighton, clause 22.04 is very detailed. This should be contrasted with Ridge Corporation Pty Ltd v Bayside CC & Ors 1999/19550 unreported where the Tribunal held:

During the course of the hearing, we were advised that the Council had resolved to proceed with the exhibition of a planning scheme amendment to give effect to the recommendations of the Bayside Height Control Study. Ms Ring in her evidence, stated that this study is part of an emerging policy framework which is:

...likely to encourage a variety of building heights not dissimilar to those applicable in Sandringham Village. This approach would be consistent with the new State Planning Policy Framework which encourages more intensive use and development of land in activity centres with good access to public transport.

The weight to be given to this document is clearly less than that to be given to a document which had been through the planning scheme exhibition process and which formed part of the adopted policy framework in the planning scheme. Notwithstanding the status of the report and the weight to be given to it, we are not convinced that the document advances the Applicant's case. While we acknowledge that the report appears to provide for four storey maximum heights in commercial centres, the objectives of the study nevertheless emphasise the local, village feel of Bayside's commercial areas. The report also calls for detailed urban village studies to examine the opportunities for increased height in appropriate locations. While it would be reasonable to assume that this would be the purpose of the Height Control Study, it appears that the Council is reluctant to "bite the bullet" on this issue. The recommended height limits in commercial centres is required to be considered in the context of the objectives which emphasise the retention of prevailing scale and streetscape rhythm, and the avoidance of buildings which dominate the centres or impact on the intimate scale of strip centres, until detailed studies are completed for each centre.

19. In respect to height controls in this Sandringham shopping centre, the council has clearly `bitten the bullet' in respect of heights permitted to achieve its strategy.

20. The subject application for permit (No 2000/5401) was lodged with the Responsible Authority on 17 March 2000. The application was referred to VicRoads who offered no objections. Notwithstanding the council's officer's recommendation to grant a permit subject to conditions, including conditions as to further articulation treatment to the front elevation and a schedule of materials and finishes, the council resolved to refuse the application.

21. The subject application for review was lodged on 1 August 2000. By forwarding grounds for contesting the application for review Body Corporate of 122 Beach Road and the Kellys became parties to the proceeding.

22. The Kellys did not appear at the hearing, but Mr Bitmead of K A Reed & Co represented the Body Corporate, which was a three storey residential neighbour to the south. At an early stage of the hearing, it became apparent that the permit applicant and Mr Bitmead's clients could resolve their differences by consent. The issue revolved around traffic safety and car park logistics. After a short break, conditions were drafted by consent, and now form the basis of the conditions directed to be issued. These consent conditions numbered (k) to (o) inclusive remain on the Tribunal file.

23. Although further revised plans for the ground floor and basement were supplied as part of the hearing plans, to illustrate matters which had already formed part of the consent with the objector Body Corporate, those plans cannot be made a part of the named set for endorsement, as they were not identified with a fresh revision number and might be confused with the revised set dated July 2000 substituted with the Responsible Authority prior to the issue of the Notice of Refusal.

24. Therefore, the only clear option is to incorporate all the consent conditions in the conditions, noting that revised plans which already reflect consent conditions (k) to (n) inclusive have been drawn, are located within the book of plans tendered to and initialled by the Tribunal and remain on the Tribunal file. The benefit of that knowledge is the ability to refer back to the initialled plans in the event of confusion with the wording of conditions (k) to (n) inclusive. Condition (o) was drafted by agreement during the break in the hearing.

25. The parties and the witnesses in the appeal made both written and verbal submissions. A number of plans, photographs and other documents were tendered to the Tribunal. The Tribunal conducted an extensive inspection of the site and its locality.

26. Having resolved the traffic issues, the principal issues for consideration in respect of this application for review fall into three categories, the first two of which are related:

(i) height and bulk of the building creating unreasonable visual bulk;

(ii) out of keeping with existing streetscape character; and

(iii) locating balconies outside title boundaries over public footpath.

27. That is because notwithstanding the other four grounds of refusal notified by the Responsible Authority, these three were the only ones pursued at the hearing.

28. Other issues raised included overlooking and overshadowing, but shadow diagrams have satisfied the Tribunal that shadowing complies with the Good Design Guide criteria and that overlooking is satisfied by proposed condition 1(n) (screening to the south facing balconies).

HEIGHT AND BULK OF THE BUILDING AND STREETSCAPE ISSUES

29. Under the Sandringham Urban Village Policy, a four storey development is permitted on the site, "where the setback of the fourth storey from the street has a minimal visual impact from ground level".

Council's opposition to the proposal centres on its bulk and density. Council accepts that in the context of an Activity Centre, provided any new development will not dominate the streetscape, there should be a degree of flexibility with height levels to allow greater residential densities. However, in the context of the Bay Road shopping strip, the current consistent character of the street is one or two storey commercial buildings. Accordingly, there is a low scale village feel to this section of Bay Road. In this situation, Council considers that the proposal will dominate and undermine the existing streetscape, despite the design input such as the five metre setback of the top storey.

31. In Council's view, people using Bay Road for village style strip shopping are looking for a low rise, intimate shopping experience, not a four storey frontage plus a sundeck. The average shopper in Bay Road will regard the proposal as out of character with the balance of the Bay Road retail area.

32. Mr Martin drew a distinction between the Tribunal's recent approval of a four storey office/residential development at 197 Bay Street, Brighton (BVD PL v Bayside CC Appeal No. 2000/21645 unreported) which involved, by comparison, a very large block with a 30 metre frontage and an overall area of 2,720sq metres and this case with a frontage of only 12.19 metres and an overall area of only 374 metres. In Council's view the modest size of the site here means that the four storeys will look "crammed" onto the site.

33. The Responsible Authority urged the Tribunal to repeat its recent approval of a three storey office/residential development at 10 Church St Brighton, just outside the edge of the Church Street shopping centre and opposite the St Andrews Church and church grounds (Ridge Corporation Pty Ltd v Bayside CC & Ors 1999/19550 unreported). That decision disallowed an application for four storeys, but permitted three storeys.

34. Again, each site must be determined on its merits, the immediate differences being:

(i) that site was across the road from and outside the core shopping centre, in a Business 2 zone, whereas this one lies in a Business 1 zone;

(ii) that site was within a cultural and heritage node containing the St Andrews Church, Old School building (now converted) and church grounds, whereas no cultural or heritage precinct issues are concerned here;

(iii) Council had not yet "bitten the bullet" concerning designated heights for different parts of that shopping centre as opposed to this centre;

(iv) Council's urban design expert gave evidence in that case supporting a three storey development as finally allowed by the Tribunal, whereas no expert evidence was presented by council in this case to support its stance in favour of three storeys as opposed to four storeys. By contrast, Mr Biles for the permit applicant was able to point to clear gazetted policy direction.

35. The site lies near a three storey residential building in a Residential 1 zone, at the interface with the shopping centre. The edge of the shopping centre has already been framed by this tall building. The abutting existing Hodges building is nearing three storey proportions, because it is an older two storey building with its parapet rising towards a third storey. The site not only lies in the retail core, but also in that part of the village that has been earmarked for heights of four storeys.

36. It is true that development in accordance with the policy will change the existing low rise shopping experience. However, as Mr Biles explained, the policy by its nature changes the status quo in order to achieve the outcomes it sees as desirable. In this instance, it delivers a clear message about certain heights in certain areas.

37. The height policy only encourages four storeys, provided there is only minimal visual impact on the streetscape. The desire is to preserve the human scale of the centre.

38. The Tribunal will permit a four storey development in this location, provided the fourth storey is adequately set back. At the current five metre setback, it is not entirely out of view when standing across Bay Road, nine to ten metres opposite the subject land, but only the top of the fourth level would be visible if one was to take a close look. One could set the fourth level further back to obviate any views at all. A further two metre set back would eliminate all views of the entire fourth level from across the street. Another one metre setback would reduce the amount seen (1.2 metres of building) by approximately 20%. The Tribunal has decided to impose a further one metre set back (to six metres) to ensure minimal visual impact on the streetscape.

39. Any views of lightweight, see-through balustrades within these view lines do not trouble the Tribunal, as they do not create bulk. Solid balustrades would be another story.

40. However, to preserve view lines and maximise views of the public street areas, again in accordance with stated policy, setbacks of the terraces will be necessary, and are discussed in the next section.

41. The applicant's justification for balconies projecting three metres over title boundaries is that the policy supports interaction between people and the street. The policy seeks an active building frontage at street level. Provision of balconies overlooking the street but within title boundaries will achieve this policy. The Tribunal is of the opinion that the three metre projection borrows too heavily from the public domain. What the policy does not seek is people sitting completely over footpaths, next to advertising boards, street signs, traffic poles and truck stops. Nor does the policy seek an overpowering, dominating or oppressive street frontage, where buildings project into and thereby enclose what should be an open, pleasant pedestrian experience. The policy seeks to open, rather than enclose view lines. See Ridge Corporation Pty Ltd v Bayside CC & Ors 1999/19550 unreported.

42. Therefore, the Tribunal will allow the four storey development, subject to setback of balconies mainly within title boundaries, but allowing one metre projections for architectural interest, articulation and the opportunity to provide a play of light and shade. Conditions have been drafted to this effect.

43. In summary, I have found that the policies for the area clearly and strongly support this type of development, and that a lot of effort, planning and thought have gone into those policies. A perusal of the dedicated Sandringham Urban Village Strategy adopted by Council on March 1998 indicates the background effort and reports that preceded the Strategy from 1994 onwards. This effort was performed by architects, traffic engineers, heritage consultants, town planners, residents, shopkeepers and others. The height controls set out in that Strategy were incorporated into the planning scheme after a thorough and lengthy VPP Planning scheme process between 1998 and 2000.

44. It is a waste of human energy and skill for time to be expended on drafting, testing and adopting specific policies for a particular centre over at least a three year period and for that effort to then be ignored a few months later. How much ink, how many reams of paper and how much human effort must continue to be wasted if such exercises are rendered futile?

45. The Tribunal will direct that a permit issue subject to conditions as set out above.

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Treloar v Bayside CC [2001] VCAT 250

At a glance

Court

Decision date

Source

Judgment (149 paragraphs)

Treloar v Bayside CC [2001] VCAT 250 (28 February 2001)

Parties