Trisand Pty Ltd v Moonee Valley CC [2005] VCAT 612

Trisand Pty Ltd v Moonee Valley CC [2005] VCAT 612 | Case summary | Zoe

[6]

(a)

Modifications to the screening devices around the north facing balconies at all levels to incorporate planter boxes integral to the design of the building to prevent overlooking of the backyards to the north;

(b)

Plants to be used in the planter boxes and other details [soil mix, irrigation etc] to ensure the viability of the landscaping.

(c)

Modifications to the entry to Unit 6, generally as shown on plan sheet 3 of 9 Revision C tabled at the hearing of Application No. P3177/2004;

(d)

Corrections to the positions of the central void over the atrium and balustrades, generally as shown on Revision C plans tabled at the hearing of Application P3177/2004;

(e)

A notation on plan to show one car space allocated to each dwelling and five car spaces to the office component, with the deletion of the visitors parking notation.

(f)

All car spaces are to be appropriately marked and allocated to the relevant dwellings and office use.

(g)

The columns on the eastern side of the carpark to be relocated to 0.25 metres towards the eastern wall so as to allow sufficient door opening space.

(h)

The provision of a mirror or other suitable device near the car park entry to assist drivers exiting the site onto Keilor Road to have clear views of pedestrians approaching the site from the east.

(i)

The security entrance door for the car park to have a minimum setback of 6 metres from Keilor Road.

(j)

The ramp gradients conforming to the Australian Standards for Off Street Car Parking AS/NZS 2890 1 (2004).

(k)

The modifications to the crossover and access to the carpark in accordance with the requirements of VicRoads.

(l)

Fixed sun shading devices erected above all of the north elevation windows.

(m)

The provision of 6 cubic metres of storage space for each dwelling.

(n)

A central located bicycle rack within the car park that has a minimum of 4 bicycle spaces.

(o)

The incorporation of acoustic protection measures to all dwellings within the building.

(p)

Acoustic attenuation of all building services and plant equipment.

(q)

A full schedule of external materials, colours and finishes.

[31]

10 The subject site is located on the north side of Keilor Road, about 66 metres east of Service Street. The site has a frontage of 18.29 metres and an overall area of about 770 square metres. The site slopes by a little over 1 metre from its frontage down to its rear boundary. The site is currently occupied by a single storey dwelling that is used for an educational type use.

11 Properties immediately to the east of the site are occupied by single storey dwellings, with the dwelling on the property immediately to the east used as a podiatry clinic. Commercial/industrial style buildings exist to the west.

12 The 3 metre wide laneway separates the subject site from residential properties to the north that front onto the south side of Kerford Street. These properties are occupied by single storey dwellings which have their backyards adjacent to the laneway. A large park exists to the south on the opposite side of Keilor Road with a 4 storey retirement home now under construction further west.

13 Contextually the site is located within a commercial strip where the buildings are of mixed character, comprising both dwellings many of which are now used for commercial purposes and purpose built commercial buildings. Many nearby properties are occupied by "auto" related uses including motor repairs and car yards. Intermixed with these commercial uses are a limited number of residential properties between the site and the North Essendon Activity Centre. The Niddrie Activity Centre exists further west. The area to the north of the site can fairly be described as residential hinterland.

14 Buildings along this part of Keilor Road are mainly single and double storey in height. However, I have already noted the 4 storey retirement home under construction to the south. Further, a permit has been granted for the construction of a 4 storey building for showroom and apartments on a property a few doors to the west at 74 Keilor Road.[2]

15 Tram and bus services run along Keilor Road whilst the Essendon North Shopping Centre is within walking distance, a few hundred metres to the east.

[33]

21 Under the Moonee Valley Planning Scheme the subject land is located within the Business 2 Zone, provisions for which are found at Clause 34.02.

22 In this zone a permit is required to use land for the purpose of "dwelling" and to construct buildings and works. No permit is required for "office".

23 Decision guidelines under the zone control[3] require a range of matters to be considered including the Planning Scheme's policy frameworks; the effect that existing uses may have on the proposed use; the availability of services; the impact on traffic; car parking; the interface with other zones particularly those that are designated for residential use as well as the impact on the streetscape.

24 The proposed building is over 3 storeys in height and, as such, the provisions of Clause 55 do not apply. Clause 19.03 of the Planning Scheme requires that applications involving residential accommodation in buildings of four storeys or more be considered against the new "Design Guidelines for Higher Density Housing".[4] However Ms Stupak and Mr McGurn agreed that by and large, the relevant design issues could be appropriately dealt with under the provisions of Clause 19.03 and the proposed Clause 22.13 which is the subject of Amendment C50 to the planning scheme. I understand that the amendment has been reviewed by a panel, adopted by the council and is awaiting approval from the Minister for Planning. As such, it is reasonable for it to be taken into account.

25 There are no overlays applicable.

26 Parking requirements are set out at Clause 52.06. A permit may, however, be granted to reduce the car parking required under this Clause. Consideration must be given to the matters set out at Clause 52.06-1.

27 A permit is also required under Clause 52.29 as it is proposed to modify the vehicular access onto Keilor Road which is located within a Road zone Category 1. Applications must be referred to VicRoads.

28 In their respective submissions and evidence reports, Ms Stupak and Mr McGurn drew my attention to the various policies and strategies in the Scheme that are in some way applicable to the consideration of the proposal. I do not propose to recite all the policies in these reasons as to do so would lengthen them unnecessarily; however, I will refer to them as appropriate later in this document.

29 Ms Stupak and Mr McGurn also referred to Melbourne 2030 which is an adopted Government strategy.

[38]

34 On reviewing the various elements of the Planning Scheme's policy frameworks, I am in no doubt that they unambiguously support higher density residential development on sites like this.

35 In particular, Clauses 14.01 and 14.02 in the State Planning Policy Framework [SPPF] encourage higher densities and mixed use development near activity centres and fixed rail public transport. Clause 16.02 encourages the development of medium density housing that improves housing choice and makes more effective and efficient use of existing infrastructure.

36 In relation to the Local Planning Policy Framework [LPPF], the Council's MSS suggests that there is an imbalance between the housing that is available within the municipality with nearly 80% of dwellings having 3 or 4 bedrooms whilst over half of the municipality's households comprise only one or two people.[5] The MSS also recognises that there is an increasing diversity of household types and a need for greater housing choice and affordability. I would think that the provision of new apartments providing a mix of single and 2 bedroom accommodation responds to the residential land use issues expressed in the MSS.

37 Further, the "Residential Design Policy" at Clause 22.06 acknowledges that "without new residential development Council cannot sustain existing population" and that sustaining the existing population levels provides "significant social and economic benefits to the community." The objectives of the policy then goes on to specifically "encourage and facilitate residential development within urban villages as identified in the local design policies."

38 Although not defined in the planning scheme, the "Urban Village" emerged in local planning as concept around the mid 1990's in response to urban consolidation policy initiatives. "Urban villages" are generally understood to be areas where higher residential densities are encouraged adjacent to public transport nodes and activity centres. The aim is to facilitate the more effective and efficient use of the existing infrastructure to create largely self sufficient "villages" that provide for a range of needs, including shopping, community services and employment; within walking distance of public transport to reduce dependence on travel by car. Higher residential densities are integral to the creation of viable "urban villages".

39 The local design policy for the Essendon North area is found at Clause 22.06.06. The policy states that there are only "limited to moderate levels of additional residential infill and redevelopment opportunities" in this area. However, the policy then goes on to "support the development of urban villages around existing commercial and transport nodes." More specifically, it is envisaged that this policy outcome will be achieved by, amongst other things, facilitating "the development of urban villages between Keilor Road and Essendon North Shopping Centres."

40 The site is not only within this area, but importantly, is clearly within walking distance of a "Major Activity Centre" identified under Melbourne 2030.[6]

41 Having regard to this, it is not difficult for me to come to the conclusion that the site is located where the council's own local policies and strategies contemplate more intense development. Further, the council's strategic approach is generally consistent with the general thrust of the policies in Melbourne 2030 that call for a more compact city.

42 Third, it would be fair to say that concerns about internal amenity were relatively limited to south facing balconies and some minor inconsistencies in the plans identified by Mr McGurn.

43 Ms Stupak criticised the positioning of the balconies facing out onto Keilor Road on the basis that they were to the south of the building and would be in shadow. I accept that south facing balconies would be subject to shadows. However, the proposed balconies are directly accessible from a living room area within the apartment to which they are appurtenant, they are of good useable proportions they provide for an outlook over Keilor Road.

44 On balance, I do not consider that the positioning of some of the balconies renders them unacceptable. It is not unacceptable or undesirable for apartments to have an outlook over the road that the property fronts onto. Indeed, this facilitates a degree of interaction or connection between the building and the street. On sites like this, with a north-south orientation, it is inevitable that there will be some south facing balconies and windows. Taken overall, I think the measures to provide reasonable solar access to the open spaces and the apartments themselves are reasonable.

45 Mr McGurn also identified a number of inconsistencies in the plans and other minor matters requiring attention to improve internal amenity. These included the repositioning of the entry to Unit 6, the correction of plans and the provision of a void over the central atrium area. In my view, the matters raised by Mr McGurn and the suggestions he made represent appropriate improvements and can easily be corrected by way of permit conditions.

46 I now turn to the key issues in this matter.

[40]

47 In considering these matters, it is relevant for the assessment to be informed by policy. The analysis set out earlier in these reasons has led me to the view that the outcome sought by the scheme in this location is not to keep the status quo; rather, more intense development and "change" is envisaged.

48 Having regard to this, it is my view that long standing buildings along Keilor Road do not necessarily set the benchmark as to what is contemplated by the current policy regime. It is easy to suggest that taller more intense development is different to what already exists and therefore represents an unacceptable departure from the established neighbourhood character. However, whether or not new development is "respectful" of its context needs to be informed by the thrust of the policies and strategies that apply. As noted in the first policy objective under the proposed Clause 22.13-2, new development needs to respond to its strategic context and location

49 It seems to me that newer development in this area is setting the benchmark as to the outcome envisaged by policy. In particular, I refer to the 4 storey retirement home which is under construction on the south side of Keilor Road and to the 4 storey apartment building which has been approved at 74 Keilor Road. Both of these developments are clearly taller and more intense than what exists in the immediate area. However, in my view, they reflect the implementation of the Planning Scheme's policies as they currently stand, particularly those at State level which call for higher densities near activity centres and fixed rail public transport as well as the local policies which call for higher density in locations like this.

50 As such, I have no difficulty accepting that, in principle, a 4 storey building fronting onto Keilor Road is acceptable given the policies that apply as well as the site's zoning and context. It is relevant to note that the building has been designed to step back its upper levels away from Keilor Road. As noted in the officer's report to the council[7], the uppermost level of the building is to be setback in accordance with standard G19 in the proposed Clause 22.13. This approach seeks to reduce the impact on the streetscape. Further, the contemporary design responds to the objectives of the "Residential Design Policy" given that its objectives specifically discourage architectural styles that copy or mimic those of the past.

51 Ms Stupak submitted that the zero setback to Keilor Road is inappropriate as it is inconsistent with that of buildings on adjacent sites. As I have already stated, I have not been persuaded that older development sets an appropriate benchmark in an area that is earmarked for change. Further, I note that the proposed policy at Clause 22.13, as adopted by the council, contemplates zero setbacks to Keilor Road as the site is within a Business zone[8].

52 Overall, I consider that the building would have an acceptable interface with Keilor Road in terms of its height, bulk and appearance and presents a satisfactory urban form to this part of the public realm.

53 The issues associated with the way the proposed development has its interface with the residential properties to the north is the more difficult issue as the boundary between the Business 2 Zone and the Residential 1 Zone is located in the middle.

54 In coming to term with whether the proposal presents an acceptable interface with the residential area to the north, it is appropriate that I first refer to some of the principles as set out in tribunal decisions relevant to the consideration of proposals like this.

55 In Keghlan Pty Ltd v Mornington Peninsula Shire Council [2000] VCAT 2538, the tribunal stated:

[45]

57 Has a reasonable balance been achieved in this case? I think that the proposal is close to achieving this.

58 The site has the advantage of a buffer created by the 3 metre wide rear laneway. Whilst I accept that this laneway cannot be landscaped, nonetheless it does provide a setback away from the residential properties to the north that cannot be intruded upon.

59 Further the proposed building has been designed to step back away from its rear boundary. The setbacks proposed are substantial and the building will recede well away from the residential properties to the north. I do not accept that the impact on the residential properties to he north will be the same as that depicted in the diagram presented by Mr Gore[9]. The diagram simply shows the building as one boxlike mass and does not take into account its articulation and, importantly, the stepping back away from the boundary.

60 I appreciate that the proposed development will result in a substantial change in the outlook from the backyards of the neighbouring properties to the north. However, I consider that given the policy context that applies to the subject site and its zoning, more intense development than what exists ought to be reasonably contemplated.

61 I consider that the proposed development has been designed in a manner that responds in an acceptable way to its interface with the residential area to the north. As noted by the Tribunal in Buckerfield, if the site did not have an interface to a residential zone it would be far more likely that a more box like approach would have been taken if neighbouring properties to the north were of a commercial/industrial nature. I also take into account that the site is not overly large or wide and that the uppermost level is well setback. Accordingly, the impact of the higher building elements would be viewed at a distance and would therefore not be unreasonable having regard to the site's context.

62 An issue was raised as to whether a landscape strip should be provided along the rear boundary to help soften the appearance of the building. Mr McGurn suggested that a more appropriate approach would be to incorporate landscaping into planter boxes stretching across the north facing balconies. He suggested that the planter boxes and landscaping within them would do 2 things; first they would act as a privacy screen to prevent direct views into the backyards of the properties to the north, and secondly, would provide for some vegetation to help soften the appearance of the rear elevation. This can be achieved by permit condition.

63 In relation to landscaping, I again refer to Member Keaney's decision in Buckerfield when he stated:

[49]

67 It would be fair to say that a matter of considerable concern to the objectors related to the potential for overlooking from the north facing balconies down into their backyards.

68 On this point, I note that the design provides for 1.7 metre high screens around her balconies to prevent direct views down into the backyards to the north. I accept that these screens would prevent unreasonable potential for overlooking.

69 In the discussion on the previous question, I referred to a modification suggested by Mr McGurn which would seen these screens incorporate planter boxes to provide landscaping along the building's northern elevation.

70 I accept that this is an acceptable alternative design solution that also provides satisfactory protection from overlooking. The planter boxes can be designed to have a width and height to prevent direct views down into the neighbouring backyards. The design should not be reliant on the plants to prevent views; rather this should be integral to the structure itself. Further, the structure itself needs to be designed to be integral to the building, not as an "add-on" that is capable of easy removal.

71 This change to the design of the screens can be implemented by permit condition.

Is satisfactory car parking provided?

72 Concerns were also raised about whether adequate car parking is to be provided. A total of 19 car spaces are to be provided, 14 of which are to be allocated to residents of the apartments, with the other 5 allocated to the office use.

73 In my view the overall parking to be provided on the land will meet the reasonable needs of residents and office staff.

74 The provision of 1 space per apartments meets the requirements for 1 and 2 bedroom dwellings set out in clause 55.03-11. Whilst the standard set out in that clause does not strictly apply as this is a 4-storey building, nonetheless, I accept Ms Dunstan's view it is a standard that is now commonly accepted as being appropriate in cases like this as opposed to the general 2 spaces per dwelling ratio set out at clause 52.06.

75 The provision of 5 spaces for the office use meets the requirement at clause 52.06 for office.

76 The shortfall in this case relates to the provision of parking for visitors. Based on the clause 55 standard, 3 spaces should be provided for residential visitors. Ms Dunstan's evidence was that the visitor demand could be met by either allowing some shared use of the office spaces, as the peak time for residential visitors would be out of normal business hours thus not coinciding with the peak demand of the office use; or alternatively, the demand could be met on-street. Ms Dunstan backed up her view that the visitor demand could be met on-street through observations made during the course of spot parking surveys.

77 There will be occasions when visitors to the office and apartments will need to park on-street; however, I would not expect that the peak demands would coincide. In my view, the visitor demand for the apartments is so low, that it can be accommodated on the street. Overall, the parking provision is satisfactory.

Would the proposal bring about unacceptable traffic impacts?

78 I firstly express my agreement with Ms Dunstan's view that the proposed development would generate relatively modest levels of additional traffic in the area. Keilor Road is a main road that carries about 13,000 vehicles per day. I would expect that the traffic generated by the proposal would not be noticeable and could be easily absorbed within this context. I do not share the objectors concerns that the traffic from the proposed development would spread to a noticeable extent into the residential side streets.

79 With respect to the VicRoad's condition that requires access to the site to and from Keilor Road being limited to "left-in left-out" only, I have difficulty accepting that this restriction is reasonable.

80 There will be times when carrying out a right hand turn into or out of the site will be difficult; however, there will be other times when these manoeuvres will not pose any great problems.

81 The difficulty I have with banning right turns is that it will encourage and increase the potential for other movements that I do not consider desirable. In particular, there is nothing to stop a person from continuing on along Keilor Road making a right hand turn into Service Street then a U-turn to return back to the subject site. Further, by banning right turns, it will encourage U- turns further west along Keilor Road. I would not think that this is desirable. I will not include the condition on the permit.

82 I am also satisfied that satisfactory sightlines out of the car park are available. The installation of a mirror at the car park entry, as suggested by Ms Dunstan, would also be helpful.

At a glance

Court

Decision date

Source

Judgment (54 paragraphs)

Trisand Pty Ltd v Moonee Valley CC [2005] VCAT 612 (1 April 2005)

Parties

Legislation Cited (1)