Walters v Whitehorse CC [2005] VCAT 1428

Walters v Whitehorse CC [2005] VCAT 1428 - VCAT 2005 case summary — Zoe

[25]

2 The subject site is located on the west side of Spring Street close to the southern end of that no-through road. It has an area of around 595 square metres with a frontage to Spring Street of 15.24 metres. To its north, the subject land has frontage to a lane that is available for vehicles to its eastern end and is closed to vehicle traffic around half-way down the length of the lane. The subject land is relatively flat and is occupied by a single storey dwelling and a garage. Time restricted on-street parking is permitted adjacent to the site's frontage.

3 To the immediate north, at No. 12 Spring Street, are three double storey dwellings with the upper level contained in a high roof form. These units each have windows facing toward the lane and review site including living rooms and two also have a front door facing south. The primary open space is to the north. Ms Stubbs and Ms Spiropoulos are resident in two of these dwellings. No. 10 Spring Street is next to the north (Mr Schulz' residence) being a single storey dwelling. A medical centre and car parks then extend along the west side of Spring Street to the intersection with Arnold Street.

4 To the immediate south of the subject land is a single storey dwelling at No. 16 Spring Street and then another dwelling southwards at No. 18 Spring Street. I was advised that both lots have been purchased by TAFE that is adjacent to the south. A landscaped car park abuts the common boundary with No. 18 Spring Street and TAFE buildings are then to the south/east.

5 The east side of Spring Street is occupied by the Salvation Army and an open car park associated with that use. A permit application is current for the redevelopment of the car park. To the north of the Salvation Army land and extending to Arnold Street is the soon to be completed Epworth Eastern Hospital development at 5-6 levels plus basements.

6 To the rear of the review site are several dwellings fronting Wellington Road. They are Nos. 18, 22 and 26 Wellington Road as shown on the aerial photographs tendered at the Hearing (there being no Nos. 20 or 24 shown) although Mr and Mrs Walter refer to their address as No. 24. No. 22 (Mrs Varrelly's property) abuts the whole of the western boundary of the review site with private open space to the rear of the single storey dwelling. No. 18 Wellington Road is owned by Mr Wang and is diagonally to the south-west of the subject land. What appears to be a driveway on No. 18 (but might be No. 20) also runs into the western boundary of the subject land. No. 18 has private open space to the rear of the single storey dwelling. No. 24 Wellington Road abuts the north side of the lane, north-west of the review site. Other properties in Wellington Road are single storey detached houses or units. Further to the west are properties in Poplar Street including another part of the campus of the Box Hill TAFE. I understand that the lane abutting the review site is used as a walkway for students moving between different parts of the TAFE campus amongst other users.

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7 It is proposed to use and develop the land for student accommodation in a three level building plus basement. A total of 40 units with 42 bedrooms is proposed. Studios, one and two bedroom units are shown with the majority being studios or single bedroom. Communal spaces are on each level. The information before me focuses on residents being full-time tertiary students drawn from outside Australia without precluding other tertiary students. A lift and small kiosk for residents are proposed. A basement accessed from the lane abutting the northern boundary of the site would provide for 10 cars and 6 bicycles as well as storage and a communal laundry.

8 The building would be setback from Spring Street by 0.5 metre at ground level then increasing to 1.3 metres for the higher two levels. The minimum setback from the northern boundary would be 1.4 metres at ground level and then 1.6 metres at the next two levels including the angled balconies. The exception to those setbacks is at the eastern section of the building where a wider setback is allowed to accommodate vehicle movement (adjacent to the ground level garbage store enclosure and communal lounge). The setback from the western boundary would be 2.5 metres at ground level then ranging between 2.5 - 3.5 metres at the first floor level and 3.5 - 4.5 metres for the upper level. Narrower setbacks are provided to the southern boundary. Each unit would have an area of private open space.

9 The plans show screening to 1.7 metres for all west-facing windows, including those at ground level given the elevated floor level above the natural surface.

10 The maximum height above ground level of the north elevation would be around 11 metres while the maximum overall height of the building would be close to 13 metres taking into account the roof access enclosure. Each façade is treated differently with a range of materials and finishes as set out in the statements of evidence of Mr McGauran and Mr Hayball. No mechanical ventilation is required for the basement with partly ivy-clad grilles facing into the laneway. The west elevation includes similar ivy planting over steel mesh in addition to glazing and coloured panels.

11 Changes to the proposal are appended to the statement of evidence by Mr R McGauran dated June 2005. They seek to respond to the conditions contested by the permit applicant and show 7 bicycle spaces, 34 units with 39 bedrooms and 134.4 square metres of communal area across the three floor levels. Ms Stamkos explained at the Hearing that although the changes may not be specifically as proposed by the Council [the Council having sought the deletion of several units to create larger communal spaces through Condition 1(a)] the Council was satisfied that the intent of its conditions had been achieved through Mr McGauran's revisions. Further, consequential changes to the southern elevation had resulted in a design outcome that the Council considered satisfied its proposed Condition 1(c). Ms Stamkos also stated that the Council's request in Condition 1(d) for the deletion of a car space was no longer required again based on the Mr McGauran's plans that show modifications to the basement layout.

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31 One of the key concerns of local residents is the form and massing of the proposed building, including its 3-4 storey scale. It is necessary to consider the question of the building height, scale and mass with regard to the provisions of the Zone and strategic outcomes for this locality being pursued by the Council which I have set out above. They seek an intensive development outcome and, in principle, a development at the height proposed would seem to represent the type of outcome specifically desired by the policies and associated documents. The critical issue to me is the interface with existing dwellings, which I discuss next. Otherwise, I consider that the scale of the proposed building is acceptable when mindful of the large structures that form part of its immediate context, as I have referred to previously at paragraph 27.

32 The units to the north of the site, across the laneway, are two storey but the upper levels are contained within a roof form facing south unlike the northern elevations. Dwellings to the west in Wellington Road are single storey. Should the development be reduced in height to provide a more gradual transition to these elements? Usually the answer would be "yes" but in the physical and strategic context I have described I am unable to form the same view in relation to streetscape and neighbourhood character considerations.

33 Moreover, I give weight to the fact that although Clause 55 does not apply, it has been used as the assessment tool by the Council (possibly because the height of the basement above ground might not have been identified in the assessment process). The Council has found the proposal to be acceptable using these tighter numerical tests than the more general Guidelines for Higher Density Residential Development.

34 The western elevation complies with the rear setback standard at Clause 55.04-1 and there is an adequate area to allow for landscaping along the rear boundary. That carries weight although in a different context I would be concerned about the mass and inter-relationship. The northern setback does not comply with the same standard but the lane provides some separation. I have no issue with the southern setback given the abuttal to TAFE land holdings and the elevation is improved by the changes shown on a plan tendered by Mr McGauran, as referred to again later.

35 The front setback to Spring Street is less than dwellings to the north and less than the standard at Clause 55.03-1. However, I find there to be no real or significant impact in streetscape terms other than it sets up a degree of inconsistency with the east side of the street based on development occurring there that has some landscaped setbacks. That is not fatal and does not require modification as the lane is to the north and in time the land immediately to the south of the review site is likely to be developed in a way that can respond to the building on the review site. In addition, there would be a good active frontage provided to the street by the communal spaces at ground level. It is in relation to these setback and active street frontage issues, as well as height, that design guidelines for the Precinct as a whole would be helpful in providing guidance and certainty.

36 The architectural styling and palette of materials and finishes warrants comment. I think that the design and its styling would add visual interest to the area and provides a high standard and benchmark for other development that will follow. The different treatment of each façade avoids monotony, the suite of colours and materials is diverse but not radical and the use of ivy plating over steel mesh would provide an unusual and softening element. I find that the building is very well considered.

37 I am therefore satisfied in terms of character and streetscape considerations that the proposal at the height and scale proposed is acceptable. In my view, the more difficult matter is in terms of off-site amenity impacts which I go to next.

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38 Visual bulk is one of the most important amenity issues with residents and property owners to the south-west, west and north-west of the subject land all opposing the extent of built mass presented to their private open spaces and dwellings causing a dominating structure and loss of outlook.

39 As I have said, in a different context outside the Box Hill Activity Centre I would be likely to accept these submissions entirely. However, in the current case I am satisfied that an acceptable balance is achieved between allowing new development and accommodating existing residents. The proposal has stepped the three level form to the rear and meets the building envelope standard at Clause 55 along the western elevation although the third level would be seen from rear yards and dwellings at Nos. 18, 22 and 24 Wellington Road. The outlook will be changed with a building introduced but the potential to plant along the western site boundary would assist to soften the mass albeit not conceal it. I also reach the view that the presentation to the units at No. 12 Spring Street is acceptable where the transition is less albeit there would be an obvious impact. The lane provides a degree of separation and the open spaces to these adjacent units appear to be to the north so that the units to an extent face away from the review site. In relation to both the western and northern elevations, the outcome is acceptable in the context of change that can reasonably be expected in this location.

40 There were also concerns about the potential for overlooking from the proposed development. The prospect of unreasonable overlooking from west-facing windows at all levels in the development is precluded by the use of highlight windows. There might be some opportunity for oblique views from north or south facing windows and balconies, but the distances would be well beyond 9 metres if Clause 55 was applied and two eucalypt on No. 24 Wellington Road would assist with screening. Mr McGauran suggested that screening to the western end of the balconies to 0.07, 1.08 and 2.08 (the room numbers being based on his revised plans) could be added. I think that would be desirable to provide some comfort to residents and it is accepted on the basis that it would not compromise the amenity of those spaces. It can be dealt with by a permit condition.

41 Windows in the units at No. 12 Spring Street would be approximately 8.5 metres from windows in the northern elevation of the proposed development. While I appreciate concerns the raised by Ms Stubbs and Ms Spiropolous, the windows to which they refer face a laneway that is said to be well used by pedestrians as well as a limited number of vehicles. On these bases, I do not find that the north-facing windows should be screened.

42 Overshadowing was a further issue raised by adjacent residents to the west. The proposal would increase shadowing to the properties to the immediate west and south-west but the shadows are within the limits specified at Clause 55.04-5 should it be applied.

43 Noise concerns relate to student activities in the building, on terraces and using the communal spaces as well as associated with plant and equipment. On the evidence and information before me, a student housing development of this type is relatively quiet and does not result in late night parties and activities that some might recall from their own days as a student.

44 The advantage of this proposal is that it would be bound by tight permit conditions through a Site Management Plan, general nuisance/amenity conditions, an on-site manager/lead tenant and the establishment of a 24 hour hotline for complaints direct to management. These are not the type of restrictions that apply if a shared student house sets up in a residential street and it should give comfort to existing residents that this type of student housing can be a compatible neighbour.

45 Air conditioning units would need to be placed on balconies but they could be accommodated behind the mesh balustrades that would substantially conceal them dependent on the degree of transparency of the mesh. Mr McGauran stated that the air conditioning units associated with upper-most units would be placed on the roof and that can readily be achieved but I am not persuaded that it is essential if the mesh is designed to provide a reasonable acoustic and visual screen. I will require the details of the balustrade transparency to be provided to the Council by way of a permit condition.

46 There might be noise and some minor headlight glare to the front units at No. 12 Spring Street as a result of the position of the basement entry. I do not find that a reason to direct changes to the plans and note that residents would be able to erect a fence along the common boundary with the lane should they desire (noting that would also require changes to the garden beds).

47 In relation to the above discussion relating to off-site amenity impacts, I have not addressed the southern elevation and its relationship to the land to the south. As the two lots to the south of the review site are now owned by TAFE, I accept the Council's position that the proposal produces an acceptable interface with the TAFE land mindful that the dwellings are to be demolished and are expected to be replaced with car parking.

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48 Local residents raised issues about the adequacy of car parking for the proposed development referring to the prospect of overflow parking. I do not intend addressing this matter in detail as much is covered through the evidence of Mrs Partenio and Mr Wilson. The current experience is that student housing focused on international students does not have high levels of car ownership and this has been accepted frequently by the Tribunal. The proposal would provide 10 car spaces and additional bicycle parking. I am satisfied on the evidence, and mindful of the site's excellent access to public transport and services, that the proposal provides adequate on-site parking at a design rate of 0.2 spaces/bed. There may be domestic students residing at the facility and the statistics are less clear in relation to a development with very high proportion of local or regional students.

49 However, Mrs Partenio's report refers to three developments with only 50% of international students with an average I calculate of 0.26 vehicles per person. I am persuaded that the aim of this project is to support international students and that the provision of on-site parking is adequate.

50 Moreover, Condition 4(x) requires a provision in a Site Management Plan for the number of residents owning a vehicle to be limited to 9 (10 based on the revised plans). Mr Wilson's evidence on this point was adopted by Mr Pitt, that is there is no issue adding a sentence to part (x) that in the event that the number of residents with vehicles accommodated on the land exceeds the 10 spaces provided, advice must be given by the management entity to prospective residents that no on-site car space can be provided. Ms Stamkos was content with this suggestion.

51 The layout of the basement is tight as noted in some submissions but I am persuaded that it is functional for a small car park based on Mrs Partenio's evidence. I think the introduction of a convex mirror opposite the bottom of the ramp would assist a car departing seeing another driving inwards. That can be included as a condition.

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

Walters v Whitehorse CC [2005] VCAT 1428 (15 July 2005)

Parties

Legislation Cited (1)