Construct alterations and additions to the existing building, including partial demolition, to provide for a three level building for use as offices and 8 dwellings and a reduction in car parking

Medium Neutral Citation [2003] VCAT 716

In permit application no. 1427/01, a permit is not granted and no permit is to issue.

In permit application no. 0749/2002, a permit is granted and is directed to be issued. The permit relates to the land at No. 66 - 68 Greville Street, Prahran. The permit will allow alterations and additions to the existing building, including partial demolition, to provide for its use as offices, one home office and 7 dwellings, including a reduction in car parking, in accordance with the endorsed plans and subject to the following conditions:

1) Before the use and development starts, amended plans to the satisfaction of the Responsible Authority 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by DWA Dal Wild Pty Ltd Plans Nos. 0-08 dated 2003 but modified to show:

a. Finished floor levels provided for all floors and all levels to AHD.

b. Conversion of one office to a home office associated with one apartment.

c. Conversion of the short term loading/delivery area to one (1) car space for use by the occupiers of a home office or dwelling.

d. Roof plan including location of all plant and equipment with baffling as required to the satisfaction of the Responsible Authority.

e. Location of air conditioning units, car parking vents if required, and any other plant and equipment with baffling as required to the to the satisfaction of the Responsible Authority.

f. Inward opening gates to the garbage storage area serving Apartments 1, 2, 7 & 8.

g. The balcony for Apartment 6 to have a minimum area of 8 square metres.

h. Provision of solid doors with small vent inserts for the garbage enclosure serving Apartments 1, 2, 7 & 8 to the satisfaction of the Responsible Authority.

i. Minimum 1.7 metre lower sill heights to the second floor south elevation windows.

j. Provision of a toilet, bin enclosure and staff amenity station for offices to the satisfaction of the Responsible Authority.

k. Entrances to the offices and all entrance lobbies to be constructed at a grade in accordance with the Disability Act provisions.

l. Provision of a bicycle rack in either the ground floor parking area or lobby for residents.

m. Provision of an overhead locker in the car parking area for each dwelling.

o. Deletion of the recessed entry to Office 1 or the inclusion of a secured entry at the street frontage to the satisfaction of the Responsible Authority.

p. Increase in size of the garbage store for Apartments 5 and 6 by 1.6 square metres per store.

q. A schedule of materials, finishes and colours for all elevations.

r. Relocation of the columns 750mm from the end of the car spaces.

s. Correction to the section (Grev-07) to accord with the floor plans.

t. Provision of an opening on the eastern side of the Greville Street vehicle entrance and provision of a 1 metre splay to Lobby 1 or installation of convex mirrors on both sides of the vehicle entrance to Greville Street.

u. Correction to the location and width of the existing footpath and all street assets. Plans must include dimensions of existing on-street car spaces and crossover details.

2) Prior to the commencement of the development, a Certificate of Environmental Audit or a Statement of Environmental Audit must be submitted to the Responsible Authority in accordance with Clause 45.03 of the Stonnington Planning Scheme.

3) Prior to the commencement of the development, the applicant must submit a Certificate (issued by a person accredited by the Sustainable Energy Authority Victoria) indicating that the development has achieved a minimum 4 star energy rating under the House Energy Rating Scheme.

4) The use or development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

5) The materials, colours, decoration and/or finishes to be applied to the exterior of the buildings or works as described on the drawings or schedules endorsed to accompany this permit shall not be altered without the consent of the Responsible Authority.

6) Before the use starts, areas set aside for parked vehicles and 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.

c. Surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority.

d. Drained and maintained to the satisfaction of the Responsible Authority.

e. Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

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

7) Any existing vehicular crossing made redundant by the building and works hereby permitted shall be broken out and re-instated as standard footpath and kerb and channel to the approval and to the satisfaction of the Responsible Authority and at the permit holder's cost.

8) The vehicular crossing shall be constructed to Council's standard vehicular crossing specifications.

9) Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

10) This permit will expire if one of the following circumstances applies:

a. The development is 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.

Mr R Rogalsky appeared on behalf of the Applicant for Review. He presented written and oral submissions.

Mr D Bowden appeared on behalf of the Responsible Authority. He presented written and oral submissions.

Ms R Wilson, solicitor, appeared on behalf of a large number of Respondent Objectors in both Applications for Review as set out in her submission. She presented written and oral submissions. Ms V Alstergren and Ms A Harris also made oral submissions and several other residents were also in attendance.

A number of plans, photographs and other documents were tendered to the Tribunal. All of the documentary material presented to the Tribunal is retained on file and all submissions have been taken into consideration.

The site and locality were inspected by the Tribunal subsequent to the Hearing, including the property at No. 47 Charles Street.

1. These are Applications under Section 79 of the Planning and Environment Act 1987 brought by Greville Street Pty Ltd against the failure of the City of Stonnington ("the Council") to determine permit application nos. 1427/01 and 0749/2002 within the prescribed time. Applications for Review were lodged by Mr Rogalsky on 16 April 2002 and 18 December 2002 respectively.

2. The Tribunal was advised that the Council had resolved to support the second permit application subject to conditions but opposed the first permit application.

3. These Applications were the subject of a Directions Hearing before Member Liston on 1 May 2003 wherein orders were made in relation to several matters. Those matters included the substitution of the plans in permit application no. 0749/2002 (Application for Review No. P3290/2002).

4. At the commencement of the proceedings, Mr Rogalsky sought leave to amend the name of the permit applicant and Applicant for Review in both Applications to "Willabee Pty Ltd" in place of "Greville Street Pty Ltd". There being no objection, the Tribunal granted leave to make the requested amendment to both Applications.

5. Mr Rogalsky also sought leave to amend the permit applications to make clear that they include partial demolition in the Heritage Overlay. There being no objection, the Tribunal granted leave to make the requested amendment to both Applications.

6. The review site is located on the south-west corner of Greville Street and Charles Street, west of the Prahran Railway Station. It has a frontage to Greville Street of 24.66 metres, a depth (or frontage to Charles Street) of 15.54 metres and a site area of 388 square metres. The site is presently occupied by a double storey brown brick office building that is vacant. It is built to all site boundaries with a splay to the street corner. Access to a loading bay is provided to the north-west of the site, off Greville Street. I was advised that several cars parked in that bay on some occasions when the offices were occupied.

7. There is a mature deciduous tree on the Charles Street frontage and a smaller tree towards the corner with Greville Street.

8. The site abuts a confectionary manufacturer to its west and then a two storey building. Sunrise Confectionary is located within a two storey brick building that, like the structure on the review site, is prominent in the streetscape. The adjacent Sunrise Confectionary building is higher than that on the review site, estimated to be by around 2 metres.

9. To the south of the site is a row of single storey terrace dwellings. I note that the site analysis does not accurately show the layout and size of the dwelling at No. 47 Charles Street or the dwelling to its south, at No. 45 Charles Street.

10. To the north of the site, on the north side of Greville Street, is a single storey music shop and the single storey form of the Trescothwick Aged Care Facility. There are single storey dwellings to the west of the shop.

11. To the east is the Prahran Railway Station and then shops and the Stonnington/Prahran Town Hall leading to Chapel Street.

12. The east side of Charles Street includes some large buildings, built to the street frontage, which appear to be used for non-residential purposes.

13. Greville Street is a collector road with parking restrictions. Charles Street is a local residential road also with parking restrictions. Traffic management measures are in place, eg. the roundabout at the intersection of Charles and Greville Streets.

14. Permit application no. 1427/01 (Application for Review No. P961/2002) seeks approval to use and develop the review site for 10 dwellings and 556 square metres of office. Four on-site car spaces are proposed, with access via the existing crossover associated with the loading bay off Greville Street. Car parking is provided at ground level with offices also at ground and first floor levels. Two residential levels are then proposed, with all units being bedsitters with balconied open space. Pedestrian access to the units is via Charles Street.

15. The proposal involves the re-use of part of the building fabric and an addition which is some 5.2 metres in height above the existing parapet. It is proposed to provide recessed balconies to the Greville Street façade at the upper two levels with the building constructed to Charles Street at all levels.

16. I refer to this as the "first proposal" for ease.

17. Based on the substituted plans, permit application no. 0749/2002 (Application for Review No. P3290/2002) seeks approval to use and develop the land for two offices (total 63 square metres) and 8 dwellings. Each unit is provided with two bedrooms with balconies facing Greville Street. Both offices face Charles Street. Two lobbies are proposed, both off Greville Street with one at the corner splay. One office has access via Charles Street. A total of 8 car spaces is proposed via a re-located crossover from Greville Street.

18. The height of the proposal is around 1.2 metres above the existing parapet. The existing building form is retained except that part of the existing first floor is removed on the Greville Street façade. The new section of the Greville Street façade is substantially glazed, with some block glass panels and louvred balustrades. The upper-most level is setback by 1.2 metres from the southern boundary wall and is set in slightly from Charles Street to allow sliding windows and planter boxes on the existing building parapet.

19. The conditions proposed by the Council would require the loading bay to be converted to a dedicated car space for one office. Among other things, the conditions require modifying the recessed entry spaces, providing bicycle and storage facilities, and varying some window sill heights.

20. Ms Wilson made a number of suggestions as to changes that could be made to this second proposal, including a 1.2 - 2 metre setback of the upper level from the Charles Street boundary and the southern boundary, modifications to Greville Street building presentation including the retention of the existing façade with punctuations for open space areas, and the re-positioning of the crossover to allow more on-street parking to be retained. These suggestions have all been taken into account by the Tribunal.

21. The subject site is zoned Mixed Use under the provisions of Clause 32.04 of the Stonnington Planning Scheme ("the Scheme"). The offices at ground level appear to have existing use rights. Both proposals appear to provide entries to the residential components that are more than 2 metres wide, and a permit is therefore required for the residential use. The provisions of Clause 55 must be considered in relation to the second Application (P3290/2002) in addition to the State and Local Planning Policy Frameworks. Clause 55 does not apply to the first Application (P961/2002) and instead Clause 19.03 is relevant.

22. An Environmental Audit Overlay applies to the land pursuant to Clause 45.03.

23. A Heritage Overlay applies to the land pursuant to Clause 43.01. The site is within Schedule HO126 (Greville Street Commercial Area).

24. Other relevant provisions are Clauses 14, 15, 16, 19, 21, 22.02 (Urban Design Policy), 22.04 (Heritage Policy), 22.05 (Residential Development in Commercial Areas), Clause 22.09 (Retail Centres Policy), Clause 22.13 (Parking) and Clause 65 (general decision guidelines).

25. I note that the review site and the factory to its west as well as the residences on the west side of Charles Street extending to Doon Street are within a Mixed Use Zone. That Zone also applies to land on the east side of Charles Street. The properties on the north side of Greville Street are within a Residential 1 Zone.

26. Melbourne 2030 has been considered by the Tribunal. Another division of the Tribunal in O'Connell Street Developments Pty Ltd v Yarra City Council [2003] VCAT 448 has recently considered the legal question as to the status of Melbourne 2030. I do not need to go to the Tribunal's reasons in detail. Suffice to say that I adopt its finding that Melbourne 2030 is an adopted strategic plan to which the Tribunal must have regard pursuant to Section 60 of the Planning and Environment Act 1987. The Tribunal must give greatest weight to the provisions of the Planning Scheme as it exists at the date of its decision and in giving weight to the policies in the Scheme must have regard to Melbourne 2030. It is important that a decision by the Tribunal does not undermine the policies of Melbourne 2030.

27. At the Hearing, the parties presented written and oral submissions and a number of photographs and other documents were tendered. Having considered the submissions, at the conclusion of the Hearing I announced my decision to direct that no permit issue in Application for Review No. P961/2002 and to direct that a permit issue in Application for Review No. P3290/2002 subject to conditions. I stated that there were a number of conditions requested by Respondent Objectors that I would further consider, assisted by a site inspection, before reaching a conclusion in Application No. P3290/2002.

28. The reasons below summarise the basis to my conclusion that the first Application (permit application no. 1427/01) should not be allowed. The reasons also address the second Application and set out the basis to the conditions I have directed be included on permit no. 0749/2002.

29. I record that I have examined the applicable planning policies and objectives of the Planning Scheme and do not recite the detailed submissions by all parties as the documentary material is retained on file.

30. The policy context for both Applications is the same (other than the application of Clause 55) and I briefly summarise the main points of relevance to my consideration of these proposals.

31. The subject site is in a mixed use area that is abuts a larger established residential precinct. It is very close to the Prahran Railway Station. The review site is also proximate to the Chapel Street activity centre, with Prahran/South Yarra identified as a principal activity centre in Melbourne 2030. Much of the wider area forms part of the same Heritage Overlay as the subject site with some variety in built form in the immediate vicinity of the subject site. I have set out the main Clauses of the Planning Scheme that are of relevance above.

32. The State and Local Planning Policy Frameworks and other Scheme provisions seek to encourage new development that is respectful of neighbourhood character and the heritage place (which is the Overlay area as a whole). Impacts on residential amenity are sought to be minimised. High quality urban design outcomes are sought that make a positive contribution to the built form.

33. Land use objectives relating to commercial and residential uses encourage housing choice and diversity and seek to maintain the viability of commercial centres. Residential use in association with commercial activities is supported particularly on the upper floors of buildings in commercial areas.

34. Parking policies seek to ensure that future increases in parking demand are met by increases in parking supply. Clause 22.13 sets out criteria to assist the consideration of a reduction in parking and, among other matters, includes a policy waiving up to three parking spaces in the renovation, recycling or upgrading of older building stock.

35. I find that a mixed use development involving two levels of office and two levels of dwellings is acceptable in terms of its land use components. However, I am not persuaded that the built form outcome is an acceptable response to either heritage or neighbourhood character considerations, or that adequate car parking is provided, or that residential amenity would not be unreasonably compromised.

36. While I have no issue with the provision of 10 small bedsitter units in principle, the spaces are tight. Moreover, the proposal provides for four car spaces for the office use (which is acceptable given none are formally available at present) but no on-site car spaces for any of the proposed dwellings. Although the site is well located to the railway station, retail centre and other services, I am not persuaded that waiving all parking for the residential component is acceptable.

37. The design would not sufficiently respect the values of the heritage precinct or neighbourhood. The existing building is prominent in the locale particularly when viewed from in Greville Street. The development would add 5.2 metres to its height. While the residential levels are recessed by the inclusion of terraces to Greville Street, the additional bulk would be evident. The presentation of bulk would be exacerbated in the Charles Street streetscape where no recession of the residential levels is proposed. Although the site is on a corner, and the setting includes low-scale and some higher elements, the additional building mass in the form proposed is unacceptable particularly given inadequate recession to the upper levels. The presence of street trees does not sufficiently mitigate.

38. The proposal would have an unreasonable impact on the amenity of adjacent residential properties. The additional 5.2 metres in height along the south elevation is only partially recessed as the stairwell abuts the boundary. There is already a considerable building mass that envelopes the rear and east side of No. 47 Charles Street. The additional building mass would be visible to the single storey residential properties further south adding to the considerable visual bulk already experienced by them. In addition, there would be increased overshadowing and a loss of daylight affecting a larger number of properties than is currently the case. While the amenity expectations of those residents must be fairly considered in the context of their Mixed Use zoning, I am not persuaded that a reasonable balance is achieved.

39. There are various design details that are of concern, such as the sense of address and entry, but I do not address those given my principal findings above.

40. Overall, there are several aspects of this proposal that are not acceptable and, when considered together, cause me to conclude that a permit should not issue.

41. When contrasted with the first proposal, this Application represents a revised and less intensive proposal for the site. It has one less floor level, a lesser number of dwellings, larger units, reduced office area and additional on-site parking. The architectural styling is also varied in part.

42. It is noteworthy that while some concerns were raised by Respondent Objectors about the built form and parking arrangements, and there is an underlying issue that a redevelopment at three storeys may set a precedent, generally there was support for the design when contrasted with the earlier first proposal. Similarly, the Council gave its support to this Application subject to a number of conditions relating primarily to design details.

43. I find that the land use mix represented by this proposal is acceptable. The office area could be said to be limited. However, an active frontage is retained to Charles Street. Although it could be argued that a more active frontage should be provided to Greville Street at ground level, the existing appearance would be enhanced when compared with the current form, for example, through the inclusion of additional and improved pedestrian entry spaces.

44. Car parking was a key concern raised by local residents, as discussed below. At the Hearing, I suggested that one office could be linked with a dwelling (eg. Apartment 4) to become a home office; with the result that there would be one space to each of seven units, one space for a home office and one space for the stand-alone office if the loading bay was deleted. That suggestion was not opposed by any party and in my view, assists to address some parking issues while adding another land use element that is appropriate in this Zone.

45. While Respondent Objectors generally accepted the building height as appropriate, they expressed concern about the lack of a setback of the upper level to Charles Street. They also considered that the façade treatment to Greville Street would be improved by the retention of part of the existing building façade. It was submitted by Ms Wilson that the existing building fabric could be retained and holes punched into the window apertures to create openings to the terraces. This, she said, would minimise change in the streetscape in the Heritage Overlay area while providing improved privacy for occupants of the units.

46. Overall, I find the height and form of the works to be acceptable both in terms of heritage values and broader neighbourhood character considerations. As already noted, the existing building is quite prominent in an area that includes some rows of single storey buildings as well as some taller residential and commercial forms.

47. The additional 1.2 metres in building height does not unreasonably challenge the setting of the site, particularly when taking into account the recessed form of the upper levels to Greville Street and the more interesting façade treatment when contrasted with current quite bland brown brick finish.

48. While local residents sought the retention of more of the Greville Street façade, I am not persuaded that there are reasons, such as any cultural or architectural significance associated with the building fabric, to require such an outcome. I find the proposed treatment to be acceptable, noting that it is one of many possibilities that could be a reasonable solution in a redevelopment on this site.

49. The Charles Street façade is less recessive, however, I am not persuaded to require modifications to it. The existing wall is fully utilised with the upper level setback by 1.2 metres from the south boundary. That setback is maintained at the south-east corner, providing a narrow transitional element to the single storey row of cottages to the south. The building forms on the east side of Charles Street are built to the street and substantial in scale. I find that in this context, the addition of 1.2 metres is reasonable in heritage and neighbourhood character terms, assisted by the proposed planter above and along the parapet to soften the form. The presence of a large street is a further mitigating element but one that is not necessary to rely upon. I am consequently not persuaded that a setback of 1.2 - 2 metres from the Charles Street frontage for the upper level, as sought by Respondent Objectors, is warranted.

50. There was some concern raised by the Council and Objectors about the recessed entry to Office 1 in terms of safety, rubbish and similar matters. Mr Rogalsky submitted that a gate could resolve those concerns while providing for a covered entry during office hours. I am prepared to leave this matter for resolution with the Council by way of a permit condition to enable design details to be worked through, ensuring that a secured arrangement is provided to the street abuttal.

51. There is a need to revise the gate arrangement to the garbage collection area to avoid doors swinging into the pedestrian realm. I accept Mr Rogalsky's suggestion that a sliding gate may be possible and the details can again be addressed by way of a permit condition.

52. The plans provide some details about materials and finishes and I am satisfied that these matters can be addressed by way of a permit condition that requires information be provided to the Council's satisfaction.

53. Local residents expressed concern about the increased height to the southern elevation and consequent impacts in terms of loss of daylight and sunlight, as well as increased visual bulk.

54. There is no doubt that the southern elevation of the existing building presents a very substantial mass to the dwellings to the south and that can be observed from Doon Street. However, the additional 1.2 metres proposed in this design is setback by 1.2 metres from the existing parapet of the southern wall and remains at a lower height than the abutting Sunrise Confectionary wall.

55. I am not persuaded that an additional setback of the southern elevation to the upper level, of say 0.5 - 1 metres, is warranted, for reasons relating to visual bulk or overshadowing. It is a further factor that the glazed upper level would present as a "lighter element" when contrasted with an extension in brick along this elevation.

56. The increase in overshadowing would be limited. When taking into account the existing shadowing and extensive vegetation to the rear of Nos. 45 and 47 Charles Street that already limit sunlight access, I do not find the degree of change to warrant an additional setback of the upper level along the southern elevation.

57. Having regard to the layout of the residence at No. 47 Charles Street, including its window positions, I am not persuaded that the daylight to that dwelling would be further compromised.

58. I am not persuaded that there is unreasonable potential for overlooking from windows in the upper level southern elevation however, perceptions of overlooking may well be experienced. I accept that the lower sill height should be raised to 1.7 metres to restrict opportunities further.

59. The appropriate siting of plant and equipment, including any venting for or plant associated with the car park, is a valid concern raised by local residents. This can be addressed by a permit condition requiring a roof plan and identifying the location of all plant and equipment with baffling as required by the Council.

60. One of the key concerns of Respondent Objectors related to car parking. Specifically, concerns were raised about the adequacy of on-site parking, the absence of visitor parking on-site and the loss of kerbside parking space. It was noted that the architectural drawings do not correctly show the kerb configuration adjacent to the subject site and, in reality, two on-site spaces would be lost. Parking was described as being at a premium, a circumstance that I accept.

61. The existing office building provides no formal on-site parking, although it was said that some cars may have parked in the loading area. A credit of 18 car spaces was said by Council to apply, although I accept that it is possible that the previous occupants of the building may not have caused that level of parking generation. I also understand that office hours differ to demands imposed by other uses.

62. The proposal provides for one on-site car space for each dwelling and a condition proposed by the Council would convert the loading bay to a car space for one office. I have referred previously to the suggestion that one office be converted to a home office associated with an apartment (eg. Apartment 4) so that all dwellings and offices would then have an on-site space. That was not opposed by any party.

63. No visitor parking is proposed. Clause 55 would require 2 spaces for 8 dwellings.

64. I accept that the re-location of the crossover would reduce on-street parking area. The Council officer's report acknowledges a loss of one space and the creation of a space that is below standard size but able to accommodate a small vehicle or motor bike(s). That is confirmed by the information tendered by Ms Wilson and my observations on-site.

65. Taking all of these matters into account, the proposal can provide one on-site car space for each occupancy and maintain one small on-street space. While I can well understand concerns by local residents that a loss of on-street parking is a concern, I am persuaded that the development caters adequately for its own needs without placing undue pressure on-street. In reaching that view, I give weight to the fact that there is no on-site parking provided at present, that the site is well located to public transport, and many facilities that are within walking distance.

66. I am consequently not persuaded that re-location of the crossover to save a kerbside parking space is necessary. That would alter the internal parking layout and require tandem arrangements that would be impractical given the number of occupancies.

67. Various matters relating to internal amenity were raised in submissions by Respondent Objectors and the Council, including garbage storage facilities for residents and office users, the internal floor to ceiling heights of dwellings, toilet facilities for offices, and the height of the balustrade to the upper level Greville Street terraces in terms of potential overlooking to open spaces/terraces below.

68. I have considered all of these elements and, as suggested by the parties, will require a number of matters to be addressed by way of permit condition. Generally, I am satisfied that the layout of the units is acceptable and that overlooking to a terrace that faces a public street is not cause for significant changes to the plans (such as the retention of more of the existing building fabric or higher balustrade forms).

69. In conclusion, I am not persuaded that the proposal included in Application for Review No. P961/2002 is acceptable, based on the excessive height and visual bulk within a Heritage Overlay and that would be presented to neighbouring dwellings, the inadequate provision of car parking, and internal amenity issues.

70. The revised proposal, as shown in the substituted plans in Application for Review No. P3290/2002, represents an acceptable mixed use proposal for the redevelopment of the subject site. It presents a more carefully considered and crafted solution that better meets the needs of the intended occupants and responds satisfactorily to amenity considerations and to its setting.

s Application for Review No. P961/2002 is not allowed and I will order that no permit issue.

s Application for Review No. P3290/2002 is allowed and I will order that a permit issue subject to conditions.