1. The decision of the Responsible Authority is affirmed.
2. In permit application PP12/01069 no permit is granted.

Construction of 21 dwellings in a three storey building over a basement on two lots and alteration of access to a Road Zone Category 1.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01-4 - construct two or more dwellings on a lot

Clause 52.29 - create or alter access to a road in a Road Zone Category 1

Clauses 11, 15, 16, 18, 21.05, 21.07, 22.07, 52.06, 55 and 65.

The subject site is located on the southern side of High Street, approximately 50m from the commencement of High Street Road and 300m from Warrigal Road to the east. The total site area is 1449m². A 1.83m wide easement for drainage, sewerage and gas runs along the southern boundary of both lots. The site has a moderate fall from the north-east to the south west of approximately 1.5m. No 322 High Street is not fenced. A timber paling fence approximately 2m high is located along the frontage of 324 High Street. Each of the lots currently contain dwellings with hipped tiled roofs. They are setback a minimum of 8.34m and 7.55m respectively from High Street. Each dwelling is accessed by a single width crossover. The site is devoid of significant vegetation.

To the west of the site is a recently constructed two double storey townhouses at 320 High Street.

To the east a single storey dwelling at 326 High Street Road.

To the south two properties adjoin the site (2 and 3 Mustang Court). Each is developed with a single storey dwelling with a rear yard orientated toward the review site. The property at 3 Mustang Court also contains a swimming pool positioned close to the review site.[1]

An inspection of the subject sites and adjoining properties was undertaken on 17 December 2013.

1. The Responsible Authority refused the Applicant's application to construct 21 dwellings in a three storey building with basement over two lots at 322 - 324 High Street, Ashburton on 30 April 2013.
2. Following the lodgement of an application for review the Applicant circulated amended plans to all parties. These plans prepared by Stoll Long Architecture[3] are the plans now substituted as the plans the subject of the permit application and application for review.
3. As a result of the amended plans the Responsible Authority has revised its grounds of refusal. The grounds now relied upon relate to neighbourhood character, visual bulk and amenity impacts to adjoining properties, insufficient landscaping opportunities, and the location of private open space to the south of the building.
4. The adjoining neighbours at 320 High Street, 326 High Street and 3 Mustang Court, as well as the owner of 16 Liberator Street, all lodged statements of grounds with the Tribunal supporting the Responsible Authority's decision. The issues raised by the adjoining neighbours relate to the impact of visual bulk on their amenity, overlooking, noise, loss of sunlight and by the nearby neighbour the impact from traffic arising from the new development.
5. The proposal is to construct a three storey residential building containing 21 dwellings over a basement which will contain 28 car parking spaces (including four for visitors), a bin storage area, plant and storage cages. At ground level the proposal is to consist of 9 two bedroom dwellings, at the first level 2 one bedroom, 5 two bedroom and 1 three bedroom dwellings, at the second level 2 two bedroom and 3 three bedroom dwellings. Each of the one and two bedroom dwellings is to have one car space with the three bedroom dwellings having two car spaces. One crossover is to be provided at the western boundary for access to the basement car park. Pedestrian access is from a common entry lobby at the centre of the site, although dwelling G.03 will have separate access from High Street and dwellings G.01 and G.02 will be provided with secondary access from the common entry pathway within the front setback.
6. The maximum height of the building is to be 9.94m with a minimum front setback of 7.59m and a site coverage of 57.7% increasing to 59.6% when first level floor overhangs and balconies are included. A 2m high part brickwork, part rendered front fence is proposed along part of the front boundary. The fence is to be setback a minimum of 1.8m from High Street with some sections setback more than 3m.
7. The building is to be finished with face brickwork, render, cement sheet cladding and 'alucobond' cladding. The roof form is to be part parapet, part skillion and part pitched roof.
8. The issues raised in this application can be summarised as follows:
   • Will the proposed building fit within the neighbourhood context?
   • Will the proposed building have an unreasonable impact on the amenity of the adjoining properties?
   • Can sufficient landscaping be accommodated on the site?
   • Is the provision of south facing private open space reasonable?

1. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to affirm the decision of the Responsible Authority and determine no permit is to be granted. My reasons follow.

Will the proposed building fit within the neighbourhood context?

1. The Responsible Authority was critical of the built form of the proposed development which extends over the two lots and whilst setback in the centre of the building does not provide for sufficient separation when viewed from High Street. The Responsible Authority submitted the built form should be 'broken down into two separate elements by the provision of a substantial central recess in the buildings façade in order to respond to and respect the width of dwellings along High Street.'
2. The Responsible Authority submitted there is no other three storey form, or width of built form within this section of High Street. Whilst the building height complies with Standard B8 for a slope, this height, along with the width of the building, is considered excessive.
3. In relation to neighbourhood character the reference document within the planning scheme is the 'Residential Urban Character Study 1996'. Under this study the site is located within Area 157. Whilst an updated Neighbourhood Character Study[4] has been done this has not as yet been incorporated into the planning scheme. In the 2012 study the site is within Precinct 67. The area contains generally single storey dwellings built around the 1940s being part of a former housing commission estate. There does not appear to be any great difference with the description of the area in these two studies, although the latter does recognise the more recent double storey dwellings and 1 and 2 storey multi-unit developments. It is evident that the area particularly along this section of High Street is undergoing change with a number of the older dwellings, similar to what currently exists on the subject sites, being redeveloped into double storey multi unit developments.
4. To the west of the subject site is the recently constructed double storey town houses at 320 High Street. Although not constructed over two lots these two dwellings are constructed with minimal setbacks to side boundaries and whilst setback approximately 9m from High Street a prominent feature is the garages for both dwellings with a large area of hardstand at the front of the site and minimal landscaping. To the east of the site there is also two contemporary double storey dwellings.
5. I consider the site located in close proximity to the Ashwood Neighbourhood Activity Centre, approximately 200m to the east, and to the Ashburton Activity Centre, approximately 800m to the west, to be an ideal location for medium density development. The Ashwood Activity Centre is on the border with the Municipality of Monash so that on the eastern side of Warrigal Road there is additional shops and restaurants as well as a full line supermarket on the corner of High Street Road and Warrigal Road. The site is in close proximity to public transport with a bus route running along the frontage of the site and the Ashburton and Alamein train stations located approximately 800m and 1.2km respectively to the north west and south west. The area is also well serviced by public open space areas including Warner Reserve, Ashburton Park and Gardiners Creek.
6. The overall height of the building at 9.94m complies with the requirements of Standard B 7 clause 55.03-2 for sloping sites. Whilst I acknowledge that there is no other three storey built form in close proximity to the site the third level is well setback from all boundaries. The appropriateness of a third level is not in my view whether there are any other three level buildings nearby, but whether in the context of the site the third level does not result in a dominating built form that has impacts on the adjoining properties. The third level is recessed from the levels below with setbacks to the rear and sides of 6 to 7 metres and 10 to 13 metres at the front. The setback of this level particularly from the rear and sides is in my view sufficient to ensure that the built form will not be dominant when viewed from the abutting properties. This level will only be viewed from the wider context of opposite the site in High Street, as well as from the rear, at the entry to Mustang Court. At such distances the third level will not dominate.
7. I would agree with the Responsible Authority's view that the building across the two sites results in a dominating built form that should be tempered by a distinguishable separation to the High Street frontage, as well as to the properties to the rear. At present there is an element of the centre of the building where the pedestrian entry is provided that is setback approximately 12 metres and has a width of approximately 3.5 metres, although at the ground level this area has an overhead element creating a porch which appears to extend beyond the first level balcony of dwelling 1.01. As the Responsible Authority noted, the two first floor balconies of dwellings 1.01 and 1.02 cantilever over the recesses of the ground floor and these balconies are covered by the balconies for dwellings 2.01 and 2.02 above which results in any of the ground level recesses being indistinguishable. I agree with the Responsible Authority that when viewed from the opposite side of High Street this separation will be indistinguishable from the other elements of the building and will present as a consistent built form across the front of the site.
8. To achieve a separation that is clearly distinguishable and pays regard to the construction over two lots, as well as the rhythm and spacing between buildings along High Street, this central area should be at least a width of 5 metres or more with a setback to the foyer and lift area and such a setback should be evident at the ground and first floor levels, that is no cantilevering of balconies over the recesses below.
9. The Responsible Authority referred to plans for a recently approved development nearby at 313 - 315 High Street which exhibits a distinguishable separation of the built form when viewed from High Street so that the proposed development over the two lots appears as two separate buildings with a well setback central connection this allows for the building to be read in the context of the streetscape as two buildings on adjoining lots.
10. The built form when viewed from the rear and particularly from the rear private open space of 3 Mustang Court would also benefit from a separation in the built form to break up the extent of the building over the two lots. As proposed the building extends at ground level for approximately 33 metres and at first floor level approximately 31 metres across the 39.62 metre rear boundary of the two lots. The common boundary with 3 Mustang Court is approximately 25 metres. The area between bedroom 2 of G.07, G.06, 1.06 and 1.05 could be the location for the visual break of the built form, provided in my view, there is a setback to the building of at least 7 metres, with no balconies to intrude into the recess area. At present the distance between bedroom 2 of the dwellings is approximately 8 metres, such width of a break in built form, as well as a reasonable setback, would provide for a significant visual break when viewing the building from the rear private open space of 3 Mustang Court.

Will the proposed building have an unreasonable impact on the amenity of the adjoining properties?

1. 324 High Street has a current Planning Permit PP11/00453 issued on 19 September 2012. The permit allows for the construction of a double storey building containing seven (7) dwellings and a basement car park in accordance with endorsed plans. The permit was issued following an application for review to the Tribunal and a consent order between the parties.
2. I make the observation in relation to this existing permit that whilst the building is double storey and situated on one of the two lots being considered, in terms of built form it sits on a basement car park, has a front setback of 8.64m to the building, a rear setback of 3.02m to the common boundary with 3 Mustang Court and side setbacks of approximately 2m. Not dissimilar to the current proposal this presents with skillion roof forms, as well as hipped and parapet roof forms.
3. What is different to the current proposal is that the proposed seven dwellings sit over the two levels which allows for private open space of the two dwellings at the rear to have their balcony private open space facing either to the east or to the west rather than the south. Hence there is no impact from overlooking or perceived overlooking to the property at 3 Mustang Court. The discussion above regarding a central area in the built form at the rear to be setback from the rear boundary could allow for a reconfiguration of the rear dwellings at ground and first floor level to accommodate eastern and western facing balconies and private open space areas rather than south facing which in my view would decrease the perception of overlooking into the rear private open space areas of 3 Mustang Court. Although this could have an impact on the adjoining properties at 320 and 326 High Street with sufficient setbacks to balconies and appropriate screening any potential overlooking could be addressed.
4. The recently constructed dwelling to the west of the subject site at 320 High Street has two deck areas of private open space as well as an at ground level area to the rear of this dwelling. Of concern to the residents of this dwelling is the potential impact the proposed development will have on these areas of private open space from overlooking, as well as potential overlooking to two upper level bedrooms which have windows facing east towards the subject site.
5. Both decks are raised and an additional section of trellis has been placed along the common boundary fence. In the location of the deck area to the east the proposed building is to be setback 3.8 metres to a bedroom at ground level. Whilst there are trees planted along the boundary of the subject site that screen to a certain extent this deck area these will be removed but there is a proposal for landscaping along the boundary which in my view would address any issues of potential overlooking from the ground level.
6. At the first floor level two balconies are located on the western elevation. The balcony for dwelling 1.08 extends out from the building and results in a setback from the common boundary of 2.4 metres. The balcony is proposed to have a 1.7 metre high translucent glass screen around it which accords with the provisions of clause 55. 04 Standard B 22 and in my view will prevent overlooking from this balcony down to the east facing deck area of 320 High Street. I consider however that the balcony should be setback at least 3 metres rather than the proposed 2.4 metres from the common boundary with 320 High Street to ensure there is a reasonable separation between these two areas of private open space and no unreasonable amenity impacts from the use of either of these areas given they both are accessed from Living rooms.
7. Similar to the balcony for dwelling 1.08 there is a balcony extending from dwelling 1.07 which is also setback 2.4 metres from the common boundary with 320 High Street and runs along the western elevation at first floor level. The southern portion of this balcony is located opposite the rear deck area of 320 High Street. As noted above this deck sits approximately 0.5 metres above ground level. The balcony is to be provided with a 1.7 metre high translucent screen which accords with the provisions of Standard B22 and will prevent any downward views into the deck area and private open space area at the rear of 320 High Street.
8. An inevitable consequence of setting the balconies back from the common boundary is also the setting back of the western elevation of the first floor building in the order of at least 4 to 4.5 metres. This would ensure there is a reduction in the visual domination of the building to the adjoining property to the west.
9. Two upper level habitable room windows are located at 320 High Street opposite the balcony of dwelling 1.07. These are not externally screened but do have internal blinds. Both rooms are bedrooms, although one is presently used as a study. The distance between the balcony of dwelling 1.07 and these two windows is 9 metres to the rear window and approximately 7.5 metres to the other window. This separation is considered reasonable with any direct views from the balcony to these windows likely to be on the same level resulting in no downward overlooking into these bedrooms. I do not therefore consider that any increase in the height of the screening around the balcony is warranted. This balcony could however be setback from the common boundary at least 3 metres to provide a reasonable separation between the areas of open space of the two properties, with as stated above the first floor building also setback further.
10. Two terrace balconies one for dwelling 2.01 and one for dwelling 2.04 are located at the second level on the western elevation. Both these balconies are proposed to have 1.7 metre high fixed aluminium louvre screening and are set back approximately 6 metres from the common boundary with 320 High Street. It is my view that given the separation distance and the use of screening this will address any issues of overlooking into the private open space areas of 320 High Street, as well as any potential for overlooking into the upper level bedroom windows at 320 High Street.
11. Any potential overlooking into the rear private open space of 3 Mustang Court from the terrace of dwelling 2.04 and 2.03 is also addressed by the use of the 1.7 metre high louvre screening as well as the separation distance from the common boundary with 3 Mustang Court which is at least 8 metres.
12. My comments above in relation to the location and screening of the balconies at the first and second levels and the setting back of the building also applies to the relationship of the balconies and the eastern elevation of the first floor building to 326 High Street. In the context of this neighbourhood it is not necessary to have buildings setback a minimum distance from adjoining properties, rather it is preferable that there is a clear separation that can be read in the streetscape.
13. Whilst Ms McMicking expressed the view that the building should be setback further than 3 metres from the rear boundary, I consider with a visible break in the built form central to the site there is no need for an additional setback over and above the 3 metres at ground level, provided the first floor level is setback further than the ground level. I note the existing permit for 324 High Street has a setback to the southern boundary ranging between 3 to 4.5 metres with the section of the building directly opposite the private open space of 3 Mustang Court being setback 3 metres.
14. Overshadowing to 3 Mustang Court does not occur between 9 am and 3pm at the equinox. I acknowledge that there will be some additional shadowing to the rear private open space of 3 Mustang Court during winter but I am unable to conclude this is unreasonable.
15. Additional overshadowing will occur to the eastern deck and the rear of 320 High Street at 9 am at the equinox with the majority of this additional shadow clearing the rear private open space area and a small portion of the eastern deck remaining in shadow at 10 am. This shadow will no longer be impacting on both these areas of 320 High Street by 11am.
16. A small section along the fence line of 326 High Street will be shadowed from 3pm. This additional shadow however does not extend over the majority of the rear private open space area.

Can sufficient landscaping be accommodated on the site?

1. Despite the Responsible Authority suggesting that landscaping opportunities for canopy trees and other planting around the proposed building is constrained, I accept sufficient landscaping, including canopy trees can be provided, as demonstrated by the landscape plan prepared by John Patrick.
2. Although the front setback is proposed to include the driveway along the western boundary, a disabled access ramp, pedestrian ramp and bicycle parking spaces the plan prepared by Mr Patrick shows three canopy trees and large shrubs within the front setback as well as low planting. The plan also provides for Chanticleer Pears to be planted along the rear and part of the eastern and western side boundaries. These trees can grow at maturity to a height of 11 metres and a width of 6 metres which even if their full mature height is not obtained would provide for a reasonable extent of screening along these boundaries. There could be some impact on the private open space areas of the ground level dwellings to the south, however if there was as suggested above, a significant break in the built form and a reorientating of private open space away from the south the extent of planting proposed by Mr Patrick could be retained. The suggested setbacks to the balconies at level 1 on the eastern and western elevations could also assist in accommodating the landscaping.
3. I would agree with Mr Negri that the height of the front fence could be reduced to 1.5 metres rather than the proposed 2 metres, even though the site is located on a busy road.
4. The subject sites are relatively devoid of significant vegetation and to this extent the proposed landscaping would make a valuable contribution. The owners of 3 Mustang Court have already planted trees along the common northern boundary particularly in the location of their swimming pool and combined with this planting it is likely that the proposed landscaping would provide a reasonably green buffer to their private open space.
5. Ms McMicking expressed concern that the use of Chanticleer Pears along the southern boundary would result in the built form being visible during winter, given these trees are deciduous. Mr Patrick indicated that an evergreen species could be provided in a section along the southern boundary.

Is the provision of south facing private open space reasonable?

1. I consider that the building could be redesigned to ensure that further residents of the proposed development were provided with adequate amenity in that there would be no south facing only private open space areas.
2. It is not necessary given the size of the combined lots to have 4 of the proposed 21 dwellings with only south facing private open space. In this location and with the size of the lots a design can be facilitated that does not result in such an impact on the amenity of any future residents.

Do any other matters warrant rejection of the proposal?

1. I have no issue with traffic and the provision of car spaces for the subject site. 28 car spaces are to be provided within the basement this allows for one car space for each of the one and two bedroom dwellings and two car spaces for the three bedroom dwellings. This accords with the provisions of clause 52.06 of the Boroondara Planning Scheme. 4 visitor car spaces are also to be provided which is considered sufficient.
2. As the site is located on an arterial road it was referred to Vic Roads. They raised no issue with the granting of a permit from a traffic perspective subject to the request for the imposition of conditions.
3. A report by the Traffix Group was tabled at the hearing, but the author of the report was not required to be called as a witness. The Responsible Authority raised no issues with regard to either the car parking or traffic.
4. As one of the resident objectors raised a concern regarding the likely impact of traffic in the surrounding streets, I make the following comments that traffic likely to be generated by the proposal would be minimal and could be adequately accommodated within the road network. Even if there is only a left in, left out restriction to the property, I do not consider that vehicles coming to or from the site will have a significant impact on the nearby residential streets, given the limited number of vehicle trips likely to occur per day which according to the Traffix report was in the order of 105 vehicle trips per day.

1. The site is an ideal location for medium density development given its close proximity to the Ashwood Neighbourhood Activity Centre and the Ashburton Activity Centre. It is in close proximity to public transport and well serviced by public open space and other community facilities.
2. Whilst the proposal provides for an increase in housing and housing diversity in an established urban area it is considered that the proposed development does not sit comfortably within the context of the neighbourhood and does not respond sufficiently to the rhythm and spacing of buildings along High Street.
3. A three storey building is not inappropriate in this location, but sufficient care should be taken to ensure that the built form will not be visually dominant, particularly when viewed from adjoining properties. It is considered that the upper third level is sufficiently setback to ensure it will not be a dominating element. It is however the relationship of the building at the first floor level that results in a visual impact on the adjoining properties due to insufficient setback of the built form along the eastern and western elevations
4. For the above reasons the decision of the Responsible Authority is affirmed. No permit is granted. .

[1] Extracts from the Council Officers Report dated 30 April 2013 and The Expert Witness Statement of Mr M Negri dated October 2013

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] TP1 Revision 0, TP2 Revision 3, TP03 Revision 6, TP04 Revision 5, TP05 Revision 5, TP06 Revision 5, TP07 Revision 4, TP08 Revision 4, TP09 Revision 3, TP10 Revision 3, TP11 Revision 4, TP12 Revision 3, TP13 Revision 3, TP14 Revision 3, TP15 Revision 3 and TP16 Revision 3

[4] Neighbourhood Character Precincts 2012