VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ......Abuts a Road Zone- Category 1 (High Street Road)...

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P1253/2017

PERMIT APPLICATION NO. TPA/46857

CATCHWORDS

Section 77 Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone,

Mixed-use development; Special Building Overlay; Flooding from drainage system; Building height,

scale and bulk; Neighbourhood Character; Amenity, Internal amenity

APPLICANT Pace Developments Pty Ltd

RESPONSIBLE AUTHORITY Monash City Council

REFERRAL AUTHORITY Melbourne Water, VicRoads, Public Transport

Victoria

RESPONDENTS Andrew Morris, Joyce Hall, Tat- Luen and

Julie Loke, Chi-Shiun Loke, Craig Larkin

SUBJECT LAND 554-558 High Street Road,

WHERE HELD Melbourne

BEFORE Megan Carew, Presiding Member

Lorina Nervegna, Member

HEARING TYPE Hearing

DATE OF HEARING 2-6 October 2017

DATE OF ORDER 30 November 2017

CITATION Pace Development Group Pty Ltd v Monash

CC [2017] VCAT 1812

ORDER

1 Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil

& Administrative Tribunal Act 1998, the permit application is amended by

substituting for the permit application plans, the following plans filed with

the Tribunal:

Prepared by: Cera Stribley Architects

Drawing numbers: VCAT Amended Plans TP100 11.11.16,

TP101 and TP401-402 Rev A 28.02.17,

TP102- TP124 and TP203-TP400 Rev B 15

August 2017, TP200-202 14.11.16

VCAT Reference No. P1253/2017 of 21

2 In application P1253/2017 the decision of the responsible authority is

affirmed.

3 In planning permit application TPA/46857 no permit is granted.

Megan Carew

Presiding Member

Lorina Nervegna

Member

APPEARANCES

For applicant Mr P Bisset, Solicitor, Minter Ellison Lawyers

He called the following witnesses:

Mr Henry Turnbull, Traffic Engineer,

Traffix Group

Mr Maugan Bastone, Town Planner, Urbis

Pty Ltd

Mr Mark Sheppard, Urban Design, David

Lock and Associates

Mr James Pearce, Architect, Fender

Katsalidis Architects

Mr Lindsay Richardson, Environmental

Engineer, Sustainable Development

Consultants Pty Ltd

For responsible authority Ms Adeline Lane, Solicitor, Maddocks

She called Ms Sandra Rigo, Town Planner,

Hansen Partnership to give evidence.

For referral authorities No appearance

For respondents Ms Edelene Loke appeared for Tat-Luen and

Julie Loke, Chi-Shiun Loke

Mr Craig Larkin and Ms Nicole Pensa

appeared for Mr Larkin

Mr Andrew Morris provided a written

statement but did not attend the hearing.


INFORMATION

Description of proposal A mixed use building from four to seven storeys

with a food and drink premises, convenience

shop and medical centre at ground level.

Nature of proceeding Application under section 79 of the Planning and

Environment Act 1987 – to review the failure to

grant a permit within the prescribed time.1

Planning scheme Monash Planning Scheme

Zone and overlays General Residential Zone- Schedule 2 [GRZ2]

Special Building Overlay (as to part) [SBO]

Abuts a Road Zone- Category 1 (High Street

Road)

Permit requirements Clause 32.08-1 Use of land for a take away food

premises, convenience shop and medical centre

in the GRZ2

Clause 32.08-6 Construction of two or more

dwellings on a lot in the GRZ2

Clause 44.05-1 Buildings and works in a SBO

Clause 52.06 Reduction in car parking

requirements.

Clause 52.07 Waiver of loading bay

requirements.

Clause 52.29 Creation or alteration of access to a

Road Zone- Category 1.

Relevant scheme policies and

provisions

Clauses 10, 11, 14, 15, 16, 18, 21, 22.01, 22.04,

22.13, 32.08, 44.05, 52.06, 52.07, 52.29, 52.34,

52.36, 65

1 Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to

make a decision is deemed to be a decision to refuse to make the decision.


Land description The site comprises two allotments that together

have frontage to High Street Road of 61.05m and

a total site area of 2619m2.

No. 554 High Street Road contains a former car

yard. This site abuts a Council car park on its

eastern and southern interfaces.

No. 558 High Street Road is a swim school. This

site abuts a plant nursery to the west (546-552

High Street Road) and a drainage reserve/ linear

park to the south.

Tribunal inspection We inspected the site and its environs following

the hearing including an inspection from the

property at 546-552 High Street Road.


REASONS2

WHAT IS THIS PROCEEDING ABOUT?

1 The permit applicant seeks to develop a four to eight storey building with

commercial uses at ground floor fronting High Street Road and dwellings

above and to the rear. The proposal is documented in the amended plans

that were substituted at the hearing (VCAT Amended Plans).

2 Council indicated that had it made a decision within the prescribed time that

it would have refused the application. Council submits that despite the

existing land use and location proximate to the Syndal Neighbourhood

Activity Centre that the review site and neighbouring properties are within a

General Residential Zone. Council says that the proposed built form is too

high, does not present a landscaped setback to High Street Road and is a

poor response to the neighbourhood character. The respondents in this

matter support the Council’s position.

3 A further set of plans was circulated to all parties prior to the hearing. This

set of plans is described as the “VCAT Alternative” plans dated 1

September 2017. These plans were not substituted but provided further

amendments resulting from the recommendations of the experts appearing

for the permit applicant including a reduction in the building height of the

tower element by one storey (seven storeys to the rear elevation) and a

reduction in the number of apartments to 80. We will refer to this set as the

“VCAT Alternative plans”. The permit applicant relies on the evidence of

its experts and accepts the recommendations in the VCAT Alternative plans

as an acceptable response to the site’s planning context.

4 We find that the key issues in this proceeding are whether the proposal:

Provides an acceptable built form outcome;

Responds to the potential flooding issues;

Provides acceptable internal amenity; and

Addresses traffic, car parking, waste and other relevant

considerations.

5 Having considered the State and Local Planning Policy Frameworks, the

purpose of the Zone, the decision guidelines of the relevant clauses of the

Monash Planning Scheme and the submissions of the parties, we have

determined to affirm the decision of the responsible authority. Our reasons

follow.

2 The submissions and evidence of the parties, any supporting exhibits given at the hearing and the

statements of grounds filed have all been considered in the determination of the proceeding. In

accordance with the practice of the Tribunal, not all of this material will be cited or referred to in

these reasons.


WHAT DOES THE CURRENT PLANNING SCHEME SAY?

Does the site form part of the Syndal Neighbourhood Activity Centre?

6 There was some debate at the hearing as to whether the review site formed

part of the Syndal Neighbourhood Activity Centre or whether it was located

proximate to or on the periphery of the centre.

7 The commercially zoned land within activity centre is developed on the east

side of Blackburn Road for a generally 1950s/60s shopping strip with

angled indented parking. On the northwest side of the intersection of

Blackburn Road and High Street Road is a further strip of retail frontages

(refer to Figure 1).

Figure 1: Location

8 On the west side of Blackburn Road the land was for many years industrial

land, but has been rezoned over time for a series of office developments

with landscaped frontages. This land was previously included within the

Business 2 Zone (now Commercial 1 Zone). This land is included within

the Design and Development Overlay- Schedule 1- Industrial and


Commercial Design and Development Area. This overlay seeks a 20m front

setback from Blackburn Road and 10.6m from High Street Road. The

objectives of the overlay seek to ensure that development, including front

setbacks, is in keeping with and contributes to the Garden City Character

as set out in the Municipal Strategic Statement.

9 On the south west corner of Blackburn and High Street Roads is a Chinese

restaurant, Council car park and the review site. On the south east corner is

a four storey church building which is also affected by the above Design

and Development Overlay- Schedule 1. We find that the existing site

context is not residential in nature.

10 Both planning experts agreed that the boundary of the activity centre was

not clearly defined within the planning scheme. Ms Rigo considered that

the land was on the edge of the activity centre because the framework plans

at Clauses 21.03 and 21.06 show the activity centre as a “circle” to the

south of the intersection of Blackburn Road and High Street Road. In

contrast it was the evidence of Mr Bastone that the existing land uses and

location opposite commercially zoned land on the north side of Blackburn

Road meant that it would be read “on the ground” as part of the activity

centre.

11 The Syndal Structure Plan 1996 is a reference document in the planning

scheme3. The review site is shown as within the boundary of this structure

plan. It is identified as “office/ commercial” along with the land on the west

side of Blackburn Road and on the south east corner of the intersection. As

set out above, these additional areas of land were rezoned over time for

commercial land use in accordance with the Structure Plan.

12 In addition, Council has adopted a Neighbourhood Character Review

(Planisphere 2015). This document clearly identifies the review site,

together with the nursery site and the timberyard opposite as part of the

Activity Centre consistent with the structure plan.

13 This structure plan is dated, but would in our view clearly include the

subject land within the activity centre. We also agree with Mr Bastone that

“on the ground” the site reads as part of the commercial area. We do not

agree with Ms Rigo that the indicative circles on the framework plans are

intended to define the activity centre.

14 However, we find that nothing really turns on this. Irrespective of the

activity centre boundaries we consider that this site is sufficiently proximate

to the centre for it to be suitable for redevelopment. Both State and Local

Planning Policy directs increased housing diversity to sites such as the

review site that are proximate to services and public transport.

3 It is significant that proposed Amendment C125 does not propose to delete reference to the Syndal

Structure Plan 1996.


What level of change is expected in this activity centre?

15 Council says that the level of change expected within and around the

Syndal Neighbourhood Activity Centre must be tempered by policy at

Clause 21.04 that directs higher scale redevelopment to the Glen Waverley

Principal and Oakleigh Major Activity Centres and medium density housing

to the Brandon Park, Clayton and Mount Waverly Major Activity Centres.

Both Ms Loke and Ms Rigo submitted that Syndal was a lower order of

activity centre.

16 While we accept that this activity centre is not one where substantial change

is envisaged under the local policy, it will still be subject to redevelopment,

as is occurring closer to the railway station at the southern end of the

activity centre. Council has also approved a four-storey mixed use

redevelopment (serviced apartments) opposite the review site at 613-615

High Street Road (January 2016).

17 The residential hinterland has seen some limited medium density

redevelopment such as the units in Lee and St Clair Streets. This

redevelopment has generally taken the form of single and double storey

townhouses. Given the inclusion of these areas as “Accessible Areas”

within the Housing Strategy, we also anticipate further change surrounding

the activity centre.

18 We consider that it is not a question of whether the site is suitable for

redevelopment but rather whether the design response is acceptable. Mr

Bastone in his evidence provided examples of similar height developments

in other activity centres. We consider this material unhelpful. The proposal

must respond to this site and its physical and strategic context. The question

of what constitutes an acceptable design response requires an assessment of

the built form having regard to the balance of policy for this location as we

have set out above, the zone and other planning scheme provisions and the

site’s physical context.

What does the planning scheme say?

19 The current zoning of the land is General Residential Zone- Schedule 2.

The purposes of the zone include:

To implement the State Planning Policy Framework and the

Local Planning Policy Framework, including the Municipal

Strategic Statement and local planning policies.

To encourage development that respects the neighbourhood

character of the area.

To encourage a diversity of housing types and housing growth

particularly in locations offering good access to services and

transport.

To allow educational, recreational, religious, community and a

limited range of other non-residential uses to serve local

community needs in appropriate locations.


20 It was the evidence of Ms Rigo that the proposal was generally “a well

resolved design”, but that felt that it was located within the wrong zone. She

submitted that this zone placed emphasis on a balance of housing diversity

and neighbourhood character. She explained that the Monash Planning

Scheme has a strong emphasis on creating a “Garden City character” across

the municipality, but particularly within its residential zones. She referred

to the Policy at Clause 22.01 includes the review site and surrounding

residential land within Residential Character Area Type C. Such areas are

to develop within a pleasant leafy framework of well-planted front gardens

and large canopy trees. In these areas:

Architecture, including new buildings and extensions, will, in the

majority of cases, be secondary in visual significance to the landscape

of the Character Type from the street. However, in neighbourhoods

that currently have a large proportion of two storey houses, the

architecture will gradually become more dominant, although it will

always be buffered from the street by a well planted front garden that

will ensure the soft leafy nature of the street will be perpetuated.

21 The evidence of Mr Bastone and Mr Sheppard was that the current zoning

was an “anomaly” based on the existing and historic land use and the most

recent strategic work of Council within the Monash Housing Strategy 2014.

22 The Housing Strategy is an adopted Council document and forms the basis

of proposed Amendment C125 to the Monash Planning Scheme4. The

Housing Strategy identified the review site as part of a larger area of

potential redevelopment around the Syndal Neighbourhood Activity Centre.

This area was identified as Category 2 “Accessible Areas”.

23 Despite the fact that the land was identified for potential redevelopment,

Amendment C125 as exhibited proposed to include the land within a “creek

abuttal” area and apply the Neighbourhood Residential Zone (along with

the land to the west of the commercial zone south of the site along the

drainage reserve).

24 At the Panel hearing, the Council’s position was that it accepted that it was

not appropriate to apply the Neighbourhood Residential Zone to this site,

alternatively proposing the General Residential Zone-Schedule 4. The Panel

agreed that the application of the NRZ was not appropriate as the land is

“adjacent to an overland flow path rather than a creek”. The panel

commented that5:

The PPRZ is a relatively narrow strip of land that ends in a dead‐end.

The abutting properties are intensely developed with multi‐dwelling

developments or commercial uses and a car park. The open space is

not of high‐quality and is unlikely to be substantially redeveloped or

enhanced. The interface does not warrant special management.

4 Member Nervegna was a member of the Panel appointed to hear submissions to Amendment

C125. This was declared at the commencement of the hearing and no party raised any objections. 5 Appendix 10 to the C125 Panel Report.


25 It recommended that:

While the precise boundaries of the Syndal Activity Centre are not yet

defined, due to its location and the nature of its development and use,

the site could be considered to form part of the Activity Centre. The

site has potential to be redeveloped for more intensive development

that supports the development and enhancement of the Syndal

Activity Centre. Subject to further strategic work to be undertaken as

part of the subsequent stages of implementation of the Housing

Strategy, the site may be suitable to be zoned RGZ, MUZ or C1Z.

Retaining the existing GRZ2 in the interim is appropriate.

26 We accept the submission of Mr Bisset that at the time that the Panel made

its recommendation, that there was no height limits within the General

Residential Zone.

27 Council adopted the amendment, and accepted the Panel recommendations.

For the review site it adopted a new General Residential Zone (combined

Schedules 3 and 4) rather than the GRZ2.

28 Amendment C125 is with the Minister for Planning for consideration,

however, Council advised that that there would be some delay because of

the implications of the broader changes to the residential zones

implemented as part of Amendment VC110 to all planning schemes. In this

context, we find that the weight to be placed on the Amendment must be

necessarily less, although we find that the Panel’s comments in respect to

the review site are informative.

29 In his evidence, Mr Bastone accepted that the usual process where there is

an identified zoning anomaly is to rezone the land. He agreed that a

Structure Plan would be a first step (consistent with the findings of the

Panel).

30 Council advised that the preparation of an updated Structure Plan for the

activity centre was “some years away”. We consider that this work would

certainly assist in clarifying the expected future development in the centre

and inform any change to the zoning of the land or other built form control.

However, we agree with Mr Bisset that it would not be appropriate for us to

defer a decision until such work is undertaken or to act as a planning

authority. We must apply the planning scheme as we find it and assess the

proposal against the provisions that currently apply.

31 We find that the mix of land uses proposed is supported by the planning

scheme in this location. Dwellings are “as-of-right” within the zone. The

uses on the ground level are also all permissible within a residential zone in

the context of the proximity of the review site on a main road and proximity

to the Activity Centre. Conditions of permit could address the management

of these land uses.

32 The building height of eight storeys (or seven as per the VCAT Alternative

Plans) before us is permissible under the planning scheme as it stands.

While there is now a height limit for residential development within the


General Residential Zone, this proposal has the benefit of the transitional

provisions which allows consideration of an alternative height. We do not

agree that development on this site should be limited to three storeys and

indeed even Council’s position was that a four to five storey proposal

would be acceptable.

33 There is in our view a tension between the neighbourhood character

objectives of the scheme and the ongoing future development within and

around the Activity Centre. The planning scheme and specifically the

objectives of the zone seek to balance the provision of a diversity of

housing types with neighbourhood character.

34 We find that given the site’s context, it would not be appropriate to apply

the preferred character outcome in Clause 22.01. This is particularly so

given that Council’s more recent Neighbourhood Character Review

specifically excludes the review site.

35 However, throughout the Monash Planning Scheme there is considerable

emphasis on the Garden City character that would apply even to the

industrial and commercial zones. We refer to the policy at Clause 22.03

which seeks that the “the Garden City Character be maintained and

enhanced by providing space in setback areas for appropriate landscaping

including the planting of semi mature canopy trees with spreading crowns”.

36 This is carried through in the Design and Development Overlay that applies

to the areas on the west side of Blackburn Road and the south east corner of

the intersection where a 20 metre setback to Blackburn Road and a 10.6

metre street setback to High Street Road is preferred. This overlay has

directed the form of development in these areas of the activity centre, but

there is no overlay applicable to this site.

37 We have endeavoured to balance these broader Garden City Character

objectives in our assessment of the built form below.

IS THE BUILT FORM ACCEPTABLE?

38 A building of the height and size proposed in this application will represent

a significant departure from the existing built form in this section of Syndal.

It is also a significant departure from the expected future development of

surrounding land if the current zoning remains. It is difficult in these

circumstances to balance the built form that exists with what may occur in

this activity centre in the future.

It the proposal acceptable in the High Street Road context?

39 Council submitted that while the proposed commercial land uses provided

an activated street frontage to High Street Road, this came at the expense of

the ability of the proposal to provide any landscaping to the frontage

consistent with the Garden City Character objectives. Council submitted

that given the zoning of the land, that on balance the activation of the street


frontage by commercial uses was not as important as contributing to the

Garden City Character.

40 Ms Rigo’s evidence was that the Monash Planning Scheme places

significant emphasis on the Garden City Character and that this proposal

does little to contribute to this theme. She considered that the proposal

should provide a setback to High Street Road.

41 The 1996 Structure Plan shows the provision of office/ commercial land use

with a significant landscaped setback to High Street Road. This is followed

through in the design and development overlay and policy (clause 22.03)

that applies to the south and east of the review site seek a setback to the

street frontage. This is similar to the church development on the south east

corner of High Street and Blackburn Roads.

42 The evidence of Mr Bastone and Mr Sheppard was that activation of the

street frontage is consistent with contemporary thinking and that a setback

to High Street Road would not provide the best use of the site. Mr Sheppard

considered that the setbacks in the structure plan and of the church and

office development reflects planning of the time.

43 The proposal will replace the existing at-grade car parks/ open display area

to the frontage and in our view provide a significant improvement to the

public realm. In the absence of any specific overlay or policy that seeks

significant setbacks to High Street Road, we are satisfied that the proposal

is acceptable.

44 We find that the street wall at three to four storeys is a height that reflects a

pedestrian scale for this main road and is responsive to the built form found

elsewhere in this activity centre. We consider that the manner in which the

development is broken up along its frontage and steps down to the western

end is a good design response.

45 All the experts agreed that the proposal was an acceptable architectural

response in terms of its composition, materials and finishes and the like. We

agree with Mr Pearce considered the proposed podium is generally a well-

resolved architectural response that will read in the round with a well-

expressed base that is articulated along the frontage to High Street Road.

46 However, Ms Loke questioned the materials, colour and finish of the base.

We agree that the proposed copper coloured material is not reflective of the

surrounding area, but this could be simply addressed through conditions.

47 The upper levels of the tower element as shown in the VCAT Alternative

Plans are stepped away from the frontage with a setback of 6.6 metres to the

upper level. The overall height would be perceived as 6 storeys. We

consider that the location and design of the tower element as perceived

from High Street Road is acceptable.


Is the proposal acceptable when viewed from the residential hinterland?

48 Council and Ms Loke submitted that the proposal provided limited

transition to the 1 and 2 storey residential hinterland. Ms Loke emphasised

the exposure of the built form to the streets behind by way of the

intervening Council car park. Mrs Hall’s property was located in St Clair

Crescent. She submits that the proposal will be visually overwhelming

particularly from her private open space and has concerns about

overlooking.

49 Mr Bastone accepted that the proposal will be prominent in the landscape.

However he considered that views to higher built form within an activity

centre context were not unreasonable.

50 The slope of this land means that the podium element is in fact higher at the

rear where it has interface to the drainage reserve and beyond to the

residential hinterland. While these elevations maintain the three-storey

podium, the distinction between the fourth and fifth levels present at the

frontage is removed and the tower element becomes higher and more

prominent (refer to Figure 2)

Figure 2 Proposal from St Clair Crescent

51 While we accept that this site has characteristics that may allow

consideration of an alternative design response including additional height,

we agree with Council and the respondents that the tower element is too tall

when viewed from the rear. We consider that the proposal does not respond

to the sloping topography and does not transition to the residential

hinterland in an acceptable manner.

52 We consider that the height of the tower element should be reduced by one

level or stepped down to the rear. The views of the experts for the permit

applicant was that it was not possible to step or remove a level at the rear


without impacting on the architectural composition of the tower element.

We agree that this cannot be achieved by condition.

53 We accept that the tower element does not otherwise result in any direct

amenity impacts to the neighbouring residential properties as set out in the

evidence of Mr Bastone. In particular we find that visual privacy is

acceptably addressed and that there is no significant overshadowing at the

equinox. It is telling that there is no shadowing of Mrs Hall’s property at

any time of the year.

Is the architecture and urban design response otherwise acceptable?

54 The applicant relied on architectural expert opinion from Mr Pearce who

gave evidence that the proposed design had a good functional layout/

planning, appropriate form and massing, contemporary expression of

selected materials and finishes all resulting in a high quality design. We

discuss the internal and functional aspects of the design below.

55 His view was that the architect had selected the materials palette on the

basis that it was referencing and responding to the nearby neighbourhood

residential hinterland. The proposed finishes include brick, render and metal

panels. The colour of the brick and render we agree is suitable for the site

context. However, we are not convinced that the Colorbond ‘Aries’ applied

finish to the metal panels will pick up the tones of nearby terracotta roofs

and brick as suggested.

56 The 3-D renderings suggest a medium to high level of reflectivity of this

finish, of which samples supplied during the hearing confirm. In our view

this would highly contrast the surrounding context to the point where any

referencing is lost. The result would be a very vocal bright and prominent

materiality. During the hearing the applicant agreed that a less reflective

finish could be dealt with by conditions and we agree.

57 The overall composition and architectural expression has merit and is

worthy of support. It is well arranged in a classical alignment of external

presentation and internal spatial function. However, as far as the quality of

the architecture put forward by the applicant of being high quality, it does

not result in a built form that is consistent with the planning scheme. It will

does not transition to the rear and will be highly visible from the residential

hinterland. For this reason we do not agree that the quality of design should

permit a height that exceeds the expectation of the planning scheme as we

find it.

Does the proposal provide an acceptable response to the drainage reserve?

58 We agree with the findings of the Panel in Amendment C125 that that part

of the drainage reserve that directly abuts the review site is a relatively

narrow strip of land that ends in a dead‐end. This section of the open space


is not of high‐quality. However, that part south of St Clair Avenue is

developed with a playground and other facilities.

59 While the Panel found that the interface did not warrant special treatment in

the form of a Neighbourhood Residential Zone, we find that it still warrants

consideration in a design response. It is included in the Public Park and

Recreation Zone and as our cities become more intensely developed, there

will be greater importance placed on public open space. With current eyes it

may be considered “unlikely to be substantially redeveloped or enhanced”

with future residents on its doorstep, we consider that it may become a

more valued asset. We say this even in the context of the common open

space areas provided within this proposal.

60 The experts in this case did not disagree. Ms Rigo was generally satisfied

with the proposal’s response to the reserve. Mr Sheppard and Mr Bastone

considered that the arrangement of the apartments at the lower levels would

provide for good passive surveillance and that the setback provided would

allow for some landscaping to soften this interface. No boundary fencing is

shown on the plans.

61 We find that while the proposal is a significant improvement on current

conditions, and does address issues of passive surveillance, the proposed

setbacks to the drainage reserve are insufficient to provide for any

meaningful contribution by way of landscaping to the reserve interface.

Landscaping is restricted within the setback that is intended to serve as an

overland flow path.

62 We consider that where this proposal abuts the reserve, it can and should

contribute to the Garden City Character. We find that the setbacks from the

reserve are not sufficient to achieve this.

Does the proposal respond to the Council car parks?

63 We agree with the evidence of Mr Sheppard that the Council car park

presents a challenging interface for this development, particularly if you

consider this land as suitable for redevelopment in the future.

64 Dwellings on the southern and eastern elevations have been orientated to

have sole outlook to this car park at lower ground and ground level up to

Level 2. To the east, there is no setback to the apartments, with balconies

located on the common boundary. The finished floor area is raised to assist

with direct amenity impact to these ground level apartments. To the south

there is a setback of 1.83m (because of an easement), with setbacks

increasing to 6.5m at level 2. The lower ground apartments also have

finished floor levels raised above the car park by about 1m.

65 While these arrangements do provide good passive surveillance of the car

park, we find that the amenity of these lower level dwellings due to the

limited setbacks will be poor both in the interim and particularly if

redevelopment was to occur on the Council land.


Does the proposal provide an acceptable interface to the nursery?

66 The Greenmount Nursery has been located here for over 60 years. It is a use

that is permissible within the General Residential Zone. The Nursery

includes a dwelling at the rear that is accessed from Lee Avenue. Mr

Larkin, who resides there and is the owner and manager of Greenmount

Nursery was concerned about the impact of shadow cast from the building

to the business in terms of temperature and daylight access. In particular it

was submitted that the proposal would overshadow the glasshouse and

fernery. Ms Pensa tabled plans showing the extent of winter shadow across

the site.

67 The proposal steps down in height to a three-storey wall height to the west

with a recessed fourth level. This replaces the existing single level

commercial height wall (5.34m at the frontage) on the common boundary.

We find that this is an acceptable response in the context of the General

Residential Zone which would, in the absence of transitional provisions

seek a three storey height limit. We accept that the nursery is also a future

redevelopment site and that future development would likely adopt a height

of at least three storeys.

68 The building will cast shadow to the nursery site. However, there is nothing

in the planning scheme that protects commercial land uses from shadow

impacts. Even if there was, we note that at the September equinox this is

generally limited to the existing nursery car park area. We understand that

the nursery has specific requirements, but find that this would be acceptable

because for the majority of the year the shadow will be limited to the car

parking area.

69 Ms Pensa submitted that the built form would be visually dominant when

viewed from the dwelling, particularly the deck area. On our inspection, we

viewed this area. This deck area is well setback from the review site.

However, there would be views of the whole of the building form. While

we do not take issue with the podium element, we consider that the tower

element will be visually dominant when viewed from this dwelling.

70 We note that there is a large Ghost Maple tree located close to the common

boundary with the review site. There has been no assessment of the impact

of the proposed development on the health of this tree.

WILL THE PROPOSAL MANAGE POTENTIAL FLOODING ISSUES?

71 Only a very small area of the review site is included within the Special

Building Overlay. However, it was clear at the hearing that there are

significant flood management issues identified by Melbourne Water across

the western portion of the review site. These issues cannot be ignored. We

refer to the general decision guidelines at Clause 65 that include:

Whether the proposed development is designed to maintain or

improve the quality of stormwater within and exiting the site.


The degree of flood, erosion or fire hazard associated with the

location of the land and the use, development or management of

the land so as to minimise any such hazard.

72 It appears that awareness of the extent of the flooding issue came to the

applicant late in the development of the plans when Melbourne Water

objected to the application as considered by Council. The amended plans

before the Tribunal have identified the flood levels between AHD 102.65m

at the north-western corner of the review site to 100.18m at the southern

end.

73 The substituted plans altered the finished floor levels across the

development to respond accordingly. They also included a 2 metre wide

overland flow path along the southern boundary of the land (despite

existing built form in this location). Further advice from Melbourne Water

dated 16 August 2017 supported the application subject to conditions.

74 However, the need to address the flood issue has resulted in significant

level changes throughout the development as identified by Ms Loke. She

submitted that the proposal did not provide for accessibility objectives. The

plans before us require steps to be negotiated for access to all apartments,

with no provision for persons of limited mobility. The layout also has steps

within the commercial tenancies.

75 Mr Bissett agreed with the submissions of Ms Loke and sought to address

these issues in the hearing. Plans were tabled at the end of the hearing that

showed the removal of the accessibility barriers for the majority of the

development. The western pedestrian entry could not be modified to allow

disabled access. In addition, access from the basement to the eastern lift

core would require stairs and five apartments would still include stairs for

entry access.

76 The proposal also places the basement entry at the location of flooding.

While Melbourne Water is satisfied that with the provision of a flood apex

that this will work, it seems a poor design response given that the majority

of the frontage is above the flood level. This means that when there is a

flood that there will be restricted access to the basement. In addition the

design of the westernmost pedestrian entrance would result in flooding to a

depth of 320mm.

77 We consider that the design response to this constraint has attempted to

adapt the original plans rather than responding to the constraint with fresh

eyes. We are not persuaded that these matters can be addressed simply

through planning permit conditions or on the run.

IS INTERNAL AMENITY ACCEPTABLE?

78 Council did not raise any significant internal amenity concerns, subject to

the changes recommended in the evidence of Mr Bastone. Mr Bastone

considered that internal amenity was generally acceptable and

recommended minor changes to the apartment layouts.


79 We have carefully considered the internal amenity of this proposal. At the

hearing, we identified that some of the balconies were less than eight square

metres (see for example Type 1B-E, 1B-G, 1B-H, 1B-1, 2B-A, 2B-C, 2B-

D, 2B-H and 2B-L). While the Better Apartments Design Standards do not

apply to this proposal and the former Guidelines for higher density housing

did not specify balcony sizes, it is clear that these balconies are very small.

The small size is compounded by the indicative location of planters/

greenery on some of these balconies, which would likely render these

balconies impractical.

80 We note that many apartments nominate dining areas that appear too small

to accommodate a small dining table and chairs, and are arguably not fit-

for-purpose or workable (1B-G, 2B-D, 2B-E, 2B-G, 2B-M, 2B-N, 2B-O,

2B-Q, 3B-B, 3B-C). It is our view that this indicates that the functional

layout of many of the apartments is not sufficient to provide good internal

amenity. While some apartments could not provide a dining area, future

occupants should be afforded spaces that foster good living experiences,

including being able to share a meal with family and friends at home,

particularly in a 3 bedroom apartment.

81 We note that there are two areas of communal open space, which we

commend. However, there are some issues of internal overlooking between

the communal areas and the dwellings (see for example apartments 101 and

117).

82 In addition we are concerned about the amenity of a number of apartments

such as 119 that have a bedroom relying on a snorkel arrangement to the

light well of the communal open space area. In the ESD report Mr

Richardson gave evidence that

It was determined that a total of 124 bedrooms meet all the relevant

DTS (deemed to satisfy) criteria and were therefore assigned as Auto

Pass.

83 The snorkel bedroom arrangement of apartment 119 at level 1 continues for

the next four storeys directly over (Apt 216 at level 2; Apt 313 at level 3;

Apt 409 at level 4; Apt 509 at level 5). Over all these levels the light shaft is

covered by the terrace of Apt 606 at level 6, hence the light shaft, which is

only open to one side (to the west) is a 1.2 metre wide and 2.2 metre deep

shaft extending 6 stories and not open to the sky. This will invariable also

limit light and ventilation, further diminishing amenity internally. For this

reason we are not persuaded by the evidence of Mr Richardson. An

acceptable amenity outcome could be arrived at utilising design principles

that prioritise natural light and ventilation.

ESD ASSESSMENT AND IMPLEMENTATION REPORT

84 The evidence of Mr Richardson was that the proposal meets the required

‘best practice’ benchmark of the planning scheme using the Built

Environment Sustainability Scorecard (BESS) tool of assessment. We


understand that this benchmark relies on easily achievable benchmarks to

be met utilising basic good design principles including an increase in the

Building Code minimum energy efficiency requirement of 10%.

85 An application requirement of Clause 22.13 – Environmentally Sustainable

Development Policy for developments of this type is to prepare a

Sustainable Management Plan (SMP). The SMP prepared by Mr

Richardson demonstrates that a detailed assessment (utilising tools such as

BESS, STORM, GreenStar, MUSIC) has been undertaken to meet

minimum sustainability policy relevant provisions contained within the

State Planning Policy Framework of the Monash Planning Scheme.

86 Mr Richardson also recommended that in implementing the additional ESD

initiatives proposed but not considered under the BESS assessment, a new

SMP be prepared for the building construction stage to ensure follow

through. It was also his view that the additional initiatives were not

recognised under the BESS assessment but should be acknowledged.

87 Suggestions of a Construction Management Plan stipulating targets (e.g. a

80% recycled target from demolition) we say is appropriate however we

consider that it is difficult to accommodate such requirements as planning

permit conditions. It may be more appropriate if these measures were to the

satisfaction of the responsible authority rather than specify discreet targets

during the construction phase in a planning permit condition.

ARE TRAFFIC AND CAR PARKING MATTERS ADDRESSED?

88 The proposal in the VCAT Alternative Plans provide for:

Five staff car spaces for the medical centre plus 2 patient car spaces

(three practitioners).

2 staff car spaces for the convenience shop and the take away food

premises.

All resident car parking and 4 residential visitor car spaces.

89 The evidence of Mr Turnbull was that the proposal should provide on-site

car parking for all long-term requirements including residents and

commercial land uses. The VCAT Alternative Plans achieve this for future

residents and staff of the commercial land uses.

90 The evidence of Mr Turnbull was that this is not a great site for on-site car

parking for casual users because of the difficulty of entry and exit to High

Street Road and the flood issues. He recommended that all shop customer

car parking occur off-site and that patient and residential visitor parking be

limited. Mr Turnbull submitted that access to the patient car parking would

be provided by an entry code provided to the patient at time of making an

appointment.

91 Council accepted that some visitor car parking and shop customer car

parking could be accommodated off-site, but submitted that the proposal


should provide on-site car parking for the medical centre. Council also

sought conditions requiring a car share provision within the development.

92 Based on the material before us, we agree with Mr Turnbull that it is

acceptable to provide for visitor and customer car parking off-site as

proposed. However, we consider that all car parking for the medical centre

should be provided on site. The future occupant is not known at this time

and a medical practitioner could reasonably be expected to have patients

with limited mobility, elderly, injured infirmed or have a disability. As

discussed at the hearing, an alternative may have been to reduce the number

of practitioners to two further reduce the car parking requirement.

93 The respondents in this matter were concerned that the reduction in the on-

site car-parking requirement would result in increased use of the Council

car park facility. We consider that this is a matter of enforcement. Council

can introduce car-parking restrictions as appropriate within its car park.

94 VicRoads did not object to the basement access and did not seek to limit

access to left in/left out only. The evidence of Mr Turnbull was that the

entrance design was acceptable. There will clearly be some difficultly in

turning right from this site into High Street Road, just as there is when

existing the Council car park. However, we are satisfied that this is

acceptable based on the evidence before us.

95 We accept that the proposal will place more cars onto High Street Road.

However, there is no evidence or material before us that suggests that this

will be unacceptable in terms of the safety or operation of the road.

96 In terms of the basement layout we note that both Council’s traffic

engineers and Mr Turnbull were satisfied. We questioned the location of the

disabled car space on the lower ground level if the finished floor levels

were adjusted as set out above in the VCAT Alternative plans, but this is a

matter of detail that could have been addressed by permit conditions.

97 The evidence of Mr Turnbull was that the proposed car share requirement

by Council was not appropriate. Mr Richardson agreed because public

access was required for providers such as Flexi/ GoGet. He considered that

this would be better contemplated within the Council car park where far

broader use. We agree, particularly given the flood constraints to this

basement.

CONCLUSION

98 The Tribunal’s role is to determine the dispute and make a decision about

the permit application before it.

99 We find that the proposal as before us (in either the substituted plans, the

VCAT Alternative Plans or the additional plans tabled at the hearing to

address Melbourne Water’s requirements) is not acceptable for the reasons

outlined above. We find that our concerns cannot be simply addressed

through permit conditions.


100 Interim orders are sometimes appropriate in circumstances where the

proposal embodied in the permit application is satisfactory save in discrete

defined respects and where conditions are not adequate to satisfy the

Tribunal that a permit should be granted. However the design changes

required by an interim order should not be an invitation to redesign the

whole proposal. We consider that there are some fundamental design

matters which the various sets of plans have not resolved including the

basic finished floor levels which would result in a redesign of the whole

proposal.

101 The permit applicant submitted that refusal of this application means that

the opportunity for this site to contribute to urban consolidation objectives

may be lost. We are not persuaded by this. We are aware that change has

occurred to the General Residential Zone that will mean that future height is

limited. We consider that this fact should not influence a decision to issue

an interim decision. It is not for the Tribunal to take a position that such

changes are not fair and effectively take into its own hands the project

management of applications. There are options within the planning system

available to the applicant if they wish to pursue an amended proposal with

additional height.

102 For the reasons set out above, the decision of the responsible authority is

affirmed. No permit is granted.

Megan Carew

Presiding Member

Lorina Nervegna

Member

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ......Abuts a Road Zone- Category 1 (High Street Road)...

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