victorian civil and administrative tribunal … · web vieworder. pursuant to section 127 of the...

+VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LISTVCAT REFERENCE NO. P412/2014

PERMIT APPLICATION NO. GE/PP-26221/2013

CATCHWORDSGlen Eira Planning Scheme; Application pursuant to Section 77 of the Planning & Environment Act 1987; General Residential Zone (GRZ1); McKinnon Neighbourhood Centre - Residential; Housing

Diversity Area Policy; Clause 55 (ResCode); Three storey building; Ten dwellings, Twelve basement car spaces; Neighbourhood character; Scale; Density of built form; Landscaping; Traffic; Car parking.

APPLICANT TEBA Pty Ltd

RESPONSIBLE AUTHORITY Glen Eira City Council

RESPONDENTS Julian Silverman, Barbara Jenkins, Maurice & Mary Hadley, Sophie Keele, Lynne Borgia, Patrick McCormick, William & Angela Thornburn, Peter Barton, John & Susan Groenewegen, David Stewart, Aaron & Elissa Nott, Mardi Radford, Helena & Frank Arrigo, Aleksandra Warwas

SUBJECT LAND 6 Prince Edward Avenue, McKinnon

WHERE HELD Melbourne

BEFORE J A Bennett, Member

HEARING TYPE Hearing

DATES OF HEARING 4 and 15 August 2014

DATE OF ORDER 5 September 2014

CITATION

ORDER1 Pursuant to section 127 of the Victorian Civil and Administrative Tribunal

Act 1998 the application is amended by changing the name of the applicant to:

TEBA Pty Ltd.

2 Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

TEBA Pty Ltd.

3 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: The Silver Arc Design Works

Drawing numbers: TP1 to TP14 - Revision D - For VCAT Circulation

Dated: 17-06-2014

4 The decision of the Responsible Authority is affirmed.

5 In permit application GE/PP-26221/2013 no permit is to issue.

J A BennettMember

VCAT Reference No. P412/2014 of 14

APPEARANCES

For TEBA Pty Ltd Mr John Cicero, Solicitor of Best Hooper Solicitors. He called written and oral evidence from: Mr Maugan Bastone, Town Planner of

Urbis Pty Ltd. Mr John Patrick, Landscape Architect of

John Patrick Pty Ltd. Mr Russell Fairlie, Traffic Engineer of

Ratio Consultants Pty Ltd.

For Glen Eira City Council Mr Nick Sissons, Supervising Planner (VCAT).

For Respondents in order of appearance

Mr David Stewart, Ms Lynne Borgia, Mr Patrick McCormick and Mr Julian Silverman.

INFORMATION

Description of Proposal Construction of a three storey building containing ten dwellings over basement parking for twelve vehicles.

Nature of Application Section 77 Planning & Environment Act 1987.

Zone and Overlays General Residential Zone (GRZ1).Parking Overlay (PO2-3).

Permit requirements Cl. 32.08-4 (two or more dwellings on a lot in GRZ1).

Site inspection I undertook an inspection of the review site and the locality between the first and second days of hearing.

Land description The review site is a rectangular shaped lot with a frontage of 15.85 metres, a depth of 45.72 metres and an area of 724m2. The site is currently occupied by a single storey unoccupied and somewhat derelict dwelling with vehicle access along the southern side boundary.


REASONS

What does the future hold for Prince Edward Avenue?1 This hearing has again highlighted the very different expectations about the

future of our neighbourhoods and where we live. Different expectations about what we want for ourselves, for our families and our neighbours, and for our community.

2 On the one hand, I have heard from residents who, whilst accepting that some evolutionary change will occur in Prince Edward Avenue and nearby streets, do not accept the physical change which is likely to occur because of the controls and policies contained in the Glen Eira Planning Scheme.

3 As I observed at the hearing, the absence of demolition controls, the zoning of the land as GRZ1 rather than Neighbourhood Residential, the proximity to train station and shops, and the encouragement given to more intensive development in a Neighbourhood Centre, will eventually lead to a very different character for this area.

4 Although townhouse developments of two and three double storey dwellings have started to appear in this area, the restrictions now in place over most of the municipality will act to focus more intensive development into areas such as this in McKinnon. It may not mean the whole street is filled with three storey apartment buildings but it almost certainly means that the existing single dwellings on a lot will be gradually replaced. It may take twenty or thirty years but, based on submissions and statements of grounds, I am not sure that existing residents appreciate the changes that will occur in response to development outcomes sought by the Glen Eira Planning Scheme.

5 In almost complete contrast, I have heard on behalf of the permit applicant that the proposal I am considering is in direct response to the height controls of the GRZ1, and local planning policies for Housing Diversity Areas and the residential area of the McKinnon Neighbourhood Centre. Although the proposed building is very different to any buildings that exist outside the commercial strip along McKinnon Road, it is said nevertheless to be an acceptable development when assessed against relevant sections of the planning scheme such as Clause 22.07-3.1 and Clause 55 (ResCode).

The proposal and why is it not supported?6 The permit application is seeking approval for a three storey building

containing ten dwellings above basement parking for twelve vehicles. Approval is also being sought for a reduction in two visitor car spaces.

7 Ground floor contains four dwellings. Two face the street and two face the rear boundary. A pedestrian walkway along the northern boundary provides access to these four dwellings and to a lift serving the two upper floors and the basement. The two dwellings facing Prince Edward Avenue have


secluded open space within the front setback set behind a 1.8 metre high fence. Dwelling 1 on the northern side has an area of 50 square metres accessed off the living area. Dwelling 2 on the southern side has 34 square metres of open space accessed off a bedroom in the front setback and an additional open space area of 30 square metres facing south off the living area. The two rear dwellings each have secluded open space areas of approximately 53 square metres.

8 First floor contains another four dwellings orientated to the front and rear boundaries in a broadly similar layout to the ground floor. Open space is provided by way of relatively small balconies of at least eight square metres in area.

9 Second floor contains two dwellings, one facing the street and the other the rear boundary. Each has a balcony with an area of approximately ten square metres.

10 All but one of the dwellings contains two bedrooms. Dwelling 10 on the second floor contains one bedroom and a small study. The building has a maximum height of 9.735 metres and adopts a contemporary flat roof design. The building is set back 9 metres from the front boundary and set off all other boundaries except for a 5.185 metre long section of lobby wall positioned on the northern boundary. The basement is built on or relatively close to the northern and southern boundaries with a more substantial 3 metre set back east of the basement ramp.

11 Council resolved to refuse the application on four grounds which can be summarised as:

i The proposal is inconsistent with local policy for housing and residential development at Clause 21.04 as it would not adequately respond to its context and would not respect the existing and preferred neighbourhood character.

ii The proposal is inconsistent with the intent and objectives of Clause 22.07 (Housing Diversity Area Policy) because of lack of transition to the adjoining residential properties, inadequate side and rear setbacks, excessive and unreasonable visual bulk impacts on the adjoining residential properties, extent of first and second floors, and visual dominance of the development within the streetscape.

iii The proposal does not satisfy Clause 55 (ResCode) objectives for neighbourhood character, residential policy, dwelling diversity, street setback, building height, landscaping, side and rear setbacks, north facing windows, overlooking, private open space (dwellings 1, 3, 4 and 8), design detail and front fences.

iv Failing to meet the requirements of design standard 1 of Clause 52.06-8 because the design of vehicle access and basement ramp will not allow ease and safety for vehicles accessing the car park.


12 Nearby landowners and residents have lodged statements of grounds which largely mirror Council’s grounds of refusal. In addition they are concerned about inadequate parking and traffic impacts.

13 Based on my response to the material accompanying the application and presented at the hearing, I consider that the key questions to be decided are as follows:

a Is a more intensive medium density development supported by planning policy and the General Residential Zone?

b Is the intensity of the proposal an acceptable response to neighbourhood character, ResCode and site context including the ability to provide adequate landscaping and acceptable internal and external amenity?

c Does the proposal cause unacceptable parking and traffic impacts?

14 I address each of these questions in the following sections.

Is a more intensive medium density development supported by planning policy and the General Residential Zone?15 Recent changes to State policy arising from the adoption of Plan Melbourne

have not dramatically changed the philosophy underpinning metropolitan planning. State policies dealing with activity centres (Clause 11.01), urban growth (Clause 11.02), residential development, including location of residential development (Clause 16.01-2), landscape, valued built form, cultural context and high quality urban design and architecture (Clause 15), strategic redevelopment sites (Clause 16.01-3), and integrated transport, including the principal public transport network (Clause 18.02-3) all provide a framework for metropolitan planning and desired development outcomes.

16 Although the categorisation of activity centres has been largely removed from State policies, there is still an intention that intensification of development will occur in and around activity centres, on and close to the Principal Public Transport Network and on strategic redevelopment sites.

17 However there is a limit to that intensification depending on the particular zone, overlays, policies and characteristics applying to an area or individual site. There is still a need to consider neighbourhood character and site responsive design even when the land is in the General Residential Zone. Two of the five objectives of the General Residential Zone specifically require consideration of neighbourhood character, including respecting neighbourhood character and implementing neighbourhood character policy and adopted neighbourhood character guidelines. In addition, a third objective identifies the zone as providing for moderate housing growth.

18 It is also the case that protecting the residential hinterland and targeting more significant residential development to limited areas such as those mentioned above or on land included in the Residential Growth Zone, does


not mean that all development is prohibited within the residential hinterland included in the Neighbourhood Residential Zone. It is certainly curtailed, but given the many thousands of lots in the Neighbourhood Residential Zone, there still remain many opportunities to double the number of dwellings on individual lots – both in Glen Eira and across the metropolitan area.

19 These broader State level policies also need to be considered together with local policies. In the Glen Eira Planning Scheme local policy identifies nine major land use elements or themes and provides policies for each. The Residential Framework Plan at Clause 21.04 seeks to largely maintain the predominantly low density detached housing in the municipality and to target increased density housing into specific locations. The areas where the existing housing density is to be maintained are identified as ‘minimal change areas’.

20 Multi-unit housing is to be encouraged and facilitated in housing diversity areas which are categorised into a hierarchy of centres. The level of development is to be greatest in Urban Villages/Phoenix Precinct, with progressively lower levels of development in Neighbourhood Centres – Commercial, Local Centres/Tram Routes & Selected Main Roads, and Neighbourhood Centres – Residential.

21 Policy for Housing Diversity Areas is contained in Clause 22.07 and specifically excludes land in the three designated Urban Villages and the Phoenix Precinct, where separate policies at Clauses 22.05 and 22.06 apply.

22 The review site is within the McKinnon Neighbourhood Centre – Residential. Clause 22.07-3.1 includes policy for neighbourhood centres. The two objectives seek to:

Recognise neighbourhood centres as locations which provide significant opportunities for housing diversity, but at a lesser scale and density than developments in urban villages and the Phoenix Centre.

Recognise that different development outcomes are sought in the commercial and residential areas of neighbourhood centres.

23 It is clear from the above that different development outcomes are expected depending on where a centre is positioned in the hierarchy and whether land is in the commercial or residential areas of a neighbourhood centre. Separate policies are given for each area within neighbourhood centres. In the case of residential areas these are to:

Encourage a mix of dwelling types and layouts.

Recognise that these areas offer opportunities for multi-unit development, but at a lower scale and density than development in the commercial and mixed use areas of neighbourhood centres.

Ensure that the density, mass and scale of residential development is appropriate to that of the neighbourhood centre.


Ensure that residential development is sited and designed so that it does not dominate the streetscape.

Encourage the consolidation of sites to promote development opportunities.

Encourage a decrease in the density of residential development as the proximity to the commercial area of the neighbourhood centre decreases.

Ensure that the siting and design of residential development responds positively to its interface with existing residential development in minimal change areas.

24 I have already made comments about the apparent gulf between what the Planning Scheme is trying to achieve for this area and the expectations of residents. Aside from the last dot point above, which does not apply to this site located well away from a minimal change area, the other dot points are all relevant.

25 In principle, I consider that the zone, the absence of overlays, the consideration of relevant planning policies and the locational attributes all lend support to a more intensive development on the review site. Although residents may prefer medium density developments of not more than two or three double storey townhouses, that intensity of development is inconsistent with the extent of built form expected within a neighbourhood centre and in a housing diversity area.

26 However I make the point that more intensive development does not necessarily mean that individual lots along Prince Edward Avenue will be capable of accommodating three storey apartment style buildings containing ten dwellings. It may be, for example, that individual lots are unable to comfortably accommodate such development and that lot consolidation will provide a means whereby such buildings can be comfortably accommodated in this area. It is certainly the case that policy at Clause 22.07-3 encourages lot consolidation to promote development opportunities.

27 I therefore agree with the permit applicant that a more intensive development is an appropriate response to the planning controls applying to this part of McKinnon. Whilst there is an intention in the zone purposes that development will respect neighbourhood character and that neighbourhood character policy and guidelines will be implemented, there is also an intention in zone purposes that development will provide for a diversity of housing types and moderate growth in locations offering good access to services and transport. Policy for neighbourhood centres also recognises that such centres will provide significant opportunities for housing diversity but that scale and density will be less than in higher order centres. Policy also recognises that the scale and density of development within neighbourhood centres will be less in the residential areas than in the commercial and mixed use areas.


28 Consequently, it is necessary to decide whether the intensity of this particular development strikes an appropriate balance when assessed against these competing objectives and policies.

Is the intensity of the proposal an acceptable response to neighbourhood character, ResCode and site context including the ability to provide adequate landscaping and acceptable internal and external amenity?29 Although I have found that a more intensive development can be supported,

I consider that the proposal has tried to do ‘too much’ on this suburban sized site. Whilst I agree that the building is inside the 10.5 metre mandatory height limit in GRZ1, providing a three storey building on a relatively narrow site results in a building that dominates its surroundings. This is contrary to policy for these areas which is seeking to ensure that residential development is sited and designed so that it does not dominate the streetscape and that it be of a lower scale and density to that in the mixed use and commercial areas.

30 To date, development has largely followed these policy directions. The strip of Commercial 1 Zone along McKinnon Road is gradually being redeveloped for taller, more intensive apartment style developments. The three storey development two lots south of the review site on the corner of McKinnon Road and Prince Edward Avenue is representative of this new, more intensive development. Similar scale buildings further east along McKinnon Road and to the west on both sides of the railway line on land zoned Commercial 1 reinforces the physical and character differences between the commercial/mixed use and residential areas of the neighbourhood centre.

31 The two notable exceptions are the large community housing complex located between the railway line and Station Avenue and the very large aged care facility on the corner of McKinnon Road and Graham Avenue. Both sites are very large strategic redevelopment sites that have little in common with the much smaller suburban sized lots such as those sought to be redeveloped in Prince Edward Avenue and other similar side streets off McKinnon Road. Whilst I accept that the three storey building to the south impacts on the character of Prince Edward Avenue because of the way it turns the corner with the long side along Prince Edward Avenue, it is physically separated from the remainder of properties in Prince Edward Avenue by a laneway along the northern side of properties fronting McKinnon Road. Although the new apartment buildings further east on McKinnon Road do not have a laneway separation to lots in Graham Avenue, there is a stepping down in built form from those two/three storey buildings to the four double storey townhouses at 3 Graham Avenue.

32 Although the commercial building on the south west corner of McKinnon Road and Prince Edward Avenue has not yet been redeveloped, other properties to the west have been, or are being, redeveloped with two and three storey mixed use buildings. The new double storey town house


development on the north side of the laneway at 1 Prince Edward Avenue provides, or will provide, a transition in scale from the taller and more intensive built form which is evolving along McKinnon Road. I consider that this stepping down in both scale and intensity as it occurs at 1 Prince Edward Avenue and 3 Graham Avenue better responds to policy which is both seeking a lower scale and density in the residential areas of neighbourhood centres and a decrease in the density as the proximity to the commercial area of the neighbourhood centre decreases.

33 However, I want to stress that scale is not just a question of building height or number of storeys. Although the GRZ1 has a mandatory height limit of 10.5 metres, which in one sense sets a benchmark or an expectation about the heights possible in the GRZ1, it does not mean that three storey buildings will become the norm throughout the areas in that zone. One of the policies for the residential areas in neighbourhood centres is to encourage the consolidation of sites to promote development opportunities.

34 It is a policy that recognises the reality that larger lots generally have fewer constraints in accommodating more intensive development than is the case with smaller lots. It is fundamentally a question of building volume. Lot consolidation will generally allow for higher and larger buildings because of the ability to achieve various ResCode standards, such as those for side and rear setbacks, over the whole site rather than trying to achieve the same setbacks for individual buildings developed on each separate site. Consolidation therefore makes for a much more efficient use of land and allows for intensification of built form without the adverse impacts that can arise from trying to achieve a similar level of intensification on a smaller lot.

35 For example, a three storey building on a double width lot can provide, depending on the actual design, for a more well proportioned building with scope for larger boundary setbacks, enhanced in-ground landscaping of taller canopy vegetation, full compliance with parking requirements, no need to provide secluded open space in the front setback (including tall privacy fencing), and less need for extensive screening of upstairs balconies and windows. Depending on the number of on-site car spaces, it may also result in one less crossover, even if the one crossover needs to be wider than 3 metres.

36 Whilst I acknowledge that lot consolidation will not always be possible, the photos of various developments tabled by Mr Bastone largely confirm my comments above. Leaving aside those examples on tram routes, in urban villages, on main roads, in commercial areas and large strategic redevelopment sites such as the community housing complex in Station Avenue, those examples with a similar site context (side streets in the residential areas of neighbourhood centres) appear, perhaps with one exception, to be on double width lots. Although I am not suggesting that those examples be used as a template for development in Prince Edward


Avenue, they serve to demonstrate how lot consolidation can achieve the sort of outcome referred to above in paragraph 35.

37 Apart from these broader character and policy issues, Council’s grounds of refusal made reference to 10 ResCode objectives that were said not to be met. These are dwelling diversity, street setback, building height, landscaping, side and rear setback, north facing windows, overlooking, private open space, design detail and front fences. Although Mr Sissons’ submission recognises that the amended plans have improved on a number of these matters, Council remains concerned about:

The extent of screening required to avoid overlooking from upper level balconies and windows.

The size of some ground floor open spaces failing to meet the minimum ResCode requirements.

The limited useability of the ground floor open space areas for Dwellings 3 and 4 because of the extent of landscaping.

The orientation of balconies and open space providing very little amenity for residents.

The location of the lift well on the north side means the majority of larger units are all south facing thereby diminishing the degree of natural sunlight.

There is no diversity in dwelling sizes.

The size of bedroom and living areas of all dwellings is minimal.

38 Mr Bastone responded to each of Council’s grounds about failure to meet the listed ResCode objectives. I agree with his assessment against the numeric ResCode standards. With the exception of a small non-compliance with a first floor setback from the north boundary (should be 1.73-2.2 metres instead of 1.86-2.3 metres), the building meets all these standards.

39 However, my major concerns about this development do not relate to numeric ResCode standards. Instead they concern the broader concept of neighbourhood character which is referenced in the objectives for many of the ResCode requirements including B1, B6, B13 and B17. They also concern the policy guidance for sites in a residential area within a neighbourhood centre which I have referred to in some detail in the previous section. They also concern those ResCode requirements which are not subject to assessment against a numeric standard but which, when taken together, suggest the proposal is trying to do ‘too much’ on a single width suburban site. These include the location of ground level open space for Dwellings 1 and 2 in the front setback behind a 1.8 metre high fence, the location of the primary area of open space off the living area for Dwelling 2 on the south side of the building and shadowed during the relevant equinox assessment period (the secondary open space for this dwelling in the front setback is accessed through a bedroom), the small 8 and 8.4m2 first floor


balconies at the rear screened on all sides, and all upper floor windows except those facing the street have high sill heights or are screened to avoid overlooking. A number of these shortcomings were discussed at the hearing and could be addressed by permit conditions requiring changes to the design. However, those changes do not address the issues of scale and density which I have discussed earlier in my reasons.

40 Council is also concerned that the narrow site does not provide sufficient opportunity to mitigate bulk and mass by way of meaningful landscaping. Mr Patrick has prepared landscape plan and attended the hearing to give evidence and answer questions. I consider that whilst the landscaping proposal is acceptable given the layout of the proposed development, a different layout, with greater boundary setbacks, would have provided more scope for landscaping, particularly along the southern and northern boundaries where the basement is not setback from the boundaries. Although the landscape proposal includes eight 11 metre high Chanticleer Pears (four midway along the southern boundary and four along the eastern boundary), one 8 metre high Greenback Magnolia in the front setback, one 10 metre high Red Maple in the front setback together with other trees, shrubs and other planting, there is very little opportunity to mitigate the visual bulk of the building through landscaping along the northern boundary and much of the southern boundary. Whilst this may be acceptable or even considered generous in the mixed use and commercial areas of the centre, I am not persuaded that it represents an adequate response for a three storey building in the residential area of the centre.

41 In making these comments I acknowledge that there are newly constructed double storey dwellings in Prince Edward Avenue which have minimal landscaping and appear visually dominating. Aside from the fact that individual dwellings do not require a planning permit, they are not buildings which I would use to demonstrate acceptable built form. It is incongruous that, in most cases, individual dwellings do not undergo the same assessment against neighbourhood character and other policies as do developments comprising two or more dwellings, and that these individual dwellings can undermine the character of an area to a greater extent than medium density developments.

Does the proposal cause unacceptable parking and traffic impacts?42 The request to reduce visitor car parking by two spaces and adverse impacts

on the local street network did not form part of Council’s grounds for refusing the application. However these were issues of concern to residents. Based on the parking requirements set out in Clause 52.06, the only reason a permit is required for parking is the shortfall of two visitor car spaces. A total of 12 spaces are being provided for residents which exceeds the number required by Clause 52.06 by two spaces. Mr Cicero indicated at the hearing that if I was concerned about visitor parking then two resident


spaces could be allocated to visitors so that no permit is required to reduce on-site parking.

43 Although the site is very close to the train station, as discussed at the hearing, I am concerned that far little attention is being given to the cumulative effect of allowing reductions or waivers in the provision of on-site carparking in suburban areas such as McKinnon. Whilst the radial rail network might be convenient for workers travelling to and from the city, the train network is less convenient for non-radial trips. It is less convenient to rely on bus services, particularly at weekends and evenings, when I am consistently advised by traffic witnesses that most visitation occurs. If that is correct then there should be even less justification for allowing a reduction in on-site visitor parking.

44 Given this is a street and an area earmarked for more intensive development, then a threshold will be reached where on-street parking will reach saturation point. Although I accept that might be some way off, I nevertheless consider it inequitable that this development does not provide for all its parking needs within the basement. Moreover, as I observed during the hearing, the encouragement being given by the State Government to train travel has not been, for the most part, matched by the provision of sufficient additional parking facilities at train stations. The result is an expanding level of commuter parking in nearby residential streets, which inevitably compounds parking congestion. I accept that the commuter parking is not such an issue in the evenings and weekends but the lack of parking is symptomatic of a failure to address parking needs in a holistic manner.

45 Although I am refusing this particular proposal, I would encourage any new design to be fully compliant with Clause 52.06. If a permit is not required to reduce on-site parking then it is not an issue for further consideration.

46 A number of submissions also made reference to traffic congestion in Prince Edward Avenue and the adverse impacts that has on residents. Whilst I accept that driving along the street requires care because of parked vehicles, in itself it is not a particularly unusual circumstance in suburban side streets and is not a factor that would cause me to refuse the application. I also agree with Mr Fairlie that if existing parking and traffic arrangements are unsatisfactory to residents then they need to approach Council to see if improvements can be achieved.

Conclusion47 Having heard submissions and evidence, reviewed photos and the plans and

inspected the site and neighbourhood, I am not persuaded that the three storey building as now designed is an acceptable response to the neighbourhood character or site context.

48 Whist acknowledging the encouragement given to more intensive development because of its location in the McKinnon Neighbourhood


Centre, I consider that the intensity of built form needs to be reduced. The site is not in the commercial or mixed use areas of the centre, and there is a clear intention in policy that development in the residential areas will be at a lower scale and density.

49 I am not persuaded that, on balance, the current proposal represents an acceptable response to those policy directions. I will therefore order that the decision of the Responsible Authority be affirmed and that no permit is to issue.

J A BennettMember


victorian civil and administrative tribunal … · web vieworder. pursuant to section 127 of the...

Documents