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 377  Hawthorn Road Pty Ltd v Glen Eira CC [2019] VCAT 1819 (20 November 2019)

Last Updated: 20 November 2019

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PLANNING AND ENVIRONMENT DIVISION

APPLICANT	377  Hawthorn Road Pty Ltd
RESPONSIBLE AUTHORITY	Glen Eira City Council
REFERRAL AUTHORITIES	VicRoads Transport for Victoria
RESPONDENTS	N Nethercote & others G Norbury & S Reddaway
SUBJECT LAND	371- 377  Hawthorn Road and 3 Olive Street, Caulfield South
WHERE HELD	Melbourne
BEFORE	Rachel Naylor, Senior Member Gary Chase, Member
HEARING TYPE	Hearing
DATES OF HEARING	19, 20, 21 & 22 August 2019
DATE OF ORDER	20 November 2019
CITATION	377  Hawthorn Road Pty Ltd v Glen Eira CC [2019] VCAT 1819

ORDER

Amend permit application

1. Pursuant to 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:

2. Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by removing any planning permission for a reduction in the required car parking as all car spaces are now provided.

No permit granted

3. In application P467/2019 the decision of the responsible authority is affirmed.
4. In planning permit application GE/DP-32447/2018 no permit is granted.

APPEARANCES

For  377  Hawthorn Road Pty Ltd (the applicant)	Mr P Bisset, solicitor of Minter Ellison Lawyers He called the following expert witnesses: Mr J Glossop, town planner of Glossop Town Planning Pty Ltd; Mr B Blades, urban designer of SJB Urban; Ms C Dunstan, traffic engineer of Traffix Group Pty Ltd; and Mr J Patrick, landscape architect of John Patrick Landscape Architects Pty Ltd.
For Glen Eira City Council (the Council)	Ms K Piskuric, solicitor of Harwood Andrews
For VicRoads	No appearance
For Transport for Victoria	No appearance
For Mr N Nethercote & others	Ms L Hicks of counsel by direct brief
For Mr G Norbury & Mr S Reddaway	Ms L Hicks of counsel by direct brief

INFORMATION

Land description	The site is on the east side of Hawthorn Road in the Caulfield South neighbourhood centre. The site extends from Olive Street to the south to Larch Street to the north. It comprises of six lots that include vacant land at Nos. 371- 377  Hawthorn Road and a single storey house at No. 3 Olive Street. The overall dimensions of the site are 60.69m to Hawthorn Road, 40.23m to Olive Street and 50.29m to Larch Street. The combined site area is 3,065sqm. There are commercial properties on the opposite side of Hawthorn Road. There is both commercial and residential properties on the opposite side of Larch Street, and the opposite side of Olive Street. There are residential properties abutting the east side boundary of the site.
Description of proposal	A seven storey (24m high) building comprising a three storey podium with four storeys above. The building includes a supermarket with a net leasable floor area of 2,265sqm (over the ground and first floors) and 77 dwellings comprising 2 one bedroom apartments, 64 two bedroom apartments and 11 three bedroom apartments. Three levels of basement parking are provided (levels 1 and 2 provide 116 supermarket spaces and 6 residential visitor spaces, and level 3 provides 88 residential spaces).
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Planning scheme	Glen Eira Planning Scheme
Permit requirements	Clause 34.01-1 To use the land for the purpose of dwellings because the ground floor frontage of this use exceeds 2 metres in C1Z Clause 34.01-4 To construct a building and to construct or carry out works in C1Z Clause 32.08-6 To construct two or more dwellings on a lot in GRZ1
Zone and overlays	Nos. 371- 377  Hawthorn Road are zoned Commercial 1 (C1Z) (the pale colour in the image below) No. 3 Olive Street is zoned General Residential Zone Schedule 1 (GRZ1) (the light pink colour in the image below)
	Hawthorn Road is a Road Zone Category 1 (the dark pink colour in the image below) Extract of zoning map contained on page 44 of Mr Glossop’s expert evidence statement All lots are affected by a Parking Overlay Schedule 2-3 Nos. 371- 377  Hawthorn Road are affected by an Environmental Audit Overlay

REASONS[1]

OVERVIEW

1.  377  Hawthorn Road Pty Ltd (the applicant) seeks planning permission to construct a seven storey building containing a supermarket and residential apartments on the land comprised of Nos. 371- 377  Hawthorn Road and 3 Olive Street in Caulfield South.
2. The initial planning permit application lodged with the Council sought approval for a 9 storey building. Surrounding property owners objected to this permit application. The Council issued a Notice of Refusal on several grounds relating to issues of building height in the neighbourhood centre, the residential eastern interface impacts, the commercial activities in Larch Street impacting on the amenity of the surrounding area, the parking and traffic resulting in adverse impacts on the safe and efficient operation of the surrounding road network, and that VicRoads objected to the proposal.
3. The amended proposal before us has (amongst other changes) reduced the height of the development to seven storeys and provided or exceeded the car parking requirements for the residential apartments and the supermarket. The Council and surrounding property owners still oppose this proposal for reasons similar to those already outlined. The residents also expressed concern about the overshadowing, including the potential for overshadowing impact upon existing solar panels on a few properties in Olive Street.
4. Aspects of this proposal are acceptable. This includes the design of the supermarket, its loading arrangements and car parking provision, all subject to some modifications. The acceptable aspects of this proposal also include the podium height and design, and the interface of the lower levels of the building with the residential properties to the east.
5. The most difficult aspect of this proposal and the key reason why we have decided to refuse this proposal is the design of the upper levels. There is an absence of any guidance in the planning scheme about how this neighbourhood centre, including this site, should change. Hence, it is necessary to consider the existing physical and strategic planning policy contexts and the design of this proposal relative to other recent developments in this and other activity centres. The applicant’s urban design witness, Mr Blades, has utilised the urban design approach taken in the City of Yarra to Bridge Road and Johnston Street. Having considered all of these matters together with the concerns raised about the amenity impacts on the residential area to the east, we have decided the design of the upper levels is not acceptable.
6. The key issues that we have considered in reaching our decision are:
   • The physical and planning context relevant to new development on this site;
   • The design of the supermarket;
   • The design of the podium;
   • The design of the upper levels;
   • The internal amenity created for new residents;
   • The potential impacts upon residential amenity; and
   • The car parking and traffic generation.
7. The reasons why we find some aspects of the proposal acceptable but the design of the upper levels is not acceptable are explained below.

THE PHYSICAL AND PLANNING CONTEXT RELEVANT TO NEW DEVELOPMENT ON THIS SITE

The physical context

Site’s physical context

8. We agree with the applicant’s submission that the site has physical attributes that make it an excellent candidate for the type of development proposed:
   • It is a large, consolidated landholding of 3,067.25 square metres, and is one of the largest landholdings in this immediate area;
   • It has three road abuttals;
   • It is close to public transport;
   • It has good access to a range of commercial, community and recreational facilities;
   • It is not located within or adjacent to any area recognised in the planning scheme as having heritage value; and
   • It is not affected by any slope, servicing or vegetation constraints which restrict its development potential.
9. There is a constraint to the east of the site, which contains the residential area of Larch and Olive Streets. Of particular relevance and which is a factor that influences the development potential of the site is the adjacent small residential lots of Nos. 2 Larch Street and 5 Olive Street.
10. A relevant physical characteristic of the immediate area surrounding this site is its generally low scale buildings. The majority of the buildings are single or double storey. The old indoor bowls building on the opposite side of Hawthorn Road has the equivalent height of about 5 storeys, and there is a recent infill development to the south of the site along Hawthorn Road that has a maximum four storey height.

Planning context

11. The site and surrounds including all of Larch and Olive Streets are within the Caulfield South Neighbourhood Centre in the Housing Diversity Areas local planning policy at clause 22.07.

Extract of Caulfield South Neighbourhood Centre from the Housing Diversity Areas local planning policy

12. We agree with the applicant that this neighbourhood centre is where:
    • Significant change is encouraged to occur^[2];
    • Apartments and ‘shop top’ housing are specifically encouraged^[3];
    • A diversity of dwellings is encouraged^[4];
    • Key development sites are encouraged to contribute to the provision of housing diversity^[5]; and
    • Key development sites which are located in close proximity to fixed transport or commercial areas are encouraged to be developed for multi-unit development^[6].
13. The objectives for Housing Diversity Areas call for recognition of, and respect for, the established character:
    • To ensure that the siting and design of new residential development takes account of its interface with existing residential development on adjoining sites.
    • To ensure that the design of new residential development is sensitive to and respectful of the scale of existing residential development on adjoining sites.
14. The neighbours acknowledge that ‘to earmark an area for change but then insist that the prevailing scale remain the same is nonsensical’.^[7] We agree, but the question then arises as to what change, including what building scale is acceptably sensitive and respectful. This is where the key issue in this case about the upper levels comes to the fore. Mr Glossop and Mr Blades agree there is no specific guidance in the planning scheme about the envisaged or preferred extent of change in the neighbourhood centres. Mr Blades identified Design and Development Overlay controls in the ‘urban villages’ (higher order centres than neighbourhood centres) that set height limits of between 5 and 12 storeys. He also identified physical examples of recent or approved developments in neighbourhood centres:
    • 7 storeys in the Caulfield North neighbourhood centre;
    • two 5 storey developments at the west end of Glen Huntly Road in this Caulfield South neighbourhood centre;
    • 6 storeys in Bentleigh East neighbourhood centre; and
    • 6 storeys in McKinnon neighbourhood centre.
15. The Business section of the Municipal Strategic Statement at clause 21.06 includes objectives:
    • To enhance and further develop urban villages and neighbourhood centres as the focus for community life.
    • To encourage competitive retail outlets in viable, lively and interesting strip shopping centres.
    • To encourage more local employment and attract more local spending in partnership with business.
16. The implementation of these objectives includes:

Applying the Commercial 1 Zone to the core of all urban villages, neighbourhood centres and to local centres to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

17. This site, except for its southeast section (being No. 3 Olive Street) is zoned Commercial 1^[8], so it forms part of the ‘core’ where intensive retailing and other complementary uses are encouraged.
18. The physical and planning context of this site clearly supports an intense development of this site for commercial and residential purposes. As outlined earlier, having regard to this context, a key issue in this case is the acceptability of the proposed scale of the development.

THE DESIGN OF THE SUPERMARKET

19. The use of this site for the purpose of a supermarket does not require planning permission because the part of the site that it will occupy is in the Commercial 1 Zone where shops, including supermarkets, are land uses that do not require planning permission. However, the building and works associated with the supermarket do require planning permission.
20. The design of the supermarket features full length glazing facing Olive Street, Hawthorn Road and the western end of Larch Street. This is both appropriate and acceptable. The supermarket has a single point of entry at the corner of Hawthorn Road and Larch Street (the northwest corner of the building). This is acceptable. It is well removed from the residential entry lobby in Olive Street and is in a location that is closest to Glen Huntly Road and is in the ‘core’ of neighbourhood centre (the term used in the planning policies).
21. The supermarket carpark is located in basement levels one and two. Each of these levels contain two travelators adjacent to the northwest corner, providing access from the basement to the ground level entry area of the supermarket. The Council raised concern about the design of the travelators in the substituted amended plans, and suggested changes in its draft permit conditions tabled prior to the hearing. The applicant prepared and tabled ‘Revision A’ plans^[9] early in the hearing that give effect to the changes sought by the Council.
22. The Revision A plans lengthen the travelators and a splay is provided at the northwest entry, and the Council supports this design. (This is shown in the ground floor extract below). There are consequences that flow from the changes to the travelators. They include relocation of the loading bay further to the east, and changes to the layout of basement levels one and two in proximity to the travelators including reducing the trolley bay storage areas within each basement level. Ms Dunstan gave evidence the reduction in the trolley bay storage is not problematic as it is a matter of management. What this means, she explains, is that the trolley bays will need to be emptied more frequently due to the reduced storage capacity.
23. We accept these changes, including to the travelators and the trolley bay storage areas.

Extract of Revision A ground floor Larch Street layout

24. The properties in Larch Street, particularly those that are close to the proposed loading bay and commercial carpark entry, are concerned about noise associated with the use of the loading bay and headlight glare from the commercial car park entry/exit.
25. We are not persuaded the loading bay will result in unreasonable levels of noise. The loading bay door will be closed at all times whilst it is in use. There is no necessity for trucks to reverse into the loading bay with their beepers operating, as the turntable in the loading bay enables trucks to enter and leave the loading bay in a forward direction. We accept Ms Dunstan’s evidence that the angled entry/exit to the loading bay in the tabled Revision A plans encourages trucks to utilise the Larch Street and Hawthorn Road intersection, so the noise of truck movements is concentrated towards the main road (Hawthorn Road) and the commercially zoned area of this neighbourhood centre.
26. We are also not persuaded that the use of the commercial carpark entry/exit will create an unreasonable amenity impact to the neighbouring residential properties by way of headlight glare. Ms Dunstan points out that car headlights are generally located low on vehicles and are focussed to capture the ground. She also points out that the commercial carpark ramp is relatively flat for vehicles exiting into Larch Street.
27. Nos. 1 and 3 Larch Street are located opposite part of the site, which has a commercial zoning. We acknowledge and agree that these properties will experience change because there will be multiple vehicle movements occurring opposite them. However, this impact is acceptable for a commercial land use in a commercial zoning on a road with a width of 13.3 metres and, more specifically, for a commercial land use with the requisite car parking that requires no planning permission and hence is able to operate for extended hours if it wishes.

THE PODIUM DESIGN

28. The proposal incorporates a three storey street wall (podium) along the Hawthorn Road frontage and the majority of the frontages to Larch Street and Olive Street. The podium steps down to two storeys at the east end of its frontages along Larch Street and Olive Street. Neither the Council nor the residents raise any particular concern with the proposed heights of the podium.
29. Mr Blades gave evidence about the articulation of the podium level. He highlighted the Hawthorn Road frontage features breaks along its length to create a vertical rhythm respectful of the traditional retail fine-grain that is evident in the neighbourhood centre, particularly in Glen Huntly Road. This vertical rhythm includes two breaks in the expanse of the canopy over the Hawthorn Road footpath. The Council’s urban designer raised a concern about the lack of continuous weather protection, which we agree with. Whilst the breaking up of the podium along its length is an acceptable design response, a continuous canopy is also appropriate. The Hawthorn Road streetscapes on its east and west sides currently have a service industry/peripheral sales and office appearance, so they are quite different to the more traditional, fine grain retail streetscapes along Glen Huntly Road. The design should be modified to include a continuous canopy along Hawthorn Road.
30. The Revision A plans result in some changes to the appearance of the east end of the Larch Street streetscape. We were provided with a revised elevation of this on day 4 of the hearing (below). In our opinion, these changes are an improvement upon the substituted amended plans. We particularly support the simplification of the presentation of the first floor supermarket plant and staff areas in Larch Street.

Extract of Revision A Larch Street elevation from Dwg No. VC 2.02 Rev F dated 22/08/2019

31. For these reasons and subject to the changes explained, we support the proposed podium.

THE HEIGHT AND FORM OF THE UPPER LEVELS

A contextual analysis

32. The height and form of the upper levels is a key issue in this case. The predominant scale in the neighbourhood centre at the moment is around two to three storeys. Exceptions to this that were pointed out during the hearing include the old indoor bowls centre on the opposite side of Hawthorn Road, a four storey infill commercial development in Hawthorn Road just to the south of Olive Street, and the five storey developments further away to the west along Glen Huntly Road. The Council and the neighbours both consider the proposed design fails to provide a satisfactory level of transition to the established residential character of Larch and Olive Streets. They also consider the building is too tall and the setbacks are inadequate. The neighbours submit the proposed building will be significantly more prominent than any building in the immediate context by virtue of its height, width and setting.
33. As we explained earlier, the planning scheme provides no guidance as to the extent of change envisaged in its neighbourhood centres, including in this centre. The other approved or constructed developments in Glen Huntly Road and in other neighbourhood centres referred to during the hearing provide for building heights of five to seven storeys. However, their existence does not persuade us that that means such a height is automatically acceptable on this site.
34. The neighbours commended to us the approach taken in the Tribunal decision of Bewhite Properties Pty Ltd v Glen Eira CC [2018] VCAT 453 (Bewhite Properties). It determines that the height of new buildings in higher order centres does not mean other development in lower order centres must be lower. It also determines that six and seven storey buildings approved in one neighbourhood activity centre does not therefore mean seven storeys is an acceptable height for another site. We adopt the Tribunal’s findings that a specific analysis of a proposed design on a particular site is necessary having regard to its immediate context, a site’s specific opportunities and constraints, and ‘first principles’ of planning and general policy in the planning scheme.^[10] A contextual analysis and approach to determining an acceptable building height and form on this site is generally supported by the applicant.

Planning & urban design evidence

35. Mr Glossop’s planning evidence agrees a contextual analysis of the physical and strategic contexts is appropriate in determining the acceptability of the proposed built form. He places greater weight on the residential growth expectations articulated in the State and local planning policies and the role of neighbourhood centres as identified in the Housing Diversity Areas policy rather than on the existing physical context. He considers the proposal acceptably responds to the sensitive lower scale eastern interface but otherwise points out the site has no immediate abuttals. His view is this circumstance provides ‘latitude’ for a different built form expression, and the building design has been massed to respond to this. His evidence accepts the proposed height and setbacks on this basis.
36. Mr Blades’ evidence endeavours to determine how to consider what is an acceptable building in this context. He acknowledges the emergence of a five to seven storey height range for new developments in neighbourhood centres. He does not consider this site as an island site given its sensitive eastern interface. Having regard to the Housing Diversity areas policy at clause 22.07, Mr Blades considers a building that is higher than the prevailing building scale should achieve a graduated transition, should not dominate the streetscapes or distant views, and should have upper storeys that are recessive from surrounding land.
37. Mr Blades describes the proposal as having a podium/tower typology, and that the Hawthorn Road frontage comprises a ‘3+3+1’ composition. This is illustrated in the figure extracted from Mr Blades’ evidence statement on the following page. This composition means:
    • A three storey street wall;
    • Three middle levels (the mid-form); and
    • One upper level (the upper form).

Visual outcome of the ⅔, ⅓ concept

38. Mr Blades explains this composition is applying the concept of a ⅔ to ⅓ visibility ratio as viewed from the footpath on the opposite side of the road at a height of 1.7 metres above the footpath level. He considers this will render the upper levels as visually subservient to the street wall in close range views and reinforce the street wall as the principal visual element of the proposal.
39. During the hearing, Mr Blades elaborated that this ⅔, ⅓ concept is derived from recent Design and Development Overlays (DDOs) applied in the Yarra Planning Scheme to Bridge Road and Johnston Street. Mr Blades describes the ⅔, ⅓ concept as ‘a level of sophistication’.

Extract of Figure 6 from Mr Blades’ evidence statement showing the ⅔ (coloured blue), ⅓ (coloured green) concept from Hawthorn Road

40. Larch and Olive Streets are not main roads like Hawthorn Road, Bridge Road or Johnston Street. Mr Blades considers this ⅔, ⅓ concept can be applied in this case because they are ‘quite robust’ in regard to their road width.

Extract of Figure 7 from Mr Blades’ evidence showing sightlines in Olive and Larch Streets

41. Later in the hearing, we advised the applicant that we had had the opportunity to look at these DDOs^[11] and note that this ‘visibility’ ratio of ⅔ to ⅓ has not been universally applied along Bridge Road and Johnston Street. Rather, it appears an urban design analysis/framework has been undertaken that considers the context of the whole length of the respective road and then applies differing ratios to differing contexts. The ratios include ⅔ to ⅓, ¾ to ¼, and 45°. We also note there are differing preferred street wall heights as well. The applicant agreed with us that, as there has been no urban design analysis or framework prepared for this neighbourhood centre, determining the acceptability of the height and setbacks of the upper levels of a development on this site necessitates returning to ‘first principles’, being the consideration of the existing physical context and planning policy context.
42. Mr Blades’ figure 6 (extracted on the previous page) shows a view from the opposite Hawthorn Road footpath that is about 20 metres away. Ms Dunstan’s evidence advises Olive Street has a carriageway width of about 10.6 metres and Larch Street has a carriageway width of about 13.3 metres. Even allowing for the footpath, they are therefore physically smaller streets. They also have different built form characteristics to that of Hawthorn Road. The commercial and service industry nature of this section of Hawthorn Road has a robust building form. In contrast, the residential characteristics are of detached single and double fronted dwellings, including predominantly single storey houses along the south side of Larch Street. There are some double storey houses/house additions evident in Olive Street, as well as established street trees and naturestrips that further enhance the established residential setting of this street. Hence, we find the characteristics of Olive and Larch Streets are quite different to Hawthorn Road. This means a different built form response is necessary within these side streets.
43. Mr Blades’ figure 7 above, illustrates the limited visual benefit derived from a three metre setback to the three middle levels from Olive and Larch Streets. This ‘mid-form’ is clearly evident in these streetscapes. Having regard to the policy guidance in clause 22.07, we are not persuaded the tower element is visually subservient to the street wall. Hence, the tower is not recessive and will be a dominant element in both residential streetscapes and the more distant views from the east along both streets.
44. Having considered the differing ratios applied in schedules 15 and 21 of the Yarra Planning Scheme DDOs, a ratio of ¾ street wall and ¼ tower is more reflective of the greater sensitivity to be applied to a residential street. Applying this ratio necessitates the third, fourth and fifth floor levels being set back a minimum of eight metres and necessitates the sixth upper floor level being set back a minimum of 11 metres. We have illustrated this below. Applying these setbacks would achieve an outcome similar to the built form proportions evident in Olive Street given there would be a similarity to the front setbacks of the second storeys on residential properties.

Our indicative illustration of a ¾, ¼ composition in both Larch and Olive Streets

Eastern view and visual bulk impact to 5 Olive Street and 2 Larch Street

45. It is unrealistic and unnecessary for this building to be invisible from the established residential neighbourhood to the east of this site. This entire area is within a neighbourhood centre where built form change is encouraged, hence the fact that this proposed building will be visible is not sufficient reason to refuse it. Our findings that follow focus upon the acceptability of the visual bulk impact upon the two adjacent residential properties at Nos. 5 Olive Street and 2 Larch Street.
46. The east boundary of the site abuts the sideage of No. 2 Larch Street and No. 5 Olive Street. Both of these properties are relatively narrow in width and small in size. They each contain a single storey house that has a small back garden at the rear.

The lower levels

47. The proposed building is set back 3.36 metres from No. 5 Olive Street, and has landscaping including trees and a pedestrian path adjacent to its boundary. The proposed building is also set back 3 metres from the back garden and the covered outdoor area of No. 2 Larch Street. The ramp to the commercial carpark is built along the remainder of No. 2 Larch Street’s boundary. Mr Glossop points out that this wall is nominated on the east elevation as having a ‘minimum height’ of 3.2 metres, which varies from standard B17 in clause 55 that seeks an ‘average height’ of 3.2 metres. We agree with Mr Glossop that it is appropriate for this wall height to be an average height of 3.2 metres.
48. On the roof of the commercial carpark ramp (on the mezzanine plan TP1.05) is a proposed planter box setback approximately 1.6 metres from No. 2 Larch Street. Mr Patrick’s landscape concept plans did not identify this planter box. During cross-examination, Mr Patrick acknowledged this planter box could be utilised, but he would prefer a planter box with a greater internal width of 750mm rather than the proposed 550mm.
49. We are not persuaded that the inclusion of this planter box feature contributes positively to either the character or the amenity of the adjacent residential area. Enlarging the planter box brings a solid building element closer to No. 2 Larch Street, which has the potential to add to the visual impression or bulk of the building. Also, the planter box is not located within easy reach of the proposed trafficable areas. This creates uncertainty as to the likely maintenance and management regime in the future. For these reasons, the planter box should be removed and, instead, the proposed setback of 2.16 metres to the supermarket plant area be retained. This creates an acceptable level of separation to No. 2 Larch Street.
50. The layout of the proposed building is pulled back, away from the back gardens of Nos. 2 Larch Street and 5 Olive Street. There are increasing setbacks at each floor level within which there are a series of open space/landscaped areas at ground level, mezzanine level and first floor level. This is a good design response to the sensitivity of the adjacent back gardens.
51. At the first floor level, the proposed building is set back 8.4 metres from No. 2 Larch Street and is set back just over 10 metres from No. 5 Olive Street. This separation is similar to the width of these properties, which is also around 10 metres. The height of the building that comprises the ground and mezzanine floor levels, facing east, is around two to two and a half storeys. Each of the two abutting residential properties have the capacity to be developed to a height of three storeys or 10.5 metres based on their residential zoning. Hence, the building height of the ground and mezzanine floor levels combined with the proposed setbacks create an acceptable built form interface treatment to the abutting residential properties.

The upper levels

52. As we have explained earlier, this is a broad building and parts of it will be visible from the residential hinterland to the east. The combination of the back gardens and the small single storey houses at Nos. 2 Larch Street and 5 Olive Street create a high level of exposure to the extent (the breadth) of the proposed building’s east elevation.
53. The design response creates a central courtyard space with apartments at its western end that are set back around 25 metres from the site’s east boundary. This is a difficult design aspect to show in plan form, but we have selected the 10am Equinox shadow diagram that picks up the various levels on the east side and the central courtyard.

54. This central courtyard space creates a good separation and breaks up the visual presence of the building from its residential neighbours. The remaining north and south sections of the building contain setbacks from the east boundary that gradually increase from 8-10 metres, to 14-15 metres, to 21 metres. When these eastern side setbacks are combined with the changes that we have indicated are required from each of the street setbacks to the north and south sides of the building, the proposed upper levels will be smaller visual building elements as viewed from the eastern residential hinterland and the immediately adjoining residential properties.
55. We anticipate that providing larger setbacks on the north and south sides may have consequential impacts on the layout of the tower and may impact on the extent to which there is a central courtyard. Any such changes will need to be considered afresh as part of a new planning permit application. Clearly, the proposed upper levels will never be invisible, but they can be recessive and not dominant in the more distant views. In the existing policy context of a Commercial 1 zoning in a neighbourhood centre that encourages greater intensity of development, this extent of change and hence visibility would be acceptable.

THE INTERNAL AMENITY CREATED FOR NEW RESIDENTS

56. The changes we are seeking to the side street setbacks are significant and will impact on the number of apartments and the internal layout of the apartments. As such, we have not made any findings about the Council’s concerns regarding internal views between apartments, noise impacts, or daylight to internal communal accessways. The acceptability of the internal amenity will need to be considered afresh if a new planning permit application is lodged with the Council.

Communal space design and solar access

57. The Council is concerned about the layout, access to and solar access to the communal spaces. In general terms, the Council considers the communal spaces have a poor relationship to the 77 apartments they are intended to serve.
58. The communal open space objective at clause 58.03-2 of the planning scheme is to ensure that such space ‘is accessible, practical, attractive, easily maintained and integrated with the layout of the development’. Standard D7 requires a minimum area for developments with 40 or more dwellings. Mr Glossop advises this proposal is required to provide 192 square metres and a total of 508 square metres of outdoor communal open space is provided as well as an indoor study/library area of 142 square metres. The outdoor areas cascade down from the central area (around which the apartments face) to the differing levels of open space on the east side of the site (respecting the visual bulk impact potential to the adjoining residential properties).
59. The Council questions the useability of these various spaces. Having heard the planning evidence of Mr Glossop and the landscape evidence of Mr Patrick, we are persuaded that the design has been responsive to the sensitive eastern interface and the desire to create an internal amenity with a central courtyard. We find the communal open space provision satisfies the objective.
60. During the hearing, focus turned to the solar access to communal open space. This objective is ‘to allow solar access into communal outdoor open space’. Standard D8 has two expectations:

The communal outdoor open space should be located on the north side of a building, if appropriate.

At least 50 per cent or 125 square metres, whichever is the lesser, of the primary communal outdoor open space should receive a minimum two hours of sunlight between 9am and 3pm on 21 June.

61. We do not support the achievement of the first expectation in this case. Whilst communal open space on this site could take advantage of a northern orientation, to do so could impact upon the visual bulk impact on the sensitive eastern interface. For the reasons already explained, we are not persuaded a northern communal open space area is appropriate in this case.
62. In regard to the second expectation, the Council focussed on the central courtyard as the ‘primary communal outdoor open space’. There is no definition of this term in either standard D7 or D8. Given it is the largest space, it makes sense to consider it but consideration should also have regard to the decision guidelines. They are:
    • The design response.
    • The useability and amenity of the primary communal outdoor open space areas based on the urban context, the orientation of the building, the layout of dwellings and the sunlight it will receive.

(underlining is our emphasis)

63. As a result of the findings about the urban context (physical and policy) and the acceptability of the building orientation, there will be consequential outcomes for the internal amenity of some of the dwellings and the communal open space. The winter shadow diagrams illustrate the sunlight will primarily be on the cascading areas of open space on the east side of the building. We are not persuaded this is unacceptable given the balancing of the various considerations. The size and variety of spaces created with varying exposure to sunlight access are acceptable.

THE AMENITY IMPACTS TO THE EAST

64. We have already made findings about visual bulk impact to the east and the interface with the properties on the opposite side of Larch Street. The residents of No. 2 Larch Street and No. 5 Olive Street, as the immediately abutting properties, are concerned about the extent of overshadowing of their back gardens and noise impacts associated with the carpark entrances and the location of plant and services.
65. The acceptability of the amenity impacts varies for each of these two properties. This is because their interfaces differ from a town planning perspective. No. 5 Olive Street has a residential interface with the site as the part of the site that is No. 3 Olive Street has a residential zoning. No. 2 Larch Street has a commercial/residential interface as the adjacent part of the site has a commercial zoning. The parties generally agreed that the commercial interface to No. 2 Larch Street has a tempering effect on both the consideration of the amenity impacts on No. 2 Larch Street and on the consideration of the acceptability of the built form in proximity to No. 2 Larch Street. The acceptability of the built form in proximity to No. 5 Olive Street and its consequential amenity impacts is a more significant consideration as there is a residential to residential interface condition from a planning perspective.

Noise

66. We do not share the concerns about noise impacts. The car park entrances are appropriately located on the side street frontages as main road frontages, including with a tram route that forms part of the principal public transport network, are not generally considered suitable where an alternative access point exists. All plant and equipment must comply with State Environment Protection Policy N-1, which sets noise standards for plant equipment in proximity to nearby sensitive uses.

Overshadowing

67. The clause 55 Overshadowing objective applies to No. 5 Olive Street as it is a residential zone to residential zone interface. The Commercial 1 Zone decision guidelines require consideration of ‘the overshadowing’ as a result of building or works affecting adjoining land in a General Residential Zone (i.e. No. 2 Larch Street).
68. Mr Glossop’s evidence identified that, using the overshadowing standard in clause 55, the extent of shadow cast onto No. 5 Olive Street complies with the relevant standard, but the extent of shadow cast onto No. 2 Larch Street does not. This is because the small size of the open space area combined with the amount of existing shadow cast onto the back garden of No. 2 Larch Street already does not comply with the overshadowing standard. Hence, the standard suggests that the amount of sunlight should not be further reduced.
69. During Mr Glossop’s evidence we were provided with an illustration of the extent of shadow cast at 3pm in order to understand which levels of the building are causing the shadow cast onto these two adjoining residential properties. The southeast corner of the northern wing is the section of the building that is causing the proposed shadow. No. 2 Larch Street is affected by the shadow cast by levels 4, 5 and 6 and No. 5 Olive Street is affected by the shadow cast primarily by levels 5 and 6.
70. Clause 55 requires consideration of the hours between 9am and 3pm at the September Equinox. The shadow diagrams illustrate that there is no or minimal impact between 9am and 2pm. Hence, the only significant shadow impact is at 3pm. This is an acceptable impact as it is only one hour of the range to be considered; the two residential properties are in a neighbourhood centre where increased development is encouraged; and the most affected property is at the interface between a residential and commercial zone where a tempering of their amenity expectations is allowed for.

Overshadowing of rooftop solar panels in Olive Street

71. The residents want the proposal to be assessed in terms of its impact upon the existing solar panels at Nos. 7, 10 and 13 Olive Street. They submit this assessment should consider the relevant planning practice note as well as the Tribunal decision of John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258 (the John Gurry decision).
72. At the outset, we agree with the applicant that there is no specific requirement in the planning scheme to consider this impact as the Commercial 1 Zone decision guidelines refer to ‘adjoining lots’:

The impact of overshadowing on existing rooftop solar energy facilities on dwellings on adjoining lots in a General Residential Zone ....

(underlining is our emphasis).

73. Nevertheless, we have decided to also make the following findings:
    • Planning Practice Note 88^[12] contains a number of considerations when assessing the overshadowing of an existing rooftop solar energy facility (solar panels). These include whether the solar panels on an adjoining lot are appropriately located; the extent and effect of overshadowing on the solar panels; whether the new development meets the side and rear setback in north facing windows standards for residential development under clause 55; and whether the protection of the existing solar panels will unreasonably constrain or compromise the proposed new development.
    • Planning Practice Note 88 and the John Gurry decision also contain considerations about the type of solar system, how it operates and hence the extent of impact. For example, a multiple string system is less affected by shading than a single string system; and some system features can operate with partial shading.
    • In this case, the residents have provided no detail of the type of the solar panel systems, how they operate and what the extent of impact is anticipated to be.
    • In the amended plans of this proposal, there are two sets of shadow diagrams. The Equinox shadow diagrams illustrate the extent of shadow cast onto neighbouring private open space areas. The winter solstice shadow diagrams illustrate the extent of shadow cast onto the proposed communal open space areas. Of assistance to this particular issue, the illustrated winter solstice shadow diagrams also indicate the extent of shadow cast onto neighbouring properties. Ms Hicks referred to the winter solstice shadow diagrams, pointing out that No. 7’s solar panels are ‘clearly affected’ at 3pm on Drawing No. TP4.02, which means the residents feel it is reasonable to infer that the solar panels at Nos. 10 and 13 will be affected at the same scale and intensity at 3pm.
    • We orally noted during the hearing that the John Gurry decision considered the impact of overshadowing at the September Equinox rather than the winter solstice. The John Gurry decision found there was no overshadowing of the solar panels at the Equinox, hence the overall impact of shadow cast by the proposal was found to be acceptable (i.e. throughout the year including the winter solstice). The residents acknowledged that the Equinox shadow diagrams of this proposal demonstrate that the property at No. 7 is not overshadowed. On this basis, it is reasonable to infer that the solar panels at Nos. 7, 10 and 13 are also not overshadowed.
    • Applying the Equinox finding in the John Gurry decision, the overall impact of the shadow cast by this proposal is ‘reasonable’ (to use the words in Planning Practice Note 88) and therefore acceptable.

THE PARKING PROVISION AND TRAFFIC GENERATION

74. Following the circulation of the substituted amended plans prior to the hearing, the Council amended its grounds of refusal removing the grounds that expressed concern about the reduced car parking provision, the commercial deliveries and the traffic generated by the proposal. However, the neighbours remain concerned about the amenity impact resulting particularly from the supermarket parking and traffic in the surrounding street network.

Parking provision

75. The car parking required by the planning scheme to be provided for the residential apartments and the supermarket is contained within the proposed basement levels. The amended plans exceed the supermarket car parking requirement by three car spaces. The applicant advises that, if we accept the Revision A plans, the floor space of the supermarket increases slightly. This means the car parking requirement increases, but this continues to be met because of the available surplus three car spaces. In other words, the supermarket carpark provides the required car parking for the supermarket floor area based on the Revision A plans. As we are supportive of the changes contained in the Revision A plans, the proposal remains acceptable in terms of the supermarket car parking because all of the required car parking continues to be provided.
76. The car spaces for the supermarket and for the residential apartments are provided in separate basement levels with separate points of access. This means the supermarket car parking is accessed from Larch Street and the residential car park is accessed from Olive Street. We find the location of these entries are acceptable. The east side of the Olive Street basement entry is designed to have five metre long glazing in it. We explored the necessity for this during the hearing, and are satisfied glazing of that length is not required for sight line purposes. Hence, it is preferable for the northern half to be constructed of a solid structure, providing further solid separation between the proposal and No. 5 Olive Street. The residential basement door is set back about six metres from Olive Street so a car can be on the site whilst waiting for the door to open. Ms Dunstan advises the basement door could be recessed further in. This is not necessary with the northern half of the glazing made solid.
77. Six residential visitor car spaces are provided in the supermarket basement level B2, which is the middle of the three basement levels and the lower of the two supermarket basement levels.

B2 basement plan with visitor spaces highlighted

78. These car spaces are not required by the planning scheme. Whilst we agree with the neighbours that there is noticeable demand for on-street parking in both Larch and Olive Streets, there is no requirement to provide visitor parking in this proposal. We are not persuaded these particular spaces are acceptable from a design or a management perspective.
79. The front of these visitor car spaces forms the boundary between the commercial and residential zoning of the site. The planning scheme does not allow any supermarket car parking on the residentially zoned land. The above plan illustrates the visitor parking is integrated with the supermarket parking. We questioned how only residential visitor parking would be enforced on these spaces. Signage was suggested identifying that they are for visitors only. We are not persuaded signage is sufficient to ensure compliance with the planning scheme. Ms Dunstan also identified that access to these spaces would need to be managed outside of the supermarket operating hours. There may need to be an intercom system at the Larch Street entrance/exit, which she considers can be provided. However, Ms Dunstan also quantified this by pointing out that these car spaces are not required under the planning scheme.
80. If any visitor car parking is to be provided, an alternative design and the detail of the management regime should be re-considered.

Traffic generation

81. A direct consequence of providing the required car parking for this proposal is that this car parking will generate traffic in the adjacent streets, which includes Larch Street and Olive Street. In general terms, we cannot say this traffic is unacceptable as it is a direct consequence of complying with the planning scheme’s car parking requirements. However, it is also appropriate to consider the amenity and safety of the traffic movements through the surrounding area.
82. During the processing of the permit application and the initial stages of processing of this VCAT review application, VicRoads was concerned about the acceptability of the traffic impact upon each of the intersections of Larch Street and Olive Street with Hawthorn Road. Ms Dunstan gave evidence that a SIDRA analysis and a gap analysis were prepared and provided to VicRoads prior to this hearing. VicRoads has subsequently advised the Tribunal that it no longer has any objection to the proposal as a result of these analyses. Ms Dunstan points out both intersections maintain a level A criterion and described the level of saturation as excellent. Her view is the impact on the safety of these intersections is minimal.
83. Ms Dunstan described Larch, Olive and the other nearby residential streets as having a ‘grid network’ which means she considers they will carry similar traffic volumes. The Council provided its internal traffic engineering comments received during the permit application process and in response to Ms Dunstan’s expert evidence statement. The Council’s submission highlights the City Futures (Strategic Transport) comment seeking a one-way slow point in Larch Street, east of the proposal, ‘to discourage vehicles rat-running’. The Council did not ask Ms Dunstan about this during the hearing. When the neighbours asked about it, Ms Dunstan advised she does not agree this is necessary as the supermarket traffic will be predominantly local traffic and ‘a single lane treatment won’t assist the situation’. In the absence of any evidence to the contrary, particularly from the Council, we accept Ms Dunstan’s evidence about this.
84. A concern was expressed in the internal traffic engineering comments about the number of casualty accidents that have occurred. Whilst the overall numbers may appear to be high, the detail provided in Ms Dunstan’s evidence illustrates that these accidents are spread over a broader area than just the intersections of Hawthorn Road with Larch and Olive Streets. The majority of the accidents have occurred in Glen Huntly Road or at the intersection of Hawthorn and Glen Huntly Roads. The combination of Ms Dunstan’s evidence, the SIDRA analysis and the gap analysis of each of the intersections, and VicRoads’ support for the proposal satisfies us that no unacceptable traffic safety issues arising as a result of this proposal have been demonstrated.
85. The proposal to place the commercial traffic activity on Larch Street is an appropriate and acceptable planning outcome. It is an appropriate outcome because this street is wider than Olive Street, and there is a greater extent of commercial frontage on both sides of the west end of Larch Street that already creates a mixed character. The Revision A plans include the orientation of the loading bay at an angle upon entry from Larch Street. This is a good design outcome as it is likely to limit the number of commercial vehicles utilising the east end of Larch Street. Ms Dunstan gave evidence this angled design assists in making the Hawthorn Road and Larch Street intersection the preferred point of access to the loading bay.

CONCLUSION

86. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

^[1] The submissions and evidence of the parties, the 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.

^[2] Clause 22.07

^[3] Clause 21.03-5

^[4] Clause 22.07-2

^[5] Clause 22.07-2

^[6] Clause 22.07-2

^[7] Paragraph 22 of Ms Hicks’ submission.

^[8] Refer to the zoning map extract on page 5 of these reasons.

^[9] Dwg Nos. VC1.02, VC1.03 & VC 1.04, all Rev A and dated 16/08/2019

^[10] Refer to paragraphs 19 and 25 of Bewhite Properties

^[11] Schedules 15 (Johnston Street Activity Centre) and 21 (Bridge Road Activity Centre) of the Design and Development Overlay in Yarra Planning Scheme

^[12] Planning considerations for existing residential rooftop solar energy facilities. Planning Practice Note 88. October 2018.