VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P68/2012
PERMIT APPLICATION NO. TP-2011-96
CATCHWORDS
Section 82 of the Planning & Environment Act 1987; Melbourne Planning Scheme; Multi dwellings; Policy; Neighbourhood Character;
Impacts on amenity of adjoining properties, Internal Amenity
APPLICANT
Theodore and Jacqueline Byard, Kellie Brodie,
David Olive, Carlo Ursida, Alan and Frances
McKay and Others
RESPONSIBLE AUTHORITY
Melbourne City Council
RESPONDENTS
Kae One Property Group Pty Ltd and Andrea Carr
SUBJECT LAND
12-14 Bayswater Road Kensington
WHERE HELD
Melbourne
BEFORE
Katherine Paterson, Member
HEARING TYPE
Hearing
DATE OF HEARING
15 August 2012
DATE OF ORDER
25 September 2012
CITATION
ORDER
1
2
Leave is given to the permit applicant to substitute for the permit
application plans, the following plan filed with the Tribunal:

Prepared by:
BD Design Group

Dated:
27 June 2012

Drawing numbers:
TP01, TP02, TP03, TP04, TP05, TP06, TP07,
TP08 all revision G
Pursuant to section 60 of the Victorian Civil and Administrative Act 1998,
the following persons are joined as a party to the proceeding:
Ms A Carr
3
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:
Kae One Property Group Pty Ltd
4
The decision of the responsible authority in relation to permit application no.
TP-2011-96 is set aside. No permit is granted.
Katherine Paterson
Member
APPEARANCES
For Theodore and
Jacqueline Byard, Carlos
Ursida, Alan and Frances
McKay and others
All in person
For Andrea Carr
In person
For Responsible Authority Mr Andrew Clarke, Town Planner, Clarke Planning
For Kae One Property
Group Pty Ltd
Mr G Peake, Barrister by Direct Brief. He called the
following expert witnesses:
 Colleen Petersen, Town Planner, Ratio
Consultants
 Charmaine Dunstan, Traffic Engineer, Traffix
Group
 John Patrick, Landscape Architect, John Patrick
Landscape Architects
 Matthew Lane, Architect, BD Design Group Pty
Ltd
VCAT Reference No. P68/2012
Page 2 of 10
INFORMATION
Description of Proposal
Construction of a three level building to contain seven
dwellings
Nature of Proceeding
Application under Section 82 of the Planning and
Environment Act 1987.
Zone and Overlays
Residential 1 Zone
Permit Requirements
Clause 32.01-4 – Construction of two or more
dwellings on a lot
Land Description
The subject site has an area of 570 square metres and
is occupied by a single dwelling
Tribunal Inspection
20 August 2012
Cases Referred To
Byard v Melbourne CC [2012] VCAT 623 (10 May
2012), Orrong Road Investment Trust v Stonnington
CC [2012] VCAT 737 (1 June 2012)
VCAT Reference No. P68/2012
Page 3 of 10
REASONS1
What is this proceeding about?
1
Kae One Property Group wish to construct a three storey apartment
building on land at 12-14 Bayswater Road Kensington. The building will
accommodate seven dwellings and an under croft car park. The design of
the building is contemporary and incorporates a number of materials and
finishes, with a flat roof. Access to the majority of the dwellings is via the
under croft car park.
2
In December 2011, the Melbourne City Council determined to grant a
planning permit for the development. It is a decision that a number of
objectors to the proposal have requested be reviewed by the Tribunal
through separate applications that are made by Mr Theodore and Jacqueline
Byard, Carlo Ursida, Alan and Frances McKay and Others.
3
The residents are concerned that the proposed development is inconsistent
with local planning policy and the neighbourhood character of the area.
They are also concerned that the development will have a detrimental
impact on the amenity of the adjoining properties and wider area through
visual bulk, overshadowing, and an increase in traffic movement.
4
Ms Carr submitted a statement of grounds following the circulation of
amended plans. She generally shares the concerns of the applicants for
review.
5
The key questions for determination in this matter are:
 Is the intensity of the proposed development consistent with the State
and Local Planning Policy Framework?
 Is the proposed design of the building an appropriate response to the
neighbourhood character of the area?
 Will the proposal have an unreasonable impact on the amenity of
adjoining properties?
 Will the proposed development provide a reasonable level of
amenity for its future occupants?
6
The Tribunal must decide whether a permit should be granted and, if so,
what conditions should be applied. Having considered all submissions and
evidence presented with regard to the applicable policies and provisions of
the Melbourne Planning Scheme, I have decided to refuse to grant a
planning permit. My reasons follow.
1
I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.
VCAT Reference No. P68/2012
Page 4 of 10
Is the scale of the development consistent with the State and Local
Planning Policy Framework?
7
State Planning Policy encourages the development of higher density
housing on sites which are located in close proximity to activity and other
employment centres and are well serviced by Public Transport.2 The
subject site is within walking distance of the Kensington Railway Station,
Trams that operate along Racecourse Road and the Newmarket Shopping
Centre. I find it is a site that is supported by State Planning Policy to be
developed for higher density housing.
8
The Melbourne City Council’s Local Planning Policy has identified areas
where growth is encouraged, such as Southbank and Docklands, and those
which are unlikely to experience a significant level of change. The
Planning Scheme identifies Kensington as an area that will experience
minimal change.3
9
There is clearly a tension between the objectives of the State Planning
Policy and Local Planning Policy Frameworks for this site. I find that
whilst the planning scheme supports the development on this site for
medium density housing, it is clear that the subject site is located in an area
that is not likely to experience substantial change.
10
Whilst the site may be developed for more intensive housing forms, I
consider that a cautious approach is required for this site to ensure that the
design of the development appropriately responds to the existing
neighbourhood character and the amenity of the area.
Is the proposed design of the building an appropriate response to the
neighbourhood character of the area?
11
The Melbourne Planning Scheme seeks to ensure that development either
respects the existing neighbourhood character or responds appropriately to a
preferred neighbourhood character.4
12
The subject site is within an area where the existing character is to be
preserved.5 In these areas the planning scheme seeks to:
Ensure that the height and bulk of new buildings, as well as new
structures, including signage, respond to site context including the
prevailing neighbourhood and heritage character.6
13
Member Sibonis recently considered an application for a dwelling at 4-6
Bayswater Road.7 In his decision he described the neighbourhood character
as:
2
Clause 16.01-2.
Clause 21.01-4.
Clause 55.02-1.
Clause 21.05-2.
Clause 21.05.
Byard v Melbourne CC [2012] VCAT 623 (10 May 2012).
3
4
5
6
7
VCAT Reference No. P68/2012
Page 5 of 10
...Bayswater Road is a varied streetscape in terms of height, siting and
style. There are examples of dwellings ranging from the Victorian
periods through to the latter part of the last century. These include
traditional cottages, multi level blocks of walk-up flats and more
recent infill ‘townhouse’ style development. Buildings are generally
of a single or two-storey height, with some examples of three-storey
flats also present within the immediate environs of the review site.
Variation in front setbacks is also evident, reflective of the diverse
dwelling styles and periods of construction.
14
Having viewed the site, I agree with Mr Sibonis that the site is located
within a varied streetscape.
15
The proposed design, which is unashamedly contemporary, does differ
substantially from other housing forms with the street, particularly the
modest Victorian cottage adjoining the site to the west. However, given the
mixed character of the area, I find that a contemporary approach to this site
is acceptable. However, care needs to be taken to ensure that the larger
form does not have a significant impact on the amenity of adjoining
properties.
Will the proposal have an unreasonable impact on the amenity of
adjoining properties?
16
Local Planning Policy states that within areas of minimal change, the
design of new buildings should ensure that the development does not
adversely affect the amenity of adjoining properties through visual bulk, a
reduction in sunlight or daylight, or through overlooking.8
Overshadowing
17
Standard B21 of the planning scheme states:
Where sunlight to the secluded private open space of an existing
dwelling is reduced, at least 75 per cent, or 40 square metres with
minimum dimension of 3 metres, whichever is the lesser area, of the
secluded private open space should receive a minimum of five hours
of sunlight between 9 am and 3 pm on 22 September.
If existing sunlight to the secluded private open space of an existing
dwelling is less than the requirements of this standard, the amount of
sunlight should not be further reduced. [my emphasis]
18
8
During the hearing, Mr and Mrs Byard disputed the accuracy of the shadow
diagrams provided, and produced a set of diagrams that they submitted
reflected the existing shadow conditions at 10am. Following these
submissions, the permit applicant produced a revised set of shadow
diagrams, which correctly labelled the legend, but made no other changes as
Mr Peake advised that they were otherwise accurate.
Clause 21.05.
VCAT Reference No. P68/2012
Page 6 of 10
19
Mr and Mrs Byard questioned the accuracy of the diagrams, as they do not
reflect the location of the fence, which is off the boundary. The drawings
show the shadow cast from the boundary, rather than the fence. This error
means that the diagram does not correctly identify the existing shadows,
and does not indicate the full impact of the development on the amenity of
the space.
20
The diagrams submitted by Mr Peake indicate that the standard is not
achieved for the proposed development at 10am. Whilst over 40 square
metres of private open space will receive daylight, the area that will receive
daylight will not have a minimum dimension of 3 metres.
21
When considering whether the standard should be varied, I am required to
consider the impact on the amenity of existing dwellings and the effect of a
reduction on the existing use of the existing secluded private open space.9
22
The private open space of Mr and Mrs Byards property is well utilised for
a variety of purposes including recreation, clothes drying and vegetable
growing.
23
Given the errors with the diagram, I am find that the impact on the amenity
of this property is likely to be greater than that shown on the plans.
However, even with the amount of shadowing shown on the plans, I find
that the proposed development will have an unacceptable impact on the
amenity of this property through overshadowing.
24
During the hearing, Mr Peake advised that should I find that the level of
impact to be unacceptable, the plan could be redesigned to reduce the
amount of shadows cast by the proposed development. The changes
required to ensure compliance with the standard were relatively minor and I
could have addressed this matter as a condition of permit, if this was the
only failing of the proposed development. Unfortunately, the design has a
number of other shortfalls, which I will discuss in detail below.
Visual Bulk
25
Visual bulk has been recently defined by the Tribunal as:
…the planning term used to describe the impression that a building
will make in its surrounds. It is incumbent upon a development to
provide appropriate setbacks, landscaping and articulation in terms of
building style, height and size to ensure that it is respectful of both the
neighbourhood character and the amenity of adjoining properties,
particularly their secluded private open space areas.10
26
9
It was common ground that the most sensitive interface of the development
is the private open space area of the Byard’s property. It is from this
vantage point that the development will be most visible, and it is this
Clause 55.04-5.
Orrong Road Investment Trust v Stonnington CC [2012] VCAT 737 (1 June 2012) at 33.
10
VCAT Reference No. P68/2012
Page 7 of 10
location that has the greatest potential to be adversely affected through
visual bulk.
27
The building will also be partially visible from Ms Carr’s and Mr Ursida’s
properties. In terms of visual impact, I consider that building will not have
a significant impact on the amenity of Ms Carr’s and Mr Ursida’s properties
due to the setbacks of the proposed development to the rear, and the relative
distance between the subject site and Mr Ursida’s property.
28
Some attempt has been made by the designers to respond to the interface
with the Byard’s property. The building has been redesigned to drop down
from a three storey building, to a two storey building and then provide
ground level open space at the rear. The landscape plan provided by Mr
Patrick in his evidence indicates that there is sufficient room for the
planting of capital pear trees which would soften the visual impact of the
development when viewed from the adjoining private open space.
29
However, I find that the design will still result in an unreasonable amount
of visual bulk when viewed from the adjoining private open space. The
attempts to mitigate this impact have not resolved the overall mass of the
building form, which has very little articulation.
30
Whilst a building of this scale and mass may be acceptable in areas where a
high level of change is anticipated, this is not the case here. This is an area
of minimal change. I consider that the backyard space areas of the
Victorian cottages to the south-west of the site should be respected by any
proposed redevelopment of the site. It would be better to have a single
storey form where the building directly adjoins the private open space of the
Byard’s property. This would have the added benefit of significantly
reducing the shadow impact of the development.
Crossover location
31
The existing crossover is located on the north-east boundary of the site. It
is proposed to relocate this crossover to the south-west boundary. The new
crossover, which will provide vehicle access to the undercroft car park, will
be in close proximity to the Byard’s front door, veranda and front gate.
32
Ms Dunstan gave evidence that the crossover and driveway has been placed
along the lowest part of the site, which is the preferred location for taking
vehicle access from a traffic engineering perspective. She submitted that
the final design of the crossover will need to meet Council’s requirements.
33
I agree with Mr and Mrs Byard that the proposed crossover will have an
unreasonable and unnecessary impact on their amenity. It would have been
better for the development to have used the existing crossover, which
directly adjoins another car park and will have little impact on the amenity
of the adjoining property to the south-west.
VCAT Reference No. P68/2012
Page 8 of 10
34
The choice of crossover location is again another indication that the
proposed development has failed to respond appropriately to the sensitive
interface of the adjoining property to the south west.
Will the proposed development provide a reasonable level of amenity for
its future occupants?
35
Access to dwellings two to seven will be via the undercroft car park. A
stairwell has been provided to access dwellings two to five, and access to
dwellings six and seven will be directly via the undercroft car park.
36
Ms Peterson, in her evidence for the permit applicant, recommended that a
condition be placed on the permit requiring the use of paving lighting and
architectural features to highlight and emphasise the sense of address for
dwellings two to seven. The landscape plan prepared by Mr Patrick shows
a variety of paving methods to provide for way-finding through the car park
to the access points of the dwellings.
37
The planning scheme seeks to ensure that dwelling entrances are not
obscured or isolated from the street or internal accessways.11
38
I consider that this standard is seeking to avoid the very scenario proposed
by the development. I am particularly concerned about the entrances to
dwellings six and seven which I find to be isolated. The access to these
dwellings, via the undercroft car park, will be dark and unsafe.
39
The need to rely on lighting, coloured doors and paving to provide a form
of way-finding is a reflection of the fact that this design has failed to
respond appropriately to this site. A better approach may have been to
rearrange these dwellings into a reverse living type of dwelling, with only
secondary entrances to the car park.
40
However, I agree with Mr Peake that this approach may not have resolved
the issues of visual bulk and may actually increase the impact on the
amenity of the adjoining properties.
Do any other matters warrant rejection of the proposal?
41
Several other matters were raised in submissions and the objections
originally lodged with the Council including traffic, loss of light, the
parking layout and storage. None provide the basis for rejecting the permit
application or requiring additional conditions. With respect to those
matters, I make the following findings:
 Loss of light. The windows potentially affected by the
development are non-habitable and therefore no additional setback
to these windows are required. Care needs to be taken with any
redesign of the proposal that the development still enables a
11
Clause 55.03-7.
VCAT Reference No. P68/2012
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reasonable amount of daylight to the habitable room windows of
the block of flats adjoining the site to the north-west.
 Increase in traffic and on street parking. I am satisfied by the
evidence of Ms Dunstan that there will not be an unreasonable
increase in traffic created by this development and that there is
sufficient on-street parking available to accommodate any visitor
parking.
 Car park layout. I am satisfied that the layout is acceptable,
including the location of the bicycle racks.
 Storage. I am satisfied that whilst six square metres of storage may
not be able to be provided for each dwelling in the location shown,
that adequate storage may be provided for each dwelling on site.
 Overlooking. If I was of a mind to issue a permit, a condition on
permit could easily address the impact caused by persons
overlooking from the first floor access way to the dwellings.
 Noise. There is no reason to suspect that the proposed
development will cause an unreasonable level of noise. I find it
unlikely that the proposed first floor access way will be used for
parties.
Conclusion
42
Whilst I have found that a contemporary style of development may be
acceptable for this site, the proposed development has failed to respond
appropriately to the sensitive interface of the property to the south-west. In
addition, the proposed entrance arrangements for the dwellings, particularly
dwellings six and seven will create a poor level of internal amenity.
43
I find that the proposed development is an overdevelopment of the site and
a complete redesign is required to address the significant shortfalls in the
design.
44
The decision of the responsible authority will be set aside.
Katherine Paterson
Member
VCAT Reference No. P68/2012
Page 10 of 10