VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

/ vcat reference No. P1788/2014
Permit no. MV/19743/2008

CATCHWORDS

Section 87A of the Planning & Environment Act 1987; Moonee Valley Planning Scheme; General Residential Zone Schedule 1, Apartment Building; Amendments to Plans; Internal Amenity; Car parking rates
APPLICANT / Caydon Flemington Pty Ltd
RESPONSIBLE AUTHORITY / Moonee Valley City Council
REFERRAL AUTHORITY / VicRoads and Public Transport Victoria
RESPONDENTS / Deirdre Lampard, Tony Apostolou, Raquel Martinez and others
SUBJECT LAND / 1 Ascot Vale Road, Flemington
WHERE HELD / Melbourne
BEFORE / Katherine Paterson, Member
HEARING TYPE / Hearing
DATE OF HEARING / 28 and 29 January 2015
DATE OF ORDER / 17 April 2015
CITATION

Order

1  Leave is given to the permit applicant to substitute for the permit application plans, the following plan filed with the Tribunal:

·  Prepared by: / DKO Architects (VIC) Pty Ltd
·  Dated: / December 2014
·  Drawing numbers: / 11099/TP/2006 – 11099/TP/2028 inclusive and 11099/TP/3001 to 11099/TP/3004 inclusive, all revision A.

2  The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987, Planning Permit No. MV/19743, issued by the responsible authority in respect of the subject land, is amended as follows.

3  What the permit allows is amended to read as follows:

The permit allows the construction of a multi storey building for dwellings, serviced apartments, food and drink premises, convenience shop, a reduction in car parking, alteration of access to a road in a Road Zone category 1 and associated works

4  Conditions in the permit are amended as follows:

(a)  Condition 1 is amended to read:

Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans prepared by DLO Architects dated December 2014 (drawing numbers 11099/TP/2006 – 11099/TP/2028 inclusive and 11099/TP/3001 to 11099/TP/3004 inclusive, all revision A) but modified to show:

(a)  The material palette altered to use the originally approved materials;

(b)  The barrier to the private open space areas of the five lower ground floor dwellings must be clearly shown on the elevations;

(c)  Full length windows and sliding doors to all apartments;

(d)  Screening where required to prevent internal overlooking between the balconies;

(e)  Measures to allow natural ventilation of dwellings via corridors;

(f)  Any changes as a result of the requirements of VicRoads;

(g)  Any changes required by the Department of Infrastructure (Public Transport Division);

(h)  The location and where necessary the screening of all external plant and equipment including, but not limited to service units for heating, cooling and hot water, solar panels, television antennae and communication devices, service metres, car park mechanical exhaust and ventilation;

(i)  Provision of shower and change facilities in accordance with Clause 52.34;

(j)  Provision of traffic calming measures to provide safe and efficient access to and egress from the subject site;

(k)  The location of airlocks or other wind reduction measures for the central atrium, which must be designed by a suitably qualified expert;

(l)  Details of the corner treatment at the intersection of Ascot Vale Road and Epsom Road to show adequate sightlines across the corner for traffic on adjacent roads without compromising walking comfort for pedestrians as a consequence of wind speed;

(m)  The location of ESD measures outlined under condition 2;

(n)  A planter box along the northern boundary of the land sufficient for the retention of trees to be retained and the proposed canopy trees.

(b)  Condition 3 is amended to read:

3  The landscape plan by LBD Design dated October 2014 shall be endorsed to form part of the permit concurrent with the endorsement of plans under condition 1.

The landscaping must be implemented in accordance with the plans and thereafter maintained to the satisfaction of the Responsible Authority.

(c)  Condition 8 is amended to read:

8  Before the occupation of the development, unless otherwise agreed to in writing by the responsible authority, the owner must submit plans showing the location and details of a pedestrian crossing on Ascot Vale Road to the Responsible Authority and VicRoads for approval.

(d)  A new condition 8A is included as follows:

8A If VicRoads provides its consent under condition 8, the owner must, at its expense, arrange for and complete the construction of the pedestrian crossing generally in accordance with the plans approved under condition 8. the construction of the pedestrian crossing must be completed prior to the occupation of the permitted building or at such other time approved by the Responsible Authority and VicRoads.

(e)  A new condition 8B is included as follows:

8B The owner need to construct the pedestrian crossing in the event that VicRoad’s response to the owner’s request for consent in condition 8 is that a pedestrian crossing is not necessary or appropriate to be constructed within the frontage of the land to Ascot Vale Road.

(f)  Condition 37 is amended to read:

37  Prior to the occupation of the building, a car park management plan must be prepared and submitted to the Responsible Authority for approval. When approved the management plan will be endorsed and form part of this permit. The car park management plan must detail:

·  Access arrangements to both the shared and secured car park;

·  Security measures for the proposed car parks;

·  Times of access to the shared car park;

·  Management of the shared car park during race days.

The areas set aside for the parking of motor vehicles and bicycles and associated access lanes shown on the endorsed plans must be available for use and must be kept available for these purposes at all times in accordance with the car park management plan to the satisfaction of the responsible authority.

(g)  Condition 42 is amended to read:

42 No more than 60 patrons are permitted within the food and drink premises a any one time.

(h)  A new condition 44 is included as follows:

44 The conference centre is to only be used in conjunction with users of the serviced apartments.

(i)  A new condition 45 is included as follows:

45 The medical centre may only operate between the hours of 8am to 6pm Monday to Friday

(j)  A new condition 46 is included as follows:

46 No more than one medical practitioner may be present at the medical premises at any one time except with the consent of the responsible authority.

5  The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

6  The responsible authority is directed to endorse amended plans reflecting the amendments to the permit.

Katherine Paterson
Member

APPEARANCES

For Applicant / Mr J Cicero, solicitor of Best Hooper Solicitors
He called the following witnesses:
·  Mr S Hunt, traffic engineer of Cardno Victoria Pty Ltd
·  Mr M Bastone, Town Planner, Urbis Pty Ltd
·  Mr J Linardi, Architect, dKO Architects Pty Ltd.
For Responsible Authority / Mr G Tobin, solicitor, Harwood Andrews Solicitors.
For VicRoads / No appearance.
For Public Transport Victoria / No appearance.
For Deirdre Lampard and Tony Apostolou, / Both in person.
For Raquel Martinez and others / No appearance.

INFORMATION

Description of Proposal / Construction of a 23 storey mixed use building for dwellings, service apartments, conference room (for use by the users of the service apartments), convenience store, medical centre and food and drink premises.
Nature of Proceeding / Application under Section 87A of the Planning and Environment Act 1987 – to amend a permit issued by the Tribunal
Zone and Overlays / General Residential Zone Schedule 1. Epsom Road and Ascot Vale Road are both included within a Road Zone Category 1.
Permit Requirements / Clause 32.08-1 – Use of land for accommodation, convenience shop and food and drink premises; Clause 32.08-4 - Construction of two or more dwellings on a lot in GRZ; Clause 32.08-6 - Construct a building and construct and carry out works for a section 2 use; Clause 52.06-3 Reducing the parking requirement; Clause 52.09 – Create or alter access to a Road Zone Category 1.
Land Description / The subject site is a triangular shaped lot with an area of approximately 3700 square metres, and is currently vacant. The subject site has frontage to Epsom and Ascot Vale Roads and the narrower southern end of the lot ends at the roundabout intersection of Epsom, Ascot Vale and Racecourse Roads.
Tribunal Inspection / 29 January 2015, accompanied by Mr Tony Apostolou. An inspection of an apartment and common living areas of 311 Burwood Road was conducted on 3 February 2015. This inspection was accompanied by the developer of this proposal.
Cases Referred To / Oz property Group (Flemington) Pty Ltd v Moonee Valley CC (Includes Summary) (Red Dot) [2014] VCAT 397 (8 April 2014); Flemington Development Pty Ltd v Moonee Valley CC [2010] VCAT 1760 (3 November 2010).

REASONS[1]

What is this proceeding about?

1  This is an application to amend a permit issued at the direction of the Tribunal pursuant to Section 87A of the Planning and Environment Act 1987.

2  This is the second time an amendment to the endorse plans has been sought by the Tribunal, with the Tribunal approving an amendment (under secondary consent) to the proposal in 2014.[2]

3  Mr Tobin, on behalf of the Responsible Authority provided the Tribunal with this useful summary of the changes now sought by the permit applicant:

Use or Development Component / Approval under Permit and Endorsed Plans as at January 2015 / Proposal before VCAT – January 2015 / Change sought
Building height / 71.1 metres / 71.1 metres / Unchanged
Building levels / 21 Levels / 23 levels / + 2 levels
Floor to ceiling heights / 3 metres / 2.8 metres / - 0.2 metre per level and ground reduced by 1 metre
Total dwellings / 300 dwellings / 346 dwellings / + 46 dwellings
·  1 bedroom / 157 dwellings / 244 dwellings / + 87 dwellings
·  2 bedroom / 139 dwellings / 98 dwellings / - 41 dwellings
·  3 bedroom / 4 dwellings / 4 dwellings / Unchanged
Home offices / 6 Home offices / 0 Home offices / - 6 Home offices
Serviced apartments / 81 Apartments / 63 Apartments / - 18 apartments
Restaurant / 1 Restaurant 152m²/ 51 seats / Removed / - 1 Restaurant/ 51 seats
Conference room / 0 / 116m² / + 116m²
Convenience store (area) / 78m² / 140m² / + 62m²
Medical Centre / 0 / 1 practitioner, 100m² / + 1, 100m²
Food and drink premises (area) / 641m²/190 seats / 316m²/60 seats / - 325m²/-130 seats
Car parking / 426 spaces / 403 spaces (statutory reduction of 43 spaces) / - 23 spaces

4  At its meeting of 16 December 2014, Council resolved not to support the proposed amendment. Essentially Council was concerned that the proposed amendment would result in a poor level of internal amenity for the future occupants of the building. They were also concerned that the proposal did not provide adequate parking for the building. Council were also concerned about the wording of condition 8 of the permit, which requires the provision of a pedestrian crossing in Ascot Vale Road.

5  Whilst changes to condition 8 did not form part of the application, the permit applicant consented to me including the condition in the amendment, which was formalised in my order of 29 January 2015. In the same order I provided an opportunity for VicRoads to make a written submission on the draft rewording of this condition. Council and the permit applicant agree on a proposed wording of the revised condition, however, VicRoads disagrees with the approach taken by these parties.

6  A number of residents submitted statement of grounds regarding the proposed amendments. Whilst the majority share Council’s concerns, they are also concerned about the increase in the number of dwellings and the lack of dwelling diversity.

7  The key questions for determination in this matter are:

·  Is the increase in the number of dwellings acceptable?

·  Are the changes to the commercial land uses acceptable?

·  Are the changes to the overall built form acceptable?

·  Will the proposal provide a sufficient level of internal amenity for the occupants of the dwellings?

·  Does the proposal provide adequate parking for the development?

·  What is the appropriate wording for condition 8?

8  To the extent that other issues were raised by the parties during the hearing, I consider these matters are peripheral to the key issues in this case and do not require specific consideration in making this decision.

9  I have decided to allow the amendment for the following reasons:

·  The proposal does not substantially effect the external appearance of the building;

·  The proposal will provide an acceptable level of internal amenity for the future occupants of the building; and