VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

/ vcat reference No. P1136/2016
Permit Amendment Application no.TPA/38620/B

CATCHWORDS

Section 82 of the Planning & Environment Act 1987. Monash Planning Scheme. General Residential Zone, Schedule 2. Amendment to permit. ‘Reconstruction’ of demolished building. Streetscape presentation. Amenity.
APPLICANTs / Eman Armanous & Others
RESPONSIBLE AUTHORITY / Monash City Council
RESPONDENT / The Wang Family Trust
SUBJECT LAND / 229 Huntingdale Road and 48 Henry Street, Oakleigh
WHERE HELD / Melbourne
BEFORE / Cindy Wilson, Member
HEARING TYPE / Hearing
DATE OF HEARING / 30 November 2016
DATE OF ORDER / 6 January 2017
CITATION / Armanous v Monash CC [2017] VCAT 42

Order

1  The decision of the Responsible Authority is set aside.

2  In application TPA/38620/B no amendment to the permit is granted.

Cindy Wilson
Member

APPEARANCES

For Eman Armanous and Others / Mr Mark Stanojevic, town planner of ASK Planning Services Pty Ltd
For Monash City Council / Ms Sally Moser, town planner of Moser Planning Services Pty Ltd
For The Wang Family Trust / Ms Aileen Chin, town planner of Perry Town Planning Pty Ltd

INFORMATION

Description of Proposal / The permit currently allows the construction of dwellings comprising the conversion of a church hall and in a new three storey building. The amendment sought is to reconstruct the church hall to accommodate dwellings.
Nature of Proceeding / Application under section 82 of the Planning and Environment Act 1987
Zone and Overlays / General Residential Zone, Schedule 2
No overlays
Permit Requirements
Planning Scheme
/ Clause 32.08-4 A permit is required to construct two or more dwellings on a lot.
Monash Planning Scheme
Relevant Scheme, policies and provisions / Clauses 9, 10, 11, 15, 16, 18, 21, 22.01, 22.04, 22.05, 32.08, 55 and 65.
Land Description / The review site comprises two lots facing Huntingdale Road and one lot facing Henry Street, Oakleigh. It has a site area of 1630 square metres, a frontage of 30.48 metres to Huntingdale Road and a frontage of 15.24 metres to Henry Street. The site is currently vacant having previously been occupied by a church, associated hall and car parking.
Tribunal Inspection / I inspected the site and surrounds on 21 December 2016 including a view from 50 Henry Street.
Cases Referred To / Armanous and Ors v Monash CC [2011] VCAT 1978

REASONS[1]

What is this proceeding about?

1  A permit was granted in 15 November 2011 for the construction of dwellings on a site comprising 229 Huntingdale Road and 48 Henry Street, Oakleigh. The permit allowed the conversion of the existing church hall facing Henry Street to dwellings and the construction of a three storey building (plus basement) facing Huntingdale Road.

2  The Wang Family Trust applied to Monash City Council to amend the permit to allow reconstruction of the church hall to provide for dwellings instead of converting the existing building. Council approved the application for this amendment.

3  Three neighbours seek a review of that decision.

4  The Tribunal must decide whether the amendments proposed to the permit are acceptable. Having regard to the provisions and policies of the Monash Planning Scheme, my site inspection and the submissions of the parties, I have decided to set aside the Council decision and direct that no amendment to the permit be made.

5  I set out my reasons under the following headings:

·  Background and current permit;

·  The proposed amendment and Council decision;

·  The position of the parties, in summary; and

·  Tribunal findings.

Background and current permit

6  A proposal to convert an existing church hall into eight dwellings and construct a three storey apartment style building to accommodate a further 16 dwellings on the review site was supported by Council in January 2011. Following an objector appeal against the decision of Council, the Tribunal[2] directed a permit be granted subject to conditions.

7  The permit issued on 15 November 2011 allows

The construction of a dwellings comprising the conversion of the existing church hall and the construction of a three storey buildings plus basement and the construction of access to a road within a Road Zone Category 1 in accordance with the endorsed plans.

8  Plans pursuant to this permit were endorsed on 15 May 2012.

9  An amendment to the permit was granted by Council (TPA/38620/A) on 2 June 2014 that included a number of changes including an additional two studio dwellings in a third level largely contained within the attic/roofspace of the existing church hall. Plans pursuant to the amended permit were endorsed on 16 December 2014.

10  Council approved further amendments to the plans and these were endorsed on 10 November 2015. These plans represent the current endorsed plans.

11  Two extensions to the permit have been granted by Council and the permit currently allows commencement of development by 9 November 2017.

The proposed amendment and Council decision

12  An amendment to the permit was sought on 3 March 2016. The amendments sought, as described by Council, include:

·  Reconstruction of the existing church hall building (‘Henry Street building’) in the same building envelope and footprint.

·  Removal of reference on the plans to retaining the existing church hall.

·  Alteration to the layout of two dwellings (G15 and G16) in the Henry Street building.

·  Creation of private open space in the setback to Henry Street and reduction in size of upper level balconies facing Henry Street.

·  Lowered finished floor levels of some of the dwellings in the Henry Street building.

·  Modifications to the external stair for the Henry Street building.

·  Changes to external finishes of the Henry Street building.

·  Changes to windows in the Henry Street building.

·  Some minor changes in the three storey building facing Huntingdale Road.

13  The church and church hall on the site were demolished in April 2016.

14  Following advertising of the application for amendment to the permit, eight objections were submitted to Council. The Council on 19 May 2016 issued a Notice of Decision to Amend a Permit subject to the following:

·  An altered preamble to the permit to refer to the reconstruction of the existing church hall

·  Condition 1 amended to delete current parts a) to g) and include instead:

a)  Fencing within the Henry Street frontage having a height of no greater than 1.5 metres and constructed of timber picket styling.

b)  Enhanced details of screens to habitable room windows to prevent overlooking in accordance with the requirements of Clause 55.04-6.

c)  Reference to “Kiosk” on plans modified to read “Electricity Substation Kiosk”.

·  A new condition 27

No less than 1 car space must be provided on the land for each one and two bedroom dwelling. Any future subdivision of the development must provide allocation of car parking on title in accordance with this requirement including all visitor car parking located within the common property.

·  Renumbering of remaining conditions.

15  Three of the objectors to the application to amend the permit lodged a joint application under section 82 of the Planning and Environment Act 1987 to review the decision by Council.

the position of the parties, in summary

16  I summarise the submissions made by the respondent, the applicants and the Council.

Position of the respondent

17  The respondent says it would be inappropriate for the Tribunal to take a ‘fresh’ look at the proposal since the application is for amendments only. It is submitted that approval has already been granted for this development and the fundamental difference in this application is that permission to reconstruct the Henry Street church hall structure occupying the same building envelope is sought instead of retaining the building. Building advice obtained by the respondent indicates that the retention of existing church walls and footings of the church hall whilst constructing the new works would result in safety risks and costs to the project. It says the current permit preamble that refers to conversion of the existing church hall commits the respondent to a redevelopment with unfair costs and onerous complexity.

18  The respondent says there is existing approval for the development and the amendments now sought accord with the decision of the Tribunal in Armanous and Ors. To support this view particularly in relation to neighbourhood character, the respondent refers to various findings of the Tribunal in Armanous and Ors[3] including

I acknowledge the residents’ submissions that the existing church hall is not in keeping with the character of Henry Street. This street is comprised primarily of single-storey detached dwellings from the Inter war and later periods. The hall, however, is a longstanding element within the street. The fact that it is of a different scale, siting and appearance from the remainder of the buildings in the street should not disqualify it from being converted to a residential use. Whether it is retained as a church hall, or modified to accommodate dwellings as proposed, will not significantly alter its impact from a neighbourhood character perspective.

The retention of the existing hall means that there will be minimal change to the Henry Street streetscape and the character of the wider neighbourhood. Any changes that do arise from the proposal will enhance the appearance of the existing building, which is presently somewhat austere and utilitarian. These changes include the provision of windows, and a reduction in the building envelope to allow for the creation of balconies. Although the building will still present as an anomalous element within the street, it will be modified to have a more ‘residential’ appearance, in recognition of its proposed use. The front setback will remain unchanged and will be landscaped to contribute to the garden character of Henry Street.

19  In support of the amendments sought the respondent makes the following submissions:

·  The proposal incorporates only limited amendments compared to the built form approved in Armanous and Ors and issues of neighbourhood character, built form, setbacks and amenity impacts were found satisfactory by the Tribunal.

·  The materials and finishes will remain the same as previously proposed as will the number of apartments and car spaces and the vehicle access arrangements.

·  Potential overlooking from windows and balconies of the new building facing Henry Street is addressed with appropriate screening ensuring the relevant clause 55 standard is met.

·  The new building will not increase the site coverage of the original church hall nor will it change the setbacks to boundaries, other than an external stairwell on the north side. As the stair is adjacent to a garage on the adjoining site, there will be no detriment to amenity of the adjoining property arising from this new element.

·  The visual impact of the structure will be very similar to what has historically existed and the proposed amendments will not result in a less desirable neighbourhood character outcome than previously existed on the land.

Position of the applicants

20  It is the submission of the applicants that the building now proposed on the Henry Street part of the review site is too intense having regard to the existing conditions, built form character and the fact that the original building has been demolished. They say there are no longer circumstances where the conversion of an existing constrained building that might justify variation to standards for residential development or a built form that is inconsistent with neighbourhood character.

21  The applicants say simply because there was once a non-residential church hall on the land does not mean development of a now vacant lot can simply replicate an out of character form and then justify its shortcomings on that basis alone. In their submission the new building fails to respect the neighbourhood character and amenity of Henry Street and is an overdevelopment of the site and in support of that position make the following points:

·  There are limited side setbacks and their use for pathways means there is no opportunity landscaping.

·  The use of the front setback for secluded private open space limits landscaping opportunities to contribute to the streetscape.

·  Side setbacks do not meet B17 standards and the side elevations are bulky, exacerbated by the extensive screening proposed.

·  The building is too imposing to the streetscape.

·  Poor standard of internal amenity arising from excessive screening, small room size, narrow pedestrian paths, poor access to storage units and poor amenity to the top floor studio apartments.

22  The applicants agree that submissions must be confined to changes associated with this proposal and they do not pursue issues about the three storey building facing Huntingdale Road, the car parking provision or other matters that are not part of the amendments sought.

Council position

23  Although acknowledging that the church hall no longer exists, Council says the proposal retains the development concept on the existing endorsed plans and proposes no substantive changes to the overall building form.

24  In support of the decision to approve the amendments sought, Council makes the following submissions:

·  The overall form and scale of the proposal remains essentially the same as previously approved by Council and the Tribunal in Armanous and Ors.

·  There have been no changes to the Monash Planning Scheme that would warrant different consideration of the proposal. Amendment C125[4] proposes to include the review site in a General Residential Zone Schedule 3 with some variations to the clause 55 standards but even if approved, Council says this would not remove the development rights conferred by the current permit.

·  An existing permit for the building envelope (except for the external stairs) is in place and proposed amendments will not alter setbacks or building height.

·  The building form retains the same appearance of a two storey building with a gable roof line to Henry Street with new windows that will be a positive change to the front façade.

·  General compliance with current planning standards is retained.

·  The site is unique and the design (which is already approved) is appropriate having regard to the residential opportunity of the land which because of its size, location and history, warrants an outcome different to the existing area.