VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST / vcat reference No. P2639/2016
Permit Application no. TPA/46599
CATCHWORDS
Section 79 Planning and Environment Act 1987; Monash Planning Scheme; Commercial 1 Zone; Design and Development Overlay; Multi-level, mixed-use development; Policy; Height.
APPLICANT / Boneng (Portman) Pty Ltd
responsible authority / Monash City Council
SUBJECT LAND / 45-49 Portman Street, Oakleigh
WHERE HELD / Melbourne
BEFORE / Bill Sibonis, Member
HEARING TYPE / Hearing
DATEs OF HEARING / 15 & 16 May, 2017
date of interim order / 17 May, 2017
DATE OF ORDER / 5 July, 2017
CITATION / Boneng (Portman) Pty Ltd v Monash CC [2017] VCAT 797

Order

1  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 substituting for the permit application plans, the following plans filed with the Tribunal:

·  Prepared by: / ADDARC
·  Drawing numbers: / TP01 – TP17
·  Dated: / 07.04.17

2  In application P2639/2016 the decision of the responsible authority is affirmed.

3  In planning permit application TPA/46599 no permit is granted.

Bill Sibonis
Member

Appearances

For Boneng (Portman) Pty Ltd / Mr N Tweedie SC and Ms E Porter of Counsel. They called evidence from:
·  Mr M Sheppard, Urban Designer of David Lock Associates (Australia) Pty Ltd
·  Mr W Bromhead, Town Planner of ratio:consultants pty ltd
·  Ms C Dunstan, Traffic Engineer of Traffix Group Pty Ltd
·  Mr B Raworth, Conservation Consultant and Architectural Historian of Bryce Raworth Pty Ltd
The evidence (photomontages) of Mr C Goss, Architect of Orbit Solutions, was tendered. Mr Goss was not called to give oral evidence.
For Monash City Council / Ms M Marshall, Solicitor of Maddocks Lawyers.

Information

Description of proposal / The construction of a seven-storey building (plus basements) accommodating shop, dwellings and associated car parking.
Nature of proceeding / Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.[1]
Planning scheme / Monash Planning Scheme
Zone and overlays / Commercial 1 Zone (C1Z)
Heritage Overlay – Schedule 67, Former ‘Plaza’ picture theatre (HO67)
Design and Development Overlay – Schedule 11, Oakleigh Major Activity Centre (DDO11).
Parking Overlay – Schedule 2, Oakleigh Major Activity Centre Area (PO2)
Permit requirements / Cl. 31.02 and 34.01-1 (use of land in C1Z for accommodation)
Cl. 34.01-4 (construction of a building and the construction and carrying out of works on land in C1Z)
Cl. 43.01-1 (demolition, the construction of a building and the construction and carrying out of works on land in HO67)
Cl. 43.02-2 (construction of a building and the construction and carrying out of works on land in DDO11)
Cl. 52.06 (reduction of the car parking requirement)
Cl. 52.07 (waiver of the loading/unloading requirement)
Relevant scheme policies and provisions / Cl. 10, 11, 11.04, 11.06, 15.01, 15.03, 16.01, 17.01, 18, 21, 22.01, 22.07, 22.13, 34.01, 43.01, 43.02, 45.09, 52.06, 52.07 and 65.
Land description / The review site is located on the north side of Portman Street in Oakleigh, and forms part of the Oakleigh Major Activity Centre. The land is rectangular in shape; it has a frontage and depth of 35 metres and 28 metres respectively. The overall site area is 977 square metres. Occupying the land is a two-storey building accommodating two shops and six dwellings. Surrounding lots support single-storey and two-storey commercial developments.
Tribunal inspection / A site inspection was undertaken after the hearing.

Reasons[2]

What is this proceeding about?

1  In September 2016, an application was made to the Monash City Council for a planning permit to construct a seven-storey building (plus basements) on the review site. The building was to accommodate one shop and 36 dwellings. Notice of the application was given and objections were received. As the Council did not decide the application within the prescribed time period, the applicant has lodged this application with the Tribunal for a review of the Council’s failure to grant a permit.

2  The Council subsequently considered the planning application. Consistent with the recommendation of its planning officers, the Council determined to deny its support. The Council’s principal concerns with the proposal relate to matters of policy, height, design, vehicle access, car parking layout, internal amenity and off-site amenity impacts.

3  Prior to the hearing, the applicant prepared amended plans of the proposal. The changes included a reduction in the number of dwellings from 36 to 33, and the provision of increased setbacks of the top floor from the boundaries. Notice of the amended plans was given in accordance with the requirements of the Tribunal’s Practice Note PNPE9 Amendment of Plans and Applications.

4  Having regard to the submissions of the parties, the key issue in this proceeding is whether the height of the proposed development is acceptable.

5  The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered the submissions and evidence, with regard to the relevant policies and provisions of the Monash Planning Scheme (‘the Planning Scheme’), assisted by my inspection, I have determined to affirm the Council’s decision. My reasons follow.

What is the relevant planning context?

6  The land forms part of the Oakleigh Major Activity Centre. There is no dispute between the parties that the proposed redevelopment of the review site in the form of a multi-level, mixed-use building is consistent with State policies which seek to direct growth (including housing) to strategic areas that are well located in respect of services and facilities. These locations include activity centres, such as is the case here. Relevant policies in this respect are detailed at clauses 11.03-2,[3] 11.06[4] and 16.01,[5] in particular, and include:

·  encouraging the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres which provide a variety of land uses and are highly accessible to the community[6]

·  encouraging a diversity of housing types at high densities in and around activity centres[7]

·  providing housing choice close to jobs and services[8]

·  supporting new housing in activity centres and other places that offer good access to jobs, services and public transport[9]

·  facilitating diverse housing that offers choice and meets changing household needs through provision of a greater mix of housing types, adaptable internal dwelling design and universal design[10]

·  locating new housing in or close to activity centres and in urban renewal precincts and sites that offer good access to jobs, services and transport[11]

·  increasing the proportion of new housing in designated locations within established urban areas and reduce the share of new dwellings in greenfield and dispersed development areas[12]

·  encouraging high density housing development on sites that are well located in relation to jobs, services and public transport[13]

·  providing a range of housing types to meet increasingly diverse needs.[14]

7  At the local level, related objectives and strategies are detailed within the Municipal Strategic Statement (MSS). Clause 21.02 sets out the key influences affecting the planning and development of the municipality. Activity centre growth is addressed at clause 21.02-4 where it is noted that high-rise development will be encouraged in the Glen Waverley Principal and Oakleigh Major Activity Centres, identifying these as the primary locations of change in the municipality. It notes that locating residential development in activity centres facilitates the creation of safer, more attractive and lively community hubs, and states that the scale of development must be appropriate to the character of the activity centre.

8  Strategies and objectives for activity centres are set out in clause 21.06 of the MSS. The Overview of this clause states activity centres are considered to be important locations for residential development, and that this will ensure that a range of housing types is available to satisfy the housing needs of the municipality’s population both now and into the future. An objective is to promote high-rise residential development within the Glen Waverley Principal and Oakleigh Major Activity Centres, to support ongoing economic prosperity, social advancement and environmental protection. Specific strategies for the Oakleigh Major Activity Centre include:

Encourage medium to high rise development (4-8 storeys) within the Oakleigh Major Activity Centre that results in integrated housing, workplaces, shopping, recreation and community services and provides a mix and level of activity that attracts people, creates a safe environment, stimulates interaction and provides a lively community focus.

High-rise development should be located adjacent to the Oakleigh railway station.

9  Clause 21.15 is specific to the Oakleigh Major Activity Centre. The key issues include enhancing the structure and function of the activity centre by supporting its continuing development as a vibrant and prosperous activity centre; developing the centre as a mixed-use activity centre incorporating commercial, cultural, civic and residential uses; and enabling increased diversity and density of dwellings in the activity centre. The framework plan which forms part of this clause shows the review site as being located within Precinct 1, Oakleigh Village. The vision for this precinct is:

To achieve high quality built form and public realm design that conserves and enhances the valued urban character of the Oakleigh Village and to encourage an appropriate mix of residential and commercial development to support the economic and social sustainability of the Activity Centre.

10  A land-use objective is to increase residential accommodation that provides housing diversity and choice, including affordable housing, within the activity centre. Related strategies include encouraging an appropriate mix of residential and commercial uses to develop within the precinct, in addition to existing retail development; and encouraging redevelopment of large sites to include high density residential dwellings.

Built form

11  Policy also seeks to achieve acceptable built form outcomes. Clause 15 addresses the built form and heritage. Objectives include achieving architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impacts on neighbouring properties.[15] The review site is affected by a site-specific Heritage Overlay (HO67 – former ‘Plaza’ picture theatre). Policy for heritage conservation has the objective of ensuring the conservation of places of heritage significance and includes strategies which encourage appropriate development that respects places with identified heritage values and creates a worthy legacy for future generations; retaining those elements that contribute to the importance of the heritage place; encouraging the conservation and restoration of contributory elements; and ensuring an appropriate setting and context for heritage places is maintained or enhanced.

12  Within the MSS is a section addressing heritage. Relevant objectives are to conserve and enhance places of cultural heritage significance in a way which contributes to the economic and cultural growth of the municipality and for the broader community; and to conserve heritage buildings and areas and allow for their sensitive redevelopment. Strategies refer to:

·  conserving places and buildings identified as having architectural, cultural or historical significance

·  ensuring that development does not adversely impact places of heritage significance

·  ensuring redevelopment and renovation of areas and places of architectural, cultural or historical significance is appropriate, of good quality and consistent with the character of the area.

13  In addition to land use, clause 21.15 details objectives and strategies for the built form the activity centre. Relevant objectives are to retain the existing strong sense of identity and traditional/cultural character of Precinct 1, and to ensure that the form and scale of buildings respect the context of the surrounds, in particular the village character of Precinct 1. The general strategies include:

·  facilitating use and development within the activity centre that supports the existing strong sense of identity and the traditional/cultural character of Precinct 1

·  encouraging the maintenance and enhancement of the traditional fine-grained streetscape rhythm and building scale of Oakleigh Village

·  encouraging new development to be compatible with the future role in preferred design outcomes for the centre.

14  A series of specific strategies is provided for each of the precincts within the activity centre. For Precinct 1, these relevantly include:

Support the retention and enhancement of the pattern of development in the core centre that is characterised by small lot frontages, two storey federation and inter-war buildings, steeply pitched roofs and architecturally detailed upper storeys.

Encourage, where possible, the retention of existing facades.

Encourage the use, renovation and development of shop top dwellings.

Improve and encourage active street frontages to create interest and vitality at the pedestrian level.

Encourage redevelopment of large sites to include higher density residential dwellings.

Encourage an enhanced pedestrian environment within the Precinct.

Support the continued improvement of the public realm.

Oakleigh Major Activity Centre Structure Plan

15  Both clause 21.06 and clause 21.15 include a section detailing further strategic work and implementation measures. Included amongst these are:

·  reviewing and/or preparing structure plans for activity centre[16]

·  applying a Design and Development Overlay that defines development guidelines for all sites within the Oakleigh Major Activity Centre.[17]

16  The Council prepared the Oakleigh Major Activity Centre Structure Plan 28 August 2012 (‘the Structure Plan’). This Structure Plan forms part of the strategic basis for Amendment C93 to the Monash Planning Scheme. That Amendment was gazetted on 30 May 2013 and amended clause 21.06, introduced clause 21.15 and introduced a new Schedule 11 to the Design and Development Overlay (DDO11), which I will refer to in the following sections of these reasons.

17  The Structure Plan has been adopted by the Council. Pursuant to section 60(1A)(g) of the Planning and Environment Act 1987, before deciding on an application, the responsible authority (and, on review, the Tribunal), if the circumstances appear to so require, may consider a strategic plan which has been adopted by the municipal council. The Structure Plan is a reference document to clauses 21.06 and 21.15 and to DDO11.

18  The Structure Plan provides the following description of the urban and built form of the activity centre:[18]