VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1564/2022
Permit Application no. 0300/21	
CATCHWORDS	
Four storey apartment building; Policy support for increased and diverse housing; Expectation of change in zone schedules; Transition in built form scale; Amenity impacts, particularly visual bulk and overlooking; Design changes for daylight access; Flooding potential, drainage and landscaping.   	

Applicants	Sarah Reddan, Tim Reddan & Others	

Responsible Authority	Stonnington City Council	
RespondentS	Sinha Family Trust	
	J.P.Sinha Pty Ltd IIOR ATF Sinha Family Trust & Poonam Rani Sinha	
SUBJECT LAND	1667-1669 & 1671-1673 Malvern Road
GLEN IRIS  VIC  3146	
HEARING TYPE	Hearing	
DATE OF HEARING	1 June 2023	
DATE OF ORDER	16 June 2023	
CITATION	Reddan v Stonnington CC [2023] VCAT 681	

Order
No permit granted
1	In application P1564/2022 the decision of the responsible authority is set aside.
2	In planning permit application 0300/21 no permit is granted.

Rachel Naylor
Senior Member	

Appearances
For applicant	Ms Sarah Reddan
	
For responsible authority	Mr Peter English, town planner of Peter English & Associates Pty Ltd
	
For respondent permit applicant	Mr David Song, town planner of SongBowden Planning Pty Ltd

Information
Land description	The site is located on the northeast side of Malvern Road in a mid-block location one property south of King Street.  The respondent permit applicant explains the site comprises three lots, being 1667-1669 Malvern Road, 1671-1673 Malvern Road and a 3.05 metre strip of land that abuts the rear boundaries of the other two lots and extends up to King Street.  This strip of land is encumbered by a 3.05 metre drainage and sewerage easement.
The site has a total Malvern Road frontage of 39.52 metres, a depth of 50.3 metres and the rear small lot is 57.41 metres long, extending to King Street.   
The site has a fall from the Malvern Road frontage to the rear of up to 2.81 metres.  The two larger lots each contain a single storey detached house.  	

Extract from the Respondent permit applicant’s submission
	
Description of proposal	The construction of a four storey apartment building containing 40 dwellings and two basement levels that include 50 car spaces and 50 bicycle spaces.  
The building is a contemporary design that is cut into the site closest to Malvern Road.  It has a pedestrian entrance via an entry bridge.  The building is setback from all boundaries with landscaping proposed within these setbacks.  	

Extract from the Council ‘decision plans’
	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Stonnington Planning Scheme	
Zone and overlays	The whole site and all surrounding land are in General Residential Zone.  The larger two lots of the site are in Schedule 7 (GRZ7) and the 3.05 metre wide lot at the rear of the site is in Schedule 10 (GRZ10).  No overlay controls apply.	
Permit requirements	Clause 32.08-6  Construction of two or more dwellings on a lot in GRZ7 and GRZ10
Clause 52.29-2  Create or alter access to a road in Transport Zone 2 (Malvern Road)	

Reasons
Overview
1	Sarah and Tim Reddan and Simon and Michele Shepherd (the applicant) seek a review of the decision by Stonnington City Council (the Council) to grant a permit for a four storey apartment building on the land at 1667-1669 & 1671-1673 Malvern Road, Glen Iris (the site).  Sinha Family Trust and J.P.Sinha Pty Ltd IIOR ATF Sinha Family Trust & Poonam Rani Sinha (the respondent permit applicant) accepts the Council’s decision to grant a permit subject to permit conditions that require changes to the design of the apartment building.   
2	The permit application was lodged with the Council on 26 April 2021.  16 objections were received, and the Council held a consultative meeting on 6 September 2022.  The processing of the permit application sought input from various Council departments including its drainage engineers and environmentally sustainability development advisor.  The Head, Transport for Victoria (TfV) is a determining referral authority because the proposal includes creating a new crossover and altering (removing) existing crossovers to Malvern Road.  TfV has no objection to the proposal subject to the inclusion of permit conditions, which are agreed to by the respondent permit applicant.  
3	The Council decision to grant a permit is subject to a range of conditions that require a lot of changes to the design.  It is acknowledged by the respondent permit applicant that these changes will modify the layout and appearance of the proposal, for example: 
•	Greater setbacks are required from the northeast rear boundary, from some of the southeast side boundary and from a small rear part of the northwest side boundary; 
•	The design to also meet various standards of clause 55 including those relating to functional layout, room depth and private open space; and 
•	The design to also meet specified minimum daylight factors including for 90% of the floor area of bedrooms and of living areas, including kitchens.  
4	As amended plans have not yet been prepared, it is unclear what these and the other required changes in the permit conditions will mean for the appearance of the building or for the number and the size of the apartments.  The respondent permit applicant suggests that the changes are likely to result in fewer two bedroom apartments.  

5	My decision has regard to the Planning and Environment Act 1987, the Stonnington Planning Scheme including the relevant zones, particular provisions and planning policies, the physical context of the site and surrounds, the material filed in this application for review, and the submissions and materials provided for and at the hearing.  
6	The key issue is the acceptability of the design response to the neighbourhood character and the features of the site and surrounding area.  The Council has decided that some changes need to be made to the design, particularly in regard to its interface with adjoining properties at the rear and along the rear section of the southeast side boundary.  I am not persuaded that these changes create an acceptable design response, and they fail to acceptably consider the impacts to the northwest side boundary.  I am also concerned about what compliance with various standards of clause 55 will mean for the overall layout and appearance of the proposed apartment building.  
Policy support for increased and diverse housing
7	Before turning to the key issue, the applicant’s submission about whether an apartment building on this site is acceptable in general terms has been considered.  The applicant submits the physical context illustrates that most new apartment buildings in this neighbourhood are located between Burke Road and King Street, meaning that this proposal on this site is seeking too much and a development should have ‘more breathing space’.  
8	The Council and the respondent permit applicant agree that the consolidation of three lots creates a site area that is suitable for an apartment building style of development.  They also agree that an apartment form of residential housing is supported in this particular neighbourhood, and along Malvern Road more generally, because of the General Residential Zone provisions and the relevant planning policies.  This planning support is physically evident as there are already a number of apartment buildings along Malvern Road, and more have been approved.  In terms of scale, the Respondent permit applicant pointed out the similarity in the scale of the four storey apartment building at 1655-1661 Malvern Road at about RL 39.04, 7-17 King Street at about RL 38.175 and this proposal at about RL 39.4.  

Extract from Streetscape elevation (TP208)
9	The purpose of the General Residential Zone encourages a diversity of housing types and housing growth.  The planning policies identify this site in an ‘incremental change area’ that directs multi-unit development of two to three storeys on lots capable of accommodating increased density.  Schedule 7 of the General Residential Zone that applies to both sides of Malvern Road allows a maximum mandatory building height of 11.5 metres, which enables a four storey scale of development.  So, this planning control allows for a higher building height than the guidance found in the planning policies.  The planning policies direct medium density housing (that includes this proposed apartment building) to respect the preferred character of the relevant neighbourhood character precinct.  In this case the relevant precinct is Garden Suburban 4 and its strategies include:
•	Encourage new buildings or additions to offer innovative and contemporary design responses while complementing the key aspects of building form, scale and design detail of the older dwellings in the precinct.
•	Avoid boundary-to-boundary development.
•	Provide adequate space between and around buildings to accommodate vegetation.
•	Include planting around the perimeter of the site to strengthen the garden setting.
10	Hence, the physical and planning contexts clearly provide the opportunity for this site to be developed with a four storey residential apartment building.  As stated earlier, the key issue in this case is the acceptability of the proposed design response to the features of the site and surrounding area and the neighbourhood character.
Expectation for transition in built form that addresses amenity impacts
Council desire for 6 metre setbacks from some interfaces
11	The Council wants a 6 metre setback from the northeast rear boundary and from the rear part of the southeast side boundary.  The applicant questions why these setbacks are being required for these interfaces but a lesser standard B17 setback is being required along the northwest side boundary with the townhouses at 7-17 King Street.  
12	The Council explains the 6 metre setback requirements are derived from its internal urban design referral comments.  The initial referral comments on 7 October 2021 expressed concern about visual bulk and overshadowing impacts to the units at 1675 Malvern Road and a crowding of the interface with the townhouses at 5 King Street.  The referral comments recommend increased setbacks from both of these interfaces to relieve the visual bulk and overshadowing issues but did not specify what the setbacks should be.  On 6 September 2022, the Council’s urban designer recommended the increased setbacks should be a minimum of 6 metres, explaining:
•	The proposal (at that time) had a 4.5 metre setback from the majority of the northeast boundary and a 4.9 metre setback from projecting balconies to the south boundary (which is presumably a reference to the southeast side boundary with 1675 Malvern Road).
•	These adjoining properties have no prospect of future development for comparable-scale developments with the ability to ‘mirror’ a 4.5 metre typical setback, so a 6 metre setback is reasonable.
•	A minimum 6 metre separation distance is reasonable and comparable to the three storey base of two 4 storey apartment buildings at 1557 and 1565 Malvern Road that are setback from the nearest residential property (across the rear lane) 7 metres and 6.9 metres respectively.
13	I am not persuaded the two apartment buildings referred to above are comparable given they are located some distance away on the other side of the Burke Road intersection as shown in the illustration below.  

The blue arrow is the site and the red arrow points between the two apartment buildings referred to by Council’s urban designer.  
14	Council’s urban designer considers there is no prospect of future development for comparable-scale developments with the ability to ‘mirror’ a 4.5 metre typical setback to either the northeast rear boundary or the southeast side boundary.  This is said to be a reason why a 6 metre setback for this proposal is being sought and it is not clear why.  A ‘4.5 metre typical setback’ is what can often be found between apartment buildings so that, in combination, a total 9 metre separation is achieved between apartments.  This type of separation is often considered acceptable as it minimises the need for screening of habitable room windows and balconies, and allows adequate daylight and a reasonable outlook as well as internal amenity for the new apartments.  
Interface with 5 King Street
15	No daylight, outlook, internal amenity or overlooking concerns have been identified by the Council for the townhouses at 5 King Street (abutting the northeast rear boundary).  These townhouses have a common driveway and landscaping closest to this site and each of the townhouses is oriented toward their respective northeast, meaning that they are oriented to face away from this site.  Also, their principal areas of private open space are on the far northeast side of 5 King Street, well separated from this site.  Given this is the interface, I am not persuaded that a blanket setback of 6 metres is necessary in order to provide an acceptable design response.  The proposed ground floor setbacks vary between 4.5 and 6.8 metres and provide sufficient space for the ‘planting around the perimeter of the site to strengthen the garden setting’ (as is sought in the Garden Suburban 4 precinct).  The level 1 and level 2 setbacks can be reviewed in regard to achieving articulation and minimising visual bulk, but this does not require a blanket 6 metre setback (as sought in condition 1(a) of the Council’s decision). 
Interface with 1675 Malvern Road
16	I agree with the Council that the amenity impacts including overlooking and visual bulk upon the habitable room windows and small courtyard areas in units 2 and 3 of 1675 Malvern Road are a relevant consideration.  The ground floor has a staggered setback of 3.151 to 5.259 metres, the level 1 setback varies between 3.151 and 4.559 (a balcony), and the level 2 setback varies between about 4.5 (a balcony) and 6.562 metres.  These setbacks and their variation create a stepped built form with articulation that is illustrated in the following extract of a 3D view from TP053 (focus on the rear half of the building presentation to 1675 Malvern Road).  In general terms, the variation in setbacks and the stepping back of the respective floor levels assist to minimise the visual bulk.  

17	However, the northeast corner of the proposed building has a two storey sheer component that should be reviewed in regard to increasing the overall separation, including at ground level.  The following extract from Section C on TP305 illustrates the closest point of the development to unit 2/1675 Malvern Road and the proximity and height of the proposed building still has the potential to create an unacceptable visual bulk impact.  However, a review of this element of the building does not necessarily mean a 6 metre separation is required.  The other setbacks already mentioned achieve a transition in height and articulation without being 6 metres.  

18	Also, the Landscape Plan prepared by John Patrick Landscape Architects includes smaller vegetation adjacent to this section of the building whereas larger canopy vegetation is preferable as is achieved further along the southeast side and along the northeast boundary.  
Interface with 7-17 King Street
19	There is a distinct contrast in the built form presentation on the southeast and northwest sides of the proposed building.  The southeast side is evident in the extract on page 9 and the northwest side is evident in the extract on page 4 of these reasons.  The extract on page 4 illustrates the reasonably close proximity of the lower three levels of the proposed building to the interface with the townhouses at 7-17 King Street.  The projecting vertical elements surrounding windows are setback about 2.4 metres from the common boundary and the walls are setback about 3 metres.  The architectural design has more solid elements of three storeys in height closer to the common boundary than what is proposed in the rear of the southeast elevation.  The Council’s decision raises no concern with this interface, and it is not clear to me why this interface is acceptable when the others (already mentioned) require modification.  These townhouses are a consideration in the same manner in which the Council has considered 5 King Street and 1675 Malvern Road.  Whilst these townhouses are relatively new, they are unlikely to be further developed in the short or medium term like the other adjoining properties.  Similarly, the townhouses are residential neighbours with designs that have created a level of amenity that includes a rear interface with this site.  The townhouses at 7 and 17 King Street are not sensitive as they have largely turned their back or side to this site.  However, like the units at 1675 Malvern Road, the townhouses at 9, 11, 13 and 15 King Street have ground level habitable rooms and rear courtyards adjacent to, and oriented towards, this site.  

Extract of the ground floor layouts of 7-17 King Street provided by the Applicant 

20	13 and 15 King Street also have third levels containing bedrooms with clear, openable and reasonably large skylight-style windows facing this site.  This is illustrated in the elevation on the following page.  

Extract from TP211 illustrating the habitable rooms at ground level

21	9 and 11 King Street have their ground level principal living area and deck located about 2 metres from the common boundary.  13 and 15 King Street have a bedroom and deck with lawn/garden area within 3.9 metres of the common boundary.  These courtyards and decks in combination are of reasonable dimensions and size and form part of the secluded private open space of the townhouses at 9, 11, 13 and 15 King Street.  They are not merely service areas as is sometimes seen in townhouse developments, including those that have a reverse living arrangement (i.e., principal living areas at upper floor levels).  
22	The preferred future character policy in the planning scheme seeks the design of upper levels to minimise visual bulk and limit other impacts on adjoining residential properties.  The policies also encourage complementing building form and scale of other dwellings in the neighbourhood precinct.  These policies are both character and amenity considerations.  A ‘typical setback’ is effectively an amenity-related design response, and it is obvious that the ‘4.5 metre typical setback’ referred to by the Council’s urban designer is not achieved on either side of the common boundary between this site and 9-15 King Street.  I am not persuaded a blanket setback of 6 metres (for example) for a new building on this site is a necessary design solution.  Rather, the proposed design and its interfaces at various points along this common boundary should be given consideration based on the particular physical features of the townhouses and their decks and courtyards, and an appropriate design response incorporated into the proposal. 
23	The Applicant is concerned about noise impacts from future residents, but this is part and parcel of living in a residential area that is experiencing an increased density of housing.  For the townhouses at 9-15 King Street, the potential amenity impacts that require specific consideration are visual bulk and overlooking.  
24	It is necessary for the proposal to address the overlooking potential including into the clear angled skylight style windows that service the top floor of 13 and 15 King Street.
25	I agree with the Applicant that the design should include ‘breathing space’ and I am not persuaded the proposed setbacks achieve this.  The visual bulk impact is unacceptable given the sensitivity of the interface with the ground floor indoor and outdoor areas of 9-15 King Street.  The setbacks, articulation and landscaping of the centre section of the northwest elevation that is located generally opposite the courtyard spaces of 9-15 King Street needs to be reconsidered.  
Conclusion
26	It is noted that this proposal received a number of objections; the Council imposed quite lengthy permit conditions including design changes such as the 6 metre setbacks from some of the property boundaries; and none of the other objectors have sought a review of the Council’s decision.  Hence, I am cognisant that my reasons relating to the requirements for 6 metre setbacks may not accord with the views of other adjoining property owners/occupiers who may have objected.  Whilst my reasons explain why I am not persuaded of the necessity of a blanket 6 metre setback, ultimately it is a setback that the Respondent permit applicant can choose to pursue if it wishes to.  My key concern is that the northwest interface requires a similar level of consideration to that of its neighbours to the northeast and southeast.  As such, changes will need to be made to the design response to the side and rear boundaries of this site and, if the Respondent permit applicant wishes to, this could include reconsidering the necessity for 6 metre setbacks to the northeast and southeast.  
Achieving layout standards and a minimum daylight factor for living areas and bedrooms
27	Council’s condition 1(c) requires the design of apartments on the northeast and southeast sides to be amended to meet various layout standards in clause 55.07 as well as requiring minimum daylight factors to be reached for 90% of the floor area of bedrooms and of living areas, including kitchens.  The Council and the Respondent permit applicant consider this can be dealt with by permit condition, but it is preferable for any design changes required to be documented in plans and elevations before a permit is granted.  This is because it is possible design changes could result in alterations to the setbacks and/or articulation.  This is a level of detail that should be able to be understood by all involved – the permit applicant, the neighbours and the Council.  Hence, any new planning application should provide sufficient design information so that there is certainty about the form, articulation and appearance of the proposed building before any permit is issued.    
Flooding potential, drainage and landscaping.  
28	I was advised during the processing of the permit application, the Council’s engineers had a concern about flooding potential on the site that needed to be addressed.  Hence, drainage discussion plans were provided to the Council that its engineers are generally supportive of.  

Extract of northwest side of concept drainage plan prepared by RaPawa Civil Services	

Extract of northwest side of landscape plan prepared by John Patrick Landscape Architects	

29	In regard to the northwest side boundary, there are drainage pipes proposed within the setback area, but it was unclear during the hearing at what depth these pipes would be.  Hence, it is also unclear whether there is any potential for conflict between the necessary drainage and the proposed landscaping including canopy trees and deep soil areas as set out in clause 55.07-4.  This is a matter of detail that should be considered and addressed as necessary as part of any new proposal for this site.  An acceptable design response for the northwest interface should include landscaping as well as a staggered and articulated elevation.  
Conclusion
30	For the above reasons, the decision of the Responsible Authority is set aside.  No permit is granted.

Rachel Naylor
Senior Member