VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1528/2020
Permit Application no. P19/01016	
CATCHWORDS	
Section 79 Planning and Environment Act 1987; Boroondara Planning Scheme; Residential Growth Zone; Built Form; Amenity Impacts; Overlooking; Overshadowing; Visual Bulk; Internal Amenity.      	

APPLICANT	George Petridis	
responsible authority	Boroondara City Council	
Referral Authority	Department of Transport	
RESPONDENTs	Anne Marie Ryan and others, Ruth Siegel Nominees Pty Ltd, Mary Drost OAM, Robert Vandermeer, 59 Riversdale Road Pty Ltd, David Greenwood and Elizabeth Zhong, Judy Tran	
SUBJECT LAND	57 Riversdale Road, HAWTHORN	
WHERE HELD	Melbourne	
HEARING TYPE	Hearing	
DATE OF HEARING	23 & 30 March 2021	
DATE OF ORDER	10 May 2021	
CITATION	Petridis v Boroondara CC [2021] VCAT 454	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & 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:	Petridis Architects	
•	Drawing numbers:	TPA01 to TPA15	
•	Dated:	18 January 2021	
Parties to proceeding
2	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as a party to the proceeding:
59 Riversdale Road Pty Ltd, Judy Tran, Mary Drost OAM
No permit granted
3	In application P1528/2020 the decision of the responsible authority is affirmed.
4	In planning permit application P19/01016 no permit is granted.

Joel Templar 
Member			

Appearances
For George Petridis	Mr Russell Hocking, town planning of CityShire Planning.
He called evidence from the following witness:
•	Mr Craig Czarny, urban design of Hansen Partnership.	
For Boroondara City Council	Ms Adrianne Kellock, town planner of Kellock Town Planning Pty Ltd.	
For Department of Transport	No appearance.	
For Anne Marie Ryan and others, Ruth Siegel Nominees Pty Ltd and Judy Tran	Mr Paul O’Shea, town planner of CS Town Planning.	
For David Greenwood and Elizabeth Zhong	Both in person.	
For Robert Vandermeer 	In person.	
For 59 Riversdale Road Pty Ltd	Mr Scott Edwards, lawyer of Planning and Property Partners.	
For Mary Drost OAM

	In person.	

Information
Description of proposal	Construction of seven dwellings across four levels over basement car parking comprising car stackers. The maximum height of the building is to be 13.8 metres.	
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.	
Planning scheme	Boroondara Planning Scheme	
Zone and overlays	Residential Growth Zone Schedule 1	
Permit requirements	Clause 32.07-5 – to construct two or more dwellings on a lot.
Clause 52.29 – to create or alter access to a road in a Road Zone Category 1	
Land description	The subject site is irregular in shape with a frontage of 15.24 metres, a rear boundary width of 12.19 metres, a western side boundary length of 42.67 metres and has an overall area of approximately 614m2.
The topography of the site falls by approximately three (3) metres from the rear north-east corner towards the front south-west corner.	
Tribunal inspection	3 May 2021	

Reasons
What is this proceeding about?
1	This matter concerns an appeal by the applicant against the failure of the council to determine the permit application within the prescribed time.
2	As part of the planning permit process, adjoining land owners and occupiers were notified of the permit application. As a result of this, 21 objections were received and a number of those objectors are party to this proceeding.
3	There was no dispute that there is broad policy support for the proposal. The issues in contention lay primarily in how the proposal responds to its physical context.
4	The council determined that had the appeal not been lodged, it would have refused the permit application on a number of grounds including urban design and presentation of the proposal to the street, removal of vegetation, poor internal amenity for future occupants of the proposal and off-site amenity impacts.
5	The objectors who were party to this proceeding raised similar concerns to the council, particularly relating to amenity impacts related to visual bulk, overshadowing and overlooking.
6	Having regard to the submissions and evidence before me, the key issues in this case are:
•	Is the built form an acceptable response to its policy and physical context?
•	Will the proposal have any unacceptable off-site amenity impacts?
•	Will the proposal provide an acceptable level of internal amenity for future residents?
7	In this case, I find that the proposal fails partly on the first of those key issues and entirely on the second and third of those. I set out my reasons below.
physical context
8	The subject site sits on the northern side of Riversdale Road, opposite the t-intersection of Fordholm Road. It is situated approximately 270 metres west of Glenferrie Road and 530 metres east of Power Street.
9	The subject site is an irregular shaped lot, but takes on a roughly rectangular form.  It has a frontage of 15.24 metres, a rear boundary width of 12.19 metres and a western side boundary length of 42.67 metres. The site has an area of approximately 614m2.

Aerial Photograph of the subject site.
10	The topography of the site falls approximately 3.2 metres from the rear, north-eastern corner to the south-western corner, which reflects the general topography of the immediately surrounding area.
11	The site has a reasonably dense vegetation cover for a site of this size in an inner suburban location with trees located throughout the site, including a larger tree in the north-eastern corner of the site.
12	Although the surrounding area, particularly on the northern side of Riversdale Road is more intensively developed with many multi-dwelling developments, the area supports a relatively high level of tree and vegetation cover.
13	The adjoining sites to the north/east and west support multi-dwelling developments of varying ages.
14	The land to the north and east is one site known as 59 Riversdale Road. It supports two attached, large 1960s era buildings comprising a number of walk-up flats, with a carport along its eastern boundary and a large area of concrete in the frontage setback. This site also sits higher than the subject site. They are arranged in a ‘T’ format with the building towards the front/south being double storey in scale and the rear building triple storey. 
15	These buildings are setback from the common boundary with the subject site at varying distances, with a concrete footpath and landscaping adjacent to the subject site. 
16	A number of the dwellings within the southern building face directly towards the subject site, including habitable rooms.

Western interface of 59 Riversdale Road, with the fence dividing that site and the subject site on the right-hand-side.
17	The adjoining property to the west hosts a three storey building constructed over a basement car park and comprises 12 dwellings. Some of these dwellings are single level, whilst others are constructed over two levels. Some of the two-level dwellings are constructed across both ground and first floor and some others are constructed across first and second floors. 
18	All of the dwellings in this building have primary secluded private open space (SPOS) areas and many habitable room windows directly facing east, towards the subject site. The SPOS areas are in the form of either courtyards at ground floor level or balconies or terraces at upper levels. Some of the split level dwellings have two areas of SPOS facing the subject site.

Some of the dwellings on the site to the west, facing the subject site.
19	This site is also lower than the subject site, with many of the ground floor courtyards substantially below natural ground level and the natural ground level on the subject site, particularly as the building extends towards the rear of the site as the topography rises.

Photograph of the courtyard of 3/47 Riversdale Road, with the subject site beyond.
20	Built form in the surrounding area is quite mixed, with the north side of Riversdale Road comprising many multi-dwelling, multi-storey developments of varying sizes and eras and on lots of differing proportions. 
21	The south side of Riversdale Road tends to comprise more detached dwellings although many of these are quite grand in proportions.
22	A small activity centre is located on the corner of Riversdale and Glenferrie Roads to the east, with tram routes 70 and 75 running past the site along Riversdale Road.
built form
23	The subject site sits within the Residential Growth Zone (RGZ) and in an area where higher density forms of development presently exist.
24	However, the subject site forms one of the smaller sites in the surrounding area, and which contains what is likely an original dwelling, single storey in scale and detached, which is vastly different from other built form presentation and other forms of housing in the surrounding area.
25	In this section, I will deal with the presentation of the proposal to the public realm. The built form presentation as it impacts adjoining properties, is dealt with in a following section further below.
26	Submissions were made that the proposal has not been cognisant of its physical and policy context and that whilst the site is zoned RGZ, too much weight has been placed on this aspect and inadequate attention has been given to the physical constraints this site presents.
27	Mr Czarny highlighted the strategic ambitions for the site and the evolving nature of this area with newer and established apartment style developments, and that ‘staged growth’ has occurred through different eras along Riversdale Road and that this was demonstrative of the transformative nature of Riversdale Road which will continue with its RGZ zoning.
28	It was also Mr Czarny’s evidence that a 3 or 4 storey apartment building on the site would be consistent with the scale of other forms in the immediately surrounding area, which are set on elevated land, which rises to the north-east. He also used the existing nearby and abutting 3 and 4 storey developments as benchmarks for the establishment of a similar scale on this site.
29	In terms of the site itself and in context with other sites, Mr Czarny distinguished this site, and therefore the impact of any built form constructed on it, from other sites which tend to have much wider frontages and larger, wider buildings. He said that this site has a much narrower frontage and that this setting would cause a 3 or 4 storey proposal on this site to have a “fleeting’”influence in the streetscape. He also surmised that the subject site was likely to have been a “remnant or excised allotment”. 
30	The RGZ makes no mention of neighbourhood character in its purpose. The purpose of the RGZ is to provide housing at increased densities up to four storeys in scale and diversity of housing, amongst other things. 
31	Schedule 1 to the RGZ makes reference to a preferred character in the decision guidelines. This site sits within Precinct 40 of the Boroondara Neigbourhood Character Study Precinct Statements 2013. The preferred character for this area references respecting the existing scale and form of existing buildings in the precinct. 
32	To the extent that the preferred character seeks respect for existing lower scale forms of development, the purpose of the RGZ, in my view, gives greater preference to increased density and resultant differing built form. It only urges proposals to reflect the existing character insofar as that is consistent with the objectives of the RGZ and increased and varied forms of housing. New and emerging forms are the expectation of the RGZ.
33	The preferred character statement for this precinct, as set out in the Boroondara Neighbourhood Character Study Precinct Statements 2013 seeks:
To facilitate development of a diverse range of housing that integrates with the scale and form of buildings in the precinct, that respects the historic houses in the area and which maintains and enhances the landscape character of the streetscape.

•	Encouraging the retention of large trees; 
•	Ensuring buildings are sufficiently setback from the front boundary to retain and enhance the existing streetscape rhythm and provide sufficient space for landscaping; 
•	Ensuring new developments and additions respect the predominant scale and form of buildings in the streetscape; 
•	Encouraging design that integrates with the heritage styles of the precinct; 
•	Ensuring car parking structures do not dominate the streetscape; 
•	Maximising soft landscaping and minimising areas of hard surfaces; and 
•	Encouraging low or open style front fences. 
34	There is policy in the planning scheme that seeks to encourage higher density forms in locations that have good access to transport and facilities and services. The council has identified this site as being one of those, by applying the RGZ to it.
35	The north side of Riversdale Road has a variety of forms and there is a lack of consistency in terms of building styles. Whilst the scale of buildings is more consistent, it is difficult to assign a simple summary of the built form as currently exists. In my view, this opens the door for a building of the form and scale as proposed, to be constructed on the site as this is not inconsistent with the scale and form of other buildings along the north side of Riversdale Road.
36	Whilst there was criticism of the pitched roof form at the upper most level, I am not persuaded that this is an unacceptable outcome. Whilst this feature might focus attention on the height and scale of this building, I am not persuaded that it will create an outcome that is so at odds with what the RGZ envisages for this area or the existing built form on nearby sites. It introduces perhaps a different design detail than more traditional, flat-roofed apartment buildings nearby, but there is no such strict design guidance for this site that would restrict such an outcome. 
37	Submissions were made that not every site has the same development potential, particularly smaller or narrower sites, with the RGZ being applied to the site, there must also be some recognition that somewhat of a different outcome might occur on this site, to meet the expectations of the RGZ.
38	Although the proposal is at a setback further forward of the buildings on either side of the subject site, I find that in the context of the zoning of the site, some recognition has to be given to the size of the site and the planning scheme desire to see a site’s development potential maximised, particularly when so much land in Boroondara has effectively been quarantined within the Neigbourhood Residential Zone and, at least in this immediate context, where much of the RGZ land has already been developed at a relatively intense level. 
39	In my view, a site such as this might well have a different built form outcome from that which is observed nearby. Larger sites tend to be able to accommodate a higher density of built form without being overly inconsistent with other form and smaller sites, such as the subject site, have less scope for accommodating aspirations of the zone.
40	In this case, I find that the proposal is not such a significant imposition in the streetscape so as to create an unacceptable outcome. It has highly articulated façade, through both the vertical and horizontal planes, and introduces a different roof form which provides some difference from the other buildings nearby. It also uses a palette of materials that complements the architectural form and provides further articulation and visual interest.
41	One of the greatest concerns raised with respect to the presentation of the proposal to the public realm was the top floor, with its pitched roof form which it was said, would focus attention to this element and exacerbate the perception of height and scale.
42	This element is recessed from the level below, and is proposed to be setback 11.45 metres from the frontage. It is also much narrower than the levels below and framed with dark sheet metal cladding. Whilst it will be visible from opposite the site and for some distance down Fordholm Road, I find that this feature will not be at odds with what is expected in the RGZ.

Perspective image of the proposed building.
43	Given the zoning of the land which expects higher density forms and where adherence to existing character is of lesser consideration in my view, and the broad aspirations set out in the character guidelines for this precinct, I am not persuaded that the presentation of the built form to the streetscape will be unacceptable. 
44	Further, the proposal incorporates space for landscaping and the landscape plan shows two canopy trees in the front setback, along with three other smaller trees and complementary lower-storey plantings. I find that this landscaping concept would complement the proposed built form and would assist in integrating the new building into the existing context and expectations for this site.
45	For these reasons, I find that the proposed building would be an acceptable insertion into the Riversdale Road streetscape.
Amenity impacts
46	In respect of specific amenity impacts relating to visual bulk, overshadowing and overlooking, the applicant submitted that any assessment of these factors under clause 55.04 of the planning scheme must have regard to the zoning of the land and the respective policy to determine whether those amenity impacts are reasonable.
47	In doing so, the applicant submitted that the zoning of the land takes priority in determining what constitutes a reasonable impact. The applicant also submitted that it would be impossible to have no off-site amenity impacts and still achieve the objectives of the RGZ.
48	The applicant sought to address these three specific amenity concerns that were raised in detail and by all of the objector parties through the course of the hearing, largely by way of reference to the policy expectations of this site and its RGZ zoning. 
49	There were criticisms levelled at the proposal’s absence of detailed information with respect to existing and proposed overshadowing information, contradictory diagrams that formed part of the amended plans showing whether compliance with Standard B17 (side and rear setbacks) had been achieved and the level of screening required.
Overshadowing
50	It is clear from both the shadow diagrams submitted as part of the amended plans and the shadow analysis table in those plans, that a significant degree of overshadowing currently exists and that the proposal will add to this.
51	In my view, the SPOS of the adjoining dwellings at 47 Riversdale Road, already have compromised amenity. This is due to the easterly orientation, the fact that many of the ground level courtyards are in fact well below natural ground level and given these areas would have shadow cast for much of the day by the existing building on that site.
52	Specifically, it appears from the shadow analysis, that townhouses 1 to 5 (i.e. the majority of the ground floor dwellings) will have additional shadow cast on the respective SPOS areas by the proposal.
53	Standard B22 of clause 55.04-6 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.
54	The tabular and numerical shadow analysis that forms part of the amended plans does not extend beyond 10:00am at the equinox. The absence of information beyond this time of the day makes the task of the applicant persuading me that the proposal complies with the standard, all the more challenging. 
55	It is the responsibility of the applicant to provide a requisite level of information in order to persuade the Tribunal that the proposal should achieve a favourable outcome on this point. This has been repeated in numerous Tribunal decisions, not the least of which are the Tika and Monarco Nominees cases. It is surprising that the Tribunal still continues to receive inadequate information on this standard. This standard has remained in the planning scheme and largely unchanged for almost 20 years. 
56	Notwithstanding, in reviewing the shadow diagrams, I am doubtful as to whether the proposal complies with the standard. It appears that some of the ground level dwellings at 47 Riversdale Road would only receive direct sunlight to the ground level SPOS areas for around 3 hours per day and this is well below what standard B21 seeks. On that basis, the second part to the above extracted standard applies.
57	Further, I am not persuaded by the applicant’s submissions that the zoning of the land and the policy support for higher density development on the subject site outweigh the amenity considerations of the adjoining dwellings. This is particularly so when the applicant is unable to satisfy me as to the level of compliance with standard B21. Standard B21 is the ‘starting point’ as to whether the objective for this standard has been achieved.
58	The applicant was unable to inform me to an adequate degree of what level of compliance with standard B21 was achieved in order for me to make a positive finding for the proposal on overshadowing impacts.
59	This basis alone is reason to refuse to direct the grant of a permit.
Visual Bulk
60	The issue of visual bulk was raised by neighbouring property owners.
61	As I have refused this matter for other reasons, and those reasons would likely require modifications to the built form, a lengthy analysis of visual bulk impacts to adjoining properties is therefore unnecessary.
62	However, to the extent it is useful, I make the following findings.
63	Firstly, there is some doubt over whether the proposal complies with the requirements of standard B17, based on the differing depictions of the B17 ‘envelope’ illustrated on different elevations and section drawings.
64	In the worst-case scenario based on these illustrations (see extract below), there would be some areas of relatively minor non-compliance with this standard.

South elevation of the proposal.
65	A simple explanation for this may be that due to the slope of the land, the standard B17 envelope changes down the length of the site, whilst the relative level of respective parts of the building does not change.
66	Given the slope of the land and the circumstances of the adjoining development to the west with lowered SPOS areas, and some with single aspect towards the subject site, the impact of the proposal needs to be considered in this light. 
67	Acknowledging the zoning and policy context of the site, this does not cast aside amenity impact considerations for existing dwellings. Whilst the RGZ might raise expectations that variations to clause 55 might be more appropriate than in, say, the General Residential Zone or Neighbourhood Residential Zones in some circumstances, I find that in this case, the slope of the land, the sensitive interfaces to the west with single aspect SPOS and the lowered ground levels of the adjoining land to the west demand a different consideration.
68	In this case, I have concerns with the presentation of the proposal to 1/47 Riversdale Road and 4/47 Riversdale, which both have parts of the proposal close to their respective SPOS areas.
69	Whilst 1/47 Riversdale Road has a relative large area of SPOS, the main access to this area is from the only living room of this dwelling which is directly opposite the ground floor of the proposal that is setback 1.0 metre from the boundary. The height of this part of the proposal is 3.19 metres from natural ground level. The first floor wall height is 6.69 metres and at a  2 metre setback. Both of these sections of the building would be some height greater than this from the adjoining SPOS areas given the level difference between the two sites. 
70	Townhouse 4/47 Riversdale Road has a much smaller area of SPOS directly opposite some similar building elements but which are lower than those adjacent to 1/47 Riversdale Road. However, the SPOS of this townhouse is set much lower given the fall of the land and so the building will present as a dominant element when viewed from this SPOS area.
71	I find that a greater level of building separation, lower height or combination of these would be required where a proposed building is adjacent to the western boundary of the subject site and opposite the townhouses at 47 Riversdale Road.
Overlooking
72	There are numerous aspects of the proposal at first, second and third floors that are either proposed to be screened, or require screening that has not been indicated on the plans and elevations. These are mainly to the east and west, where there are various SPOS areas and habitable room windows of adjoining dwellings.
73	These windows would be required to comply with Standard B22 of clause 55.04-6 (Overlooking objective) of the planning scheme. Conditions could have been included to address these had a permit been issued. However, the extent of screening would be substantial and this creates potential internal amenity impacts by restricting outlook from various rooms within the development. I deal with such consequences below.
Internal amenity
74	I find that the internal amenity of the proposal is, on balance, a poor outcome. There are numerous windows of the proposal that require screening to prevent overlooking to the adjoining properties to the east and west. Whilst this is not every habitable room window proposed, screening is required to a large number of windows and balconies to ensure that overlooking of adjoining properties is limited.
75	On the ground floor level, I am satisfied that the amenity to dwellings 1 and 2 would be acceptable, where limited screening would be required and where respective SPOS areas can be provided which are of reasonable size, dimensions and aspect.
76	Dwelling 3 has the majority of its habitable room windows facing to the north. Whilst northerly aspect is advantageous, the SPOS area of this dwelling is well below the natural ground level and with the finished ground level to be approximately 1.5 metres below the natural ground level of the adjoining site to the north/east. 
77	Furthermore, a 1.8 metre high white glass wall is proposed along part of the northern boundary. The annotation on the plans for this feature states:
Proposed 1800mmh feature white glass wall to provide natural light and restrict overlooking.
78	To require a screen such as this in order to allow natural light to a north-facing courtyard is a somewhat unusual inclusion. One would have thought that a north facing courtyard would obtain more than adequate natural light, without the need for a such a feature. 
79	Objections to the inclusion of this fence were made by the adjoining property and it seems understandable to me that concerns are raised with respect to a feature white glass wall as a boundary treatment.
80	I find that, whilst the dimensions and size of this courtyard are acceptable, the amenity to this space would be compromised by the level difference between this area and the adjoining site and the need for a relatively high retaining wall, along with a fence above this. This courtyard would effectively have a sense of enclosure, with the combination of the retaining wall and fence leading to a wall/fence height of over three metres and I find that this would not be an acceptable amenity outcome for this dwelling.
81	On the first, second and third floors, there are numerous windows and balconies that require screening to prevent overlooking to the east and west, from dwellings 5, 6 and 7. The vast majority of windows to these dwellings would require some form of screening, including to bedrooms and kitchen/living rooms. 
82	Further, the edges of balconies also require screening which further reduces the level of outlook from the only SPOS areas to these dwellings.
83	The internal amenity outcome for these dwellings, I find, would be significantly compromised and alternative design solutions should be found which deliver limited amenity impacts to adjoining properties at the same time as achieving acceptable levels of internal amenity for future occupants.
84	Whilst I find that some level of screening might be an acceptable outcome to various dwellings, the extent of screening required in this proposal is excessive and will result in poor internal amenity outcomes for future occupants.
85	For these reasons, I find that the proposal will result in an unacceptable level of internal amenity for future occupants. 
 Conclusion
86	I have found that in isolation, the built form presentation to the street is an acceptable outcome. However, the proposal otherwise has symptoms of overdevelopment, including:
a.	The extent of screening required and resultant poor internal amenity to some of the dwellings;
b.	The existing degree of overshadowing, the additional overshadowing and likely result that many of the dwellings on the property to the west will have existing sunlight to SPOS areas significantly reduced and consequentially significant impacts to the amenity of these dwellings.
c.	Proximity of parts of the proposal to the most sensitive areas of abutting dwellings to the west.
87	Whilst there may be various ways to solve the above issues, it would seem to me that a significant redesign of the proposal is necessary to address them and the issues I have found are far beyond redress by conditions.
88	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Joel Templar 
Member