VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11285/2021
Permit Application no. 5/2020/425/1	
CATCHWORDS	
Section 80(1) of the Planning and Environment Act 1987; Bayside Planning Scheme, Council has issued a permit for a mixed use multi-storey building on the subject land, but included certain planning permit conditions which are contested; VCAT hearing to review these contentious permit conditions; certain conditions by the time of the hearing Council no longer seeking to justify; stand-out issue being the condition requiring one storey less height. 	

Applicant	Niu Town Pty Ltd ATF The Wang Property Trust	

Responsible Authority	Bayside City Council	
Respondents	Nikki Taylor	
	Owen Smith	
	Paul J Novacco	
SUBJECT LAND	533-535 Hampton Street
HAMPTON  VIC  3188	
HEARING TYPE	Hearing 	
DATE OF HEARING	15-16 March 2022	
DATE OF ORDER	9 June 2022	
CITATION	Niu Town Pty Ltd ATF The Wang Property Trust v Bayside CC [2022] VCAT 630	

Order

1	Pursuant to 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:			SJB Architecture
· Dated:				18 January 2022
2	The decision of the responsible authority is varied.  
3	The Tribunal directs that planning permit 5/2020/425/1 must contain its existing permit conditions, but with the following modifications:
(a)	Conditions 1(a), 1(i), 1(r), 26, 28, 29 and 30 are deleted.
(b)	Condition 27 is amended to read as follows – “Prior to the occupation of the site associated with the development hereby approved, all public works associated with the development as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.  The cost of all works associated with such public works must be borne by the owners of the site.”.
(c)	The balance of the conditions in the planning permit are renumbered accordingly.
4	The preamble to the permit is varied to read as follows – “construction of a multi-storey mixed used building and associated reduction in car parking spaces in accordance with the endorsed plans and subject to the following conditions…”.
5	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Philip Martin
Senior Member	

Appearances
For Niu Town Pty Ltd ATF The Wang Property Trust	Mr Andrew Walker of Counsel, who called expert planning and urban design evidence from Ms Catherine Heggen
	
For Bayside City Council	Mr Peter O’Leary (planning consultant)

For Ms Nikki Taylor	Ms Nikki Taylor is a qualified planner, who appeared in a personal capacity
 	
For Owen Smith	Mr Johan Moylan (planning consultant)
	
For Paul J Novacco	Mr Paul Novacco appeared in person	

Information
Description of proposal	Planning permission has already been granted for a four storey mixed use development on the subject land, but with Condition 1(a) requiring one storey to be removed.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review certain  conditions contained in the permit.	
Planning scheme	Bayside Planning Scheme 	
Zone and overlays	Commercial 1 Zone
Development Contributions Plan Overlay Schedule 1
Design and Development Overlay Schedule 12	
Relevant scheme policies and provisions	Notably Clauses 11, 11.03-1L, 15.01, 16 and 21.02	
Land description	The subject land lies on the western side of Hampton Street in the Hampton activity centre/shopping strip. The site area is 431 sqm and it is improved by two double storey commercial buildings, which are used for ground level shops and shop-top housing.  There is a 3.7 metre wide rear laneway.
	
Tribunal inspection	The Tribunal inspected the site and surrounds after the hearing, including inspecting the back courtyard of the rear neighbouring Novacco property.	

Reasons

What does this application involve?
1	The subject land at 533-535 Hampton Street lies in the Hampton Major Activity Centre/shopping strip, more in its northern area, on the western side of the street.  It is improved by two double storey period commercial buildings.  The site is located one lot inwards from the corner of Hampton Street and the local street Arcadia Street which extends further westwards.  It is zoned Commercial 1 and affected by a Design and Development Overlay Schedule 12 (DDO12).  The site falls within Precinct C of the DDO12, which (amongst other aspects) sets a preferred height limit for development on the subject land of three storeys and 11 metres.  If it is proposed to go above this preferred height, relevant criteria are set out for consideration with this discretion.  
2	The extent of the shopping strip extending further to the north of the subject land merely involves commercial buildings/zoning on its western side, with the eastern side featuring dwellings.  The greater shopping strip extends somewhat further to the north and a considerable distance further to the south, where the railway station lies. 
3	The double-fronted front façade of the subject land represents two lots out of a group of six lots featuring a combined commercial period front façade i.e. this group of six lots extends one lot further to the south and three lots further to the north of the subject land.  A little further north again, on the same western side of Hampton Street, is the recent three storey infill apartment building at 547-551 Hampton Street.
4	At the rear of the subject land is a 3.7 metre wide laneway, running parallel with Hampton Street.  To the west of the laneway is a run of one or two storey residential properties, whose main orientation is westwards to Avonmore Street, but where their rear fences interface with the laneway.  The southern-most of these properties, on the corner of Avonmore Street and Arcadia Street, is the two storey No. 22 dwelling owned/occupied by Mr and Mrs Novacco.  It features a rear carport and brick rear shed abutting the laneway and an open rear courtyard area, featuring a spa/paved area/lawn area with some associated canopy trees.  The rear of the Novacco dwelling has both upper and lower windows facing towards the subject land. 
5	Council has already granted a planning permit 5/2021/451/1, authorising a mixed use development on the subject land and associated car parking dispensation.  In essence, as it was proposed, the approved development would demolish most parts of the two subject buildings apart from the front facades and erect a four storey building, as follows.  
6	There would be a ground level commercial area, storage, at grade parking (2 spaces), car stacker parking, front access to the commercial area and upper apartments and lift and stair access.  The next level up would feature the balance of the commercial area, residential storage and one dwelling.  The second to top level would feature four single bedroom dwellings and the top level would provide for two double bedroom dwellings.  Vehicle access would be off the rear laneway and 10 car spaces would be provided for with the car stackers.  The total height of the new building would be 15.11 metres to its parapet.  
7	Council imposed a considerable number of conditions in its Notice of Decision to Grant a Permit, including Condition 1(a) which reads as follows:
a)	Deletion of Level 3, the fourth storey and ensure that overall building height is not more than 11m with exception to site to services to the satisfaction of the Responsible Authority.
8	These conditions also included Conditions 26-27 and 1(r), which impose the requirement for a Public Works Plan to be prepared in collaboration with Council.  This plan must show a variety of information, in terms of details of relevant features of the nearby public realm, and the permit holder must then implement the plan at its expense.
9	The applicant (permit holder) has initiated a ‘conditions appeal’ to the Tribunal, which came before me on 15-16 March 2022.  Coming into the hearing, up for review were Conditions 1(a), 1(r) and Conditions 26-30.  Also raised by Ms Heggen in a sensible way was condition 1(i) which requires the deletion of the two surplus car spaces if the upper level is deleted – it makes sense that 1(i) should be deleted if the applicant is successful with seeking the deletion of Condition 1(a) and vice-versa. 
10	With the preliminary discussion at the beginning of the hearing, I by consent allowed the substitution of the updated plans dated 18 January 2022.   Also circulated with the updated plans was an Environmental Sustainable Design report (ESD report).
11	It was established at the beginning of the hearing that Council and the neighbours were content for Conditions 28-30 to be deleted.    With Conditions 1(r), 26 and 27, all parties were content for Mr Walker to prepare a revised version of same, for further discussion.  I otherwise heard submissions from the persons listed above, plus I received the expert planning and urban design evidence of Ms Catherine Heggen, who was called by the applicant.  
12	In summary then, after this clarification process, the hearing in substance focused simply on one issue, being whether one storey should be deleted and the building be no higher than 11 metres, as required by Condition 1(a), with Condition 1(i) being impacted by this aspect too.
13	After the hearing, I conducted an inspection of the site and surrounds.  By consent of all parties, this was generally done from the public realm, but I did inspect the back courtyard of the adjacent No. 22 Novacco dwelling.
14	My overall finding has been that Condition 1(a), while well-intended, is excessive and should be deleted.  By the end of the hearing, there was a consensus position or close to, that the substitution ‘public works’ permit condition provided during the hearing by Mr Walker was a reasonable substitute for the contested conditions 1(r), 26 and 27 (hence my orders make this change). 
Key finding of Tribunal – would a four rather than a three storey building on the subject land be an unacceptable planning outcome?
Various positive factors for the proposed fourth level 
15	For the following reasons, I see the following positive aspects of the site, its strategic/physical context and the revised proposal as together creating a strong case that the site can reasonably accommodate a four storey building as proposed in the substituted 18 January 2022 plans.
16	First, with the benefit of my site inspection, I am satisfied that this western side of this northern section of the Hampton Street shopping strip (NW area) has a somewhat robust character.  On the one hand, I accept that currently this NW area does not feature any four storey buildings and has a more fine grain pattern of lot frontages.  However this is counter-balanced by this NW area featuring a three storey infill apartment building just to the north of the subject land, plus a number of older/quite visually prominent two storey commercial buildings with minimal articulation, which themselves I expect are candidates for future redevelopment.  One of these buildings features several telecommunications towers on its roof.  There is a two storey older apartment building on roughly the opposite side of Hampton Street from the review site.
17	Furthermore, the mid-block three storey development at 547-551 Hampton Street (whilst one storey lower than is proposed here) features a rather ‘courageous’ and ‘in your face’ choice of ‘pressed concrete’ for its top level front-facing balcony balustrade.   I acknowledge that there are low-key residential buildings on the opposite side of Hampton Street to this NW area, but I do not see this as changing my fundamental findings here – Hampton Street is a wide street and this NW area has its own character. 
18	Second, I accept that there is a very high level of strategic support for a three storey building on the subject land and some limited degree of strategic support for a four storey building.  On first principles, the positive strategic planning aspects here are the Commercial 1 zoning where (all things being equal) more robust built form is to be expected, the site falling within a Major Activity Centre, the beach being about 800 metres away, the fact that there is no Heritage Overlay affecting the site, several schools being within a walking distance, plus the excellent proximity of local shops/cafes/restaurants/services and public transport. 
19	Clause 02.03-5 of the Planning Scheme acknowledges the current trend to smaller household sizes and greater demand for more diverse housing options.  Clause 02.03-7 confirms that Bayside has a higher than average proportion of older people, where apartments with good accessibility can help facilitate ‘aging in place’. 
20	In relation to the DDO12, the discretionary height limit under the DDO12 at three storeys is only one less than that proposed here, where possible greater height than three storeys is contemplated by the DDO12 (and criteria set to consider, for any potential height further height).  Nevertheless, I acknowledge that the proposal does go beyond the preferred height limit and that the Hampton Street Structure Plan is generally encouraging higher development to the south and lower height to the north.  Hence I accept that overall the degree of strategic support for a fourth level is constrained. 
21	Third, the subject land is only one lot set back from the corner of Hampton and Arcadia Streets.  With the right design, I accept that sites which are corner sites (or close to) can typically reasonably accommodate more height and scale of development than a mid-block site, following the ‘bookend’ or ‘hold the corner’ line of design-thought.
22	Fourth, it is a major plus that the front double storey existing façade of the subject land is of an attractive period nature, and will be retained as part of the proposal.  I find convincing the applicant’s submissions that, even with a four storey building on the subject land, this two storey period façade is likely to ‘draw the eye’ and make the new building further behind in effect more visually recessive.
23	Fifth, I find that the 18 January 2022 substituted plans are of a high standard (also being the position of Ms Heggen), with a good level of upper setbacks, modulation and articulation.  The building will suitably step-down towards its rear.  The proposed upper level treatment and intended use of materials is respectful of the two storey period front façade that will be retained.  The proposed top levels can be said to have a ‘sculptural form’.  I can see that real thought has gone into making the building sit comfortably in its location, including with the commendable design input of Ms Heggen.  
24	Where I accept that the opposite side of the laneway is the appropriate point for assessing the rear setbacks of the proposed new building, I find that such rear setbacks are well composed and respectful to the neighbours on the other side of the laneway.  Notably, measured from the far side of the rear laneway, the second storey rear external wall is set back by 9 metres, the second to top level external rear wall by 12.9 metres and the top level external rear wall by 15.1 metres.   I accept Mr Walker’s submission that for the purposes of the DDO12 preferred rear setbacks and assuming for convenience that they are applicable, it is reasonable to use the far side of the laneway as the benchmark and that the above-mentioned setbacks meet or exceed the DDO12 rear setback benchmarks.
25	Sixth, the review site for redevelopment purposes has the benefit of its front façade facing out onto a substantial and busy street being Hampton Street, plus its rear boundary faces the rear laneway.  Hence the subject land has no direct residential interfaces to the east and west.   Its interfaces to the north and south are to other commercially zoned commercial properties.  The laneway to the rear provides an important buffer to the rear of the residential properties to the south.
26	Seventh, I find the planning and urban design expert evidence of Ms Heggen to be convincing and carry real weight, where Ms Heggen supported the most revised version of the proposal.  Ms Heggen is a very experienced expert witness before the Tribunal and provided a detailed rationale for her recommended changes that were incorporated into the 18 January 2022 plans.
27	Eighth, the ESD plan submitted with the revised plans confirms some very positive ESD features of the updated proposal.  This ESP plan gives the 18 January 2022 plans a BESS score of 73% representing ‘excellence’ and confirms the following commendable features – a 3kW rooftop photovoltaic system, water efficient fixtures, a green wall provided on the ground level commercial courtyard, a gas free approach and a commitment to implementing a green cleaning policy. 
28	In totality then, these various positive features create a strong case for the acceptability of a four storey building on the site, as shown in the 18 January 2022 revised plans.
29	The sixty-four dollar question then becomes whether there are any other relevant factors that impose any fatal problem with the intended fourth level.  I see three factors to be considered here, as follows.
Interface with the Navocco property to the south
30	With the benefit of inspecting the back courtyard of the Novacco No. 22 Avonmore Street property which lies to the south of the review site and the laneway, for the following reasons, I see no incompatibility between that property’s amenity and the proposed fourth level.
31	See my comments above regarding what I see as the commendable stepping-down of the rear section of the building, with the relevant rear setbacks as described above.
32	It is self-evident that the laneway in itself provides a strong buffer role, between the two properties.  Also important is the fact that there is a fairly tall combined ‘palings and brick’ fence running along the 22 Avonmore Street boundary with the laneway, in association with the carport and rear garage which are located at the very rear of that property.  I find that this rear car port/garage also provides a valuable buffer role, in terms of the use of the 22 Avonmore Street rear courtyard vis-à-vis a potential fourth storey of development on the subject land.  
33	Whilst acknowledging that confined views of parts of the intended fourth storey on the subject land may well be visible from certain parts of this courtyard, I expect such viewlines will be quite discrete and may in some locations be somewhat screened by the canopy trees in that courtyard.  I would say the same thing about possible ground level inside views, looking towards the subject land.
34	Where the upper rear-facing rooms of the Novacco dwelling face towards the subject land, I acknowledge that a fourth level of development on the subject land would noticeably change the outlook from these windows.  However I see this as acceptable, given the 30 metre or so intervening distance involved i.e. from the closest external wall of the Novacco dwelling to the closest wall of the proposed new building.
35	For the removal of any doubt, I can indicate that I am also content with the interface between the proposed fourth level and the rear of the No. 20 Avonmore Street property. My site inspection confirmed that this No. 20 interface also involves a high paling fence with trellising and provides a good level of protection for the amenity of those using the rear of that No. 20 property.  This is reinforced by the very large canopy tree in the rear section of the No. 20 back yard.
Role of the 547-551 Hampton Street infill building to the north
36	At the hearing before me, there was considerable discussion of the previous VCAT decision Samal Pty Ltd v Bayside CC [2017] VCAT 122, involving the development site at 547-551 Hampton Street, a few shops further to the north of the subject land (on the same western side of the street).  This Samal decision involved a proposed four storey apartment building, as a repeat appeal, where the Tribunal again refused a four storey development on that site.  I was urged to in effect take a ‘what’s good for the goose, is good for the gander’ approach and to rely on that Samal decision in upholding Condition 1(a).
37	Whilst respecting the conclusions reached in that Samal decision for that particular site, I consider that there are some important differences between it and what is proposed here before me, as follows:
•	The No. 547-551 Hampton Street site is a mid-block site, whereas our site here is only one lot back from being a corner site. I find that ‘all things being equal’, corner sites (or close to) can usually accommodate more height/scale with redevelopment, than a mid-block site.
•	The proposal here involves the attractive two storey period front façade which will be retained.  I see logic in the argument that this period façade will be a real point of visual interest, which will in effect make the higher built form behind it more visually recessive.
•	The 18 January 2022 plans for the four storey proposed building I find to be of a high architectural standard, which is far superior to the appearance of the three storey infill building to the north (which can at best be described as ‘bland’).  Indeed I found both the front and rear of this three storey infill building to the north to be quite visually confronting and jarring.  
•	With the benefit of walking some distance along the rear laneway, I join Ms Heggen in observing that the 547-551 Hampton Street property has more sensitive interfaces with its adjacent neighbours on the other side of the laneway, compared to the interface here with the No. 22 and 20 Avonmore Street properties.
•	The six DDO12 criteria for assessing potential height above the DDO12 preference here for three storeys was not discussed in the Samal case, presumably because the advocates involved did not take the Tribunal to them.  Here there was a good discussion of these six criteria and I have made a positive finding about them in my findings immediately below.
How the proposed fourth level responds to the DDO12 criteria for potential height above the three storey preferred height limit
38	I accept that the proposed fourth level responds well to the DDO12 criteria for potential built form above three storeys.  
39	As usefully set out at [46] of the Council written submission, with my comments on each one, the DDO12 criteria for considering additional height above the preferred height limit reads as follows:
Demonstrate that the proposal will achieve the following outcomes (as appropriate):
•	A high standard of architectural design
Comment by Tribunal – I have explained further above why I accept ‘a high standard of architecture’ is achieved here, also relying on the supportive expert evidence of Ms Heggen.   Some notable examples of this are the retention of the existing two storey period front façade, the stepping-down of the building at the rear, the use of high-end materials and the sculptured design of the top section of the building.
•	Innovative environmental design
Comment by Tribunal – I have indicated further above that I accept that the ESD report submitted with the updated plans shows some innovative environmental features of the 18 January 2022 version of the proposal.  For example, the new building will exceed a 70% BESS score which represents ‘excellence’.
•	Minimal overshadowing of adjoining streets, public spaces and residential properties
Comment by Tribunal – with reference to the evidence of Ms Heggen, I accept that most of the new overshadowing falls on the roof of the existing property to the south.  Hence I find that the extent of overshadowing of the abutting property/footpath to the south will be ‘minimal’.  In addition the shadow diagrams provided by the applicant indicate that there is very little difference to the relevant overshadowing for a three storey development, compared to with four storeys.  It seems highly probable that the rear courtyard of the Novacco property on the other side of the laneway will not experience any new overshadowing, as in reality the near shadowing would need to cross the laneway and then ‘climb up’ the full height of the high paling/brick fence on the southern boundary of that property (and the same applies for the rear of the No. 20 Avonmore Street property). 
•	Minimal impact on the amenity of adjoining residential precincts.
Comment by Tribunal – I have explained further above why I accept that there will merely be quite confined (minimal) amenity impacts on the rear areas of the No. 22 and No. 20 Avonmore Street properties which lie on the other side of the rear laneway.
•	Respect for places subject to the Heritage Overlay
Comment by Tribunal – neither the subject land nor any immediately adjacent areas are affected by any Heritage Overlay.  However the period two storey front façade of the existing building commendably will be retained by the proposed redevelopment.
•	Transitions in scale to lower building forms.
Comment by Tribunal – I am satisfied that the proposed four storey design will ‘step down’ in an appropriate way towards the rear, and that the design interfaces in a reasonable way with the abutting lower existing property to the south and north (which itself could be redeveloped in the future).
40	I also at a broad level generally rely on the credible expert evidence of Ms Heggen that the proposal responds favourably to these various criteria.
Final comments and conclusion
41	I am conscious that there was debate at times during the hearing about not just the Samal decision, but other decisions regarding other existing or approved taller buildings in this MAC.  On the one hand, I accept that the Samal decision involves another site which is so close to the subject land as to play a significant role – hence my details comments on same above.  On the other hand, as I have said in many other decisions, decisions on sites further away tend to turn on their own particular location and site characteristics.  Hence I see these other decisions for sites further away as not playing any major role or warranting any particular discussion here.  
42	In addition, if you look hard enough, you can for example find a four storey apartment building approved a little further to the north of the subject land on Hampton Street, but also three storey buildings approved on the Samal site and further to the south.  So there are case examples going both ways.
43	With the originally disputed Conditions 26 and 27, I have adopted the ‘compromise Condition 27’ which Mr Walker later in the hearing circulated and which I understand no other party objected to as a reasonable compromise.  I see no reason to retain Condition 26 as it appeared in the NOD.
44	Otherwise, for the reasons set out above:
(a)	I have found that the remaining contentious condition 1(a) is an over-reach that shall be deleted.
(b)	My orders above have dealt with the other relevant permit conditions to reflect how the hearing unfolded.  

Philip Martin
Senior Member