Readers will remember the 1056-1060 Dandenong Road application for 12 storeys, 173 dwellings and retail/office premises. They will also remember councillors’ ‘compromise’ of a permit for 8 storeys and 70 odd dwellings. Needless to say the VCAT judgement has come down and the developers basically got everything they wanted. We’ve no doubt that VCAT will again become the convenient scapegoat  – it is never but never this Council’s fault that Glen Eira is turning into a developer’s paradise.

We urge residents to have a very careful read of the judgement and to note in particular the following extracts taken directly from – http://www.austlii.edu.au/au/cases/vic/VCAT/2013/745.html

The review site is in Precinct 1 ‘Dandenong Road Precinct’ of the Carnegie Urban Village. There are no specific policies for this Precinct in clause 22.05 as they expired in 2007.

Given the lack of specific policies, Mr Crack took me to the objectives of the Urban Villages Policy, which include:

To encourage increased densities within and around commercial/transport nodes which respects transition to the surrounding residential area.

To ensure development respects the amenity of the surrounding area and provides a transition to the surrounding residential area.

To ensure future development is appropriate to the constraints of infrastructure and vehicular traffic movement (including parking).

Based on these submissions, Mr Crack contends that the Planning Scheme’s policies require that a development must ‘be mindful of and have regard to the prevailing character’ and ‘sit comfortably in both the existing and emerging context’.

Alternately, Mr Pitt took me to Amendments C46 and C77 to the Planning Scheme. In 2005, Amendment C46 introduced new land use and built form directions in the ‘Dandenong Road Precinct’ of the Carnegie Urban Village. Mr Pitt referred to the Explanatory Report for this Amendment, which identified this Precinct as being strategically acceptable for major change, including high density residential development.

In January 2011, Amendment C77 rezoned the site and surrounds from Business 4 to Business 2. This change allowed the land to be used for housing whereas previously it could not. The Explanatory Report for Amendment C77 describes its principal purpose was to facilitate the establishment of large format retail uses this area, however, it also states that:

Other planning policy objectives that will be satisfied as a result of the rezoning include allowing additional office floor space and the potential for new residential accommodation.

The Explanatory Report goes on to say that the zoning change would support and implement local policies relating to housing, urban villages and housing diversity.

Mr Pitt contends the strategic context for this area remains as described in the Explanatory Reports of Amendments C46 and C77 and that the site is a candidate for major change.

I find it is appropriate, as Mr Crack has done, to ‘de-fault’ to the general urban village objectives. I find the Explanatory Report for Amendment C77 is relevant as it describes the justification for the current zoning of the land, however, I will not assume the Explanatory Report for Amendment C46 describes the strategic context for the site and surrounds as the interim controls have expired and have not been re-activated.

I do not need to rely on the Explanatory Report for Amendment C46 to find in favour of the Applicant for Review. I am satisfied that the site’s physical context can accommodate major change at the review site and elaborate on this finding in the reasons below.

I disagree with Mr Crack’s submission that the Planning Scheme’s policies require a regard for the area’s prevailing character. This is not what the policies say. In a nutshell, the policies support transformative change as long as it is site responsive and, in Glen Eira’s case, transitions acceptably to nearby residential areas.

I also see no reason why this will be an isolated building in the short to medium term. There are a number of similarly sized lots in the precinct that could accommodate large buildings. The policy framework supports transformative change and recent rezoning allows this to happen. As such, it is likely that other tall buildings will emerge in this precinct in the short to medium term.

I acknowledge the building will not be screened by street trees such as occurs in some places in the Phoenix Precinct. This is not a reason to reduce its height. Only the lower levels of buildings in the Phoenix Precinct that are screened by trees and the upper levels are fully visible. Apart from this, it would be inappropriate to screen the restricted retail showroom that occupies the building’s lower levels as the showroom relies on exposure to passing trade.

Is it appropriate to restrict the proportion of dwellings that use borrowed light?

Condition 1(a) reads as follows:

No more than 20% dwellings reliant on ‘borrowed light’ (i.e. Type A dwellings facing east). The remainder of the dwellings must include direct natural light and ventilation to all habitable rooms to the satisfaction of the responsible authority. This may result in a reduction of dwellings.

It is common ground that 29% of the proposed dwellings (50 in total) rely on ‘borrowed light’. It is also common ground that these are one-bedroom dwellings of the same design and that all are oriented to the east. It is relevant that the council is not opposed to dwellings with bedrooms reliant on ‘borrowed’ light and only contests the proportion of such dwellings in the building.

Mr Crack contends that limiting the number of ‘borrowed’ light dwellings is justified by Design Suggestion 5.4.1 of the Guidelines for Higher Density Residential Development which encourages development that:

Provide(s) direct light and air to all rooms wherever possible.

He contends that a proportion of 20% of all dwellings is the ‘right balance’ in this building. He justifies this by saying it will ensure that some of the most affordable dwellings will have a level of internal amenity comparable to that of the larger dwellings in the building.

I do not accept this argument. I consider the proposed one-bedroom dwellings have an acceptable level of amenity and I find that Design Suggestion 5.4.1 of the Guidelines does not justify the contention that only 20% of dwellings in this building should rely on ‘borrowed’ light.

On the second point, Design Suggestion 5.4.1 envisages higher density developments may contain some rooms that do not have direct access to light and air. One of the emerging principles on dwellings with rooms reliant on ‘borrowed’ light is that the proportion of such dwellings in a development is an irrelevant consideration on the basis that if a particular dwelling design provides an appropriate level of amenity, then that decision is valid for all such dwellings.

This principle applies directly here. As the council supports 20% of dwellings with bedrooms reliant on ‘borrowed’ light, the amenity of the remaining dwellings of this configuration must be satisfactory.

Mr Kiriakidis relies on empirical surveys of existing restricted retail uses with floorspace of 5,000 square metres or less. He draws on 14 such surveys that indicate an average demand of 1.51 car spaces per 100 square metres and an 85th percentile demand of 2 spaces per 100 square metres. Based on these surveys, he is confident that 32, rather than 48, car spaces will satisfy the showroom’s car parking demand. He notes that the officers of the council’s Transport Planning Department share his view.

Mr Kiriakides statement of evidence also contains a survey of the existing demand for car parking within 200 metres of the site. This survey identified a total of 177 on-street spaces, including 84 that are subject to restrictions during business hours. The surveys show a peak demand of 120 spaces or, put otherwise, an occupancy rate of 68%.

Mr Bluzer submits that this survey is inadequate as it was undertaken in 2011, prior to the opening of the supermarket complex at the corner of Koornong/Dandenong Roads. He also believes the survey was inadequate as it was done for one mid-week day only.

Despite having regard for the issues raised by Mr Crack, Mr Favre, Ms Cranage and Mr Bluzer, I accept Mr Kiriakidis evidence. I find the quantum of surveys of existing restricted retail uses carries more weight than Mr Fauvre and Ms Cranage’s contention that the standard rate should be applied as a matter of principle. I note that the Planning Scheme allows a reduction in parking for a range of reasons, including empirical evidence of a lower rate of demand. In my view, the surveys relied upon by Mr Kiriakidis, demonstrate an empirical demand for restricted retail showrooms that is lower than the standard of the Planning Scheme.

I acknowledge Mr Bluzer’s points about the car parking survey. I would be concerned about the usefulness of the survey if it showed an occupancy rate far higher than 68%, yet it does not. At 68% it indicates that almost one in three car spaces were available at the time of the survey. This is a considerable number.

Mr Kiriakides’ evidence is that the likely traffic volumes are well within acceptable standards. His surveys demonstrate the Egan Street arm of the Koornang Road/Egan Street/Woorayl Road intersection will remain well below saturation levels if the building was approved.

He also notes the comments of the council’s officers that: ‘The convenient accessibility of the site to public transport will encourage greater use of public transport. It is acknowledged that the proposal will result in an intensification of vehicle movements in the area. This is a by-product of both State and Local Planning policies channelling more intensive development and use into activity centres such as Carnegie. An opportunity to exit onto Dandenong Road is considered to be a significant advantage for this development site.

I accept Mr Kiriakides evidence and support the comments of the council’s officers.