Planning and Environment Act Panel Report · Planning and Environment Act 1987 ... Amendment C133...

Amendment C133 to the Kingston Planning Scheme Panel Report 23 December 2013

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Planning and Environment Act 1987

Panel Report

Kingston Planning Scheme

Amendment C133 and Planning Permit Application KP12/555

Patterson River Golf Club

23 December 2013


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Planning and Environment Act 1987

Panel Report pursuant to Section 25 of the Act

Amendment C133 to the Kingston Planning Scheme

Permit Application KP12/555

Alison Glynn, Chair Andrew Natoli, Member


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Contents

Page

1 What is proposed? ......................................................................................................... 1 1.1 The Amendment ...................................................................................................... 1 1.2 The subject site and surrounds ............................................................................... 1 1.3 Issues dealt with in this report ................................................................................ 2

2 Strategic Planning Context ................................................................................................... 3 2.1 Policy framework ..................................................................................................... 3 2.2 Planning scheme provisions .................................................................................... 3 2.3 Ministerial Directions and Practice Notes ............................................................... 5

3 Is the rezoning strategically justified? ................................................................................. 6 3.1 The Issues ................................................................................................................ 6 3.2 Conversion of Special Use land to Residential land ................................................ 6 3.3 Conclusions .............................................................................................................. 8

4 Should the Heritage Overlay apply to this site? .................................................................. 9 4.1 The issue .................................................................................................................. 9 4.2 Discussion ................................................................................................................ 9 4.3 Conclusions ............................................................................................................ 12 4.4 Recommendations ................................................................................................. 12

5 Is the proposed subdivision acceptable? ........................................................................... 13 5.1 The Issues .............................................................................................................. 13 5.2 Will the proposal result in an unreasonable loss of views of the golf

course? .................................................................................................................. 13 5.3 Will the proposal result in excessive car parking and traffic demands on

local streets? ......................................................................................................... 15 5.4 Will subdivision lead to harmful soil disturbance that may expose acid

sulphate soils? ....................................................................................................... 16 5.5 Will the height and form of future dwellings on the subject site impact

the character and heritage values of the adjoining clubhouse, or any heritage values of the former bowling club site? ................................................. 18

5.6 Conclusions ............................................................................................................ 19 5.7 Recommendations ................................................................................................. 19

6 Conclusions and Recommendations ............................................................................. 20


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List of Figures

Page

Figure 1 Aerial Photograph of subject site and surrounds.. .................................................. 2

Figure 2 Existing zoning provisions of subject site and surrounds. ....................................... 4

Figure 3 Kingston Planning Scheme Ordinance, Extract from page 2 and 3 of Schedule to Heritage Overlay ................................................................................... 4

Figure 4 Extract from Map 9HO as sourced from DTPLI Planning Scheme Maps ......................................................................................................................... 5

Figure 5 Amendment C46 Part 1 ‐ Approved Map 9HO, detailing site HO18 ...................... 10


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Amendment Summary

The Amendment Amendment C133 to the Kingston Planning Scheme.

Subject Site 1 The Fairway, Bonbeach.

Purpose of Amendment To rezone approximately 2,747 sqm of land, currently zoned Special Use 1 Zone to Neighbourhood Residential Zone. The Amendment also removes reference to “bowling club” within HO18 in Schedule 43.01 to the Heritage Overlay of the Planning Scheme as part of the designated area of heritage significance at the golf club.

Concurrent with the exhibition of the amendment is a planning permit application that seeks approval to subdivide the land into five lots with provision of building envelopes on each lot.

The Proponent Patterson River Golf Club.

Planning Authority Kingston City Council.

Exhibition 11 July 2013 to 22 August 2013.

Panel Process

The Panel Alison Glynn (Chair)

Andrew Natoli

Directions Hearing 21 October 2013

Panel Hearing 20 November 2013

Site Inspections 20 November 2013

Appearances Kingston City Council represented by Mandy Baigel. She was assisted by Rosa Zouzoulas and Tanya Sokolowski.

Patterson River Golf Club represented by Mr Richard Umbers, of Peninsula Planning Consultants.

David Normington

Submissions Individual submissions opposing the amendment

S and N Volodomanov,

D Normington

Pro ‐ forma submissions

D Deegan,

B Laimbeck,

N and G Fisher,

E Weir,


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N Smith,

K Lindley,

S Moore,

B Wall,

M Vinocuroff,

B and E Raymond,

W Jacobs and

M Maguire.

No objection

South East Water,

EPA.

Date of this Report 23 December 2013


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1 What is proposed?

1.1 The Amendment

Amendment C133 (the Amendment) to the Kingston Planning Scheme (the Planning Scheme) was prepared by the Kingston City Council (Council) as Planning Authority. As exhibited, the Amendment proposes to:

Rezone 2,747 square metres of land at the southern corner of Patterson River Golf Course from Special Use Zone Schedule 1 to Neighbourhood Residential Zone (the NRZ);

Amend the Residential Land Use Framework Plan map at Clause 21.05 to include the site within the Incremental Change Area; and

Correctly apply the Schedule 18 to the Heritage Overlay (the HO18)by amending the Schedule to the Heritage Overlay in the planning scheme ordinance so that the Heritage Place Description states: “The heritage place includes the clubhouse accessed from The Fairway, and adjoining putting green situated east of the clubhouse”.

Concurrent with the preparation of the Amendment is a planning permit application made pursuant to Section 96A (1) of the Planning and Environment Act 1987 allowing for the subdivision of land into 5 residential lots (Planning Application No KP12/555).

1.2 The subject site and surrounds

The amendment and planning permit application apply to approximately 2,747 square metres of land at the north east corner of The Fairway and Mascot Avenue / La Perouse Boulevard, Bonbeach.

The land is owned by the Patterson River Golf Club and comprises disused bowling greens associated with a bowling club that closed in 2007. Since then the land has remained unused.

The land sits to the south of the existing golf club clubhouse, which faces to the north east, away from the subject site, over the golf course to the north east.

To the south east and south west is residential development. La Perouse Boulevard to the south east is private road that services a number of dwellings along the Patterson River that runs to the south east. This road and the dwellings east of La Perouse Boulevard were previously excised from the golf club in the early 2000s, as a result of Amendment C13 to the Planning Scheme.


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Figure 1 Aerial Photograph of subject site and surrounds.

Subject site marked in red.

1.3 Issues dealt with in this report

Submissions opposing the amendment and planning permit application question if the land should be removed from the golf club. This issue primarily relates to whether the former bowling club should be retained as part of the recreation facilities of the golf club, being identified in the heritage overlay to the Planning Scheme ordinance. The submissions also oppose the redevelopment of the land for residential use and subdivision on the basis that it will create unreasonable amenity impacts through additional traffic and on street car parking. One submitter also opposes the subdivision on the basis that it will lead to development that will block views from their property across the golf course.

This report deals with the issues under the following headings:

Is the rezoning strategically justified?

Should the Heritage Overlay apply to this site?

Is the proposed subdivision acceptable?

In reaching its conclusions and recommendations, the Panel has read and considered the submissions and a range of other material referred to it. This includes written submissions, evidence and verbal presentations. The following chapters of this report discuss the issues raised in submission relating to the Amendment in further detail, with the Panel’s conclusions and recommendation provided in Chapter 6.


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2 Strategic Planning Context

Council provided a response to the Strategic Assessment Guidelines as part of the Explanatory Report.

The Panel has reviewed the policy context of the Amendment and makes a brief appraisal of the relevant zone and overlay controls and other relevant planning strategies.

2.1 Policy framework

A range of State and local planning policy must be considered in the evaluation of proposed planning provisions. Provisions of particular relevance to the Amendment include:

(i) State Planning Policy Framework (SPPF)

Clause 11 Settlement, including 11.02‐1 supply of urban land.

Clause 12 Environment including 12.01 Biodiversity, 12.02 Coastal areas.

Clause 13 Environmental Risk.

Clause 15, Urban environment including 15.01‐1 Urban Design and 15.03 Heritage.

Clause 16.01 Residential development including 16.01‐2 Location of residential development, 16.01‐4 Housing diversity and 16.01‐5 Housing affordability.

Clause 18 Transport.

(ii) Local Planning Policy Framework (LPPF)

Clause 21.01 ‐ relating to the supply and location of housing within existing urban areas.

Clause 21.05 – Residential Land Use.

Clause 21.13 – Heritage.

Clause 22.11 – Residential Development Policy.

The implications of the Amendment for the achievement of the range of planning policies are discussed in the following chapters.

2.2 Planning scheme provisions

(i) Zones

The land is currently zoned Special Use – Schedule 1. The schedule has a purpose “To provide for the use and development of land as a golf course and associated uses”.

The land to the south and west is zoned Residential 3. Details of current zoning (as at 28 November 2013) are detailed in Figure 2 below.


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Figure 2 Existing zoning provisions of subject site and surrounds..

Subject site marked in red.

(ii) Overlays

The Planning Scheme ordinance includes a schedule of listed heritage places as part of Clause 43.01 of the Planning Scheme. The heritage place, listed in the table against the Planning Scheme map reference HO18 states that the heritage place includes “the clubhouse and adjoining bowling green situated to the south of the clubhouse, both with direct access from The Fairway”. A copy of an extract from the schedule as listed in the Planning Scheme is detailed below in Figure 3.

Figure 3 Kingston Planning Scheme Ordinance, Extract from page 2 and 3 of schedule to Heritage Overlay

Map 9HO that forms part of the Planning Scheme identifies a heritage site “HO18”. An extract of Map 9HO (as sourced on 28 November 2013) is detailed in Figure 4 below. This does not include the land subject of Amendment C133 as part of site HO18.


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Figure 4 Extract from Mao 9HO as sourced from DTPLI Planning Scheme Maps

(iii) Clause 56 – Residential Subdivision

Clause 56 provides a state‐wide planning framework to assess and manage residential subdivision. This clause provides objectives, standards and decision guidelines which are intended, amongst other things:

To achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character.

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

To encourage residential development that is responsive to the site and the neighbourhood.

To create liveable and sustainable neighbourhoods and urban places with character and identity.

To achieve residential subdivision outcomes that appropriately respond to the site and its context.

2.3 Ministerial Directions and Practice Notes

Relevant Ministerial Directions include:

Ministerial Direction No 11 – Strategic Assessment of Amendments

Ministerial Direction on the Form and Content of Planning Schemes under section 7(5) of the Act

Ministerial Direction No 9 – Metropolitan Strategy.


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3 Is the rezoning strategically justified?

3.1 The issues

Mr Normington and other pro forma submissions raised a number of issues questioning if the amendment was strategically justified.

In this chapter the Panel discusses the issues raised in relation to the loss of open space and whether this land is appropriate for residential use.

3.2 Conversion of Special Use land to Residential land

The submitters contend that the land should not be excised from the golf club in what they submit is an ad hoc manner. They contend the use of the subject site for residential purposes is inappropriate as it is not close to shops and community services and will lead to a loss of a community resource being part of the golf club and a bowling club.

The subject site forms part of an area owned by the Patterson River Golf Club. The Panel understands from submissions made that the golf club was established in the 1920s and the associated bowling club was established in the 1950s or 1960s. The bowling club ceased operation in 2007 and the bowling club land has since remained unused and become derelict.

The golf club is a privately owned club. As such the subject site is not public open space. The purpose of the Special Use Zone – Schedule 1 is to provide for the use and development of land as a golf course and associated uses. Whilst a bowling club may have formed an associated use of the golf club, the Panel finds there is no substantive state or local policy that directs this land to be used for a bowling club. The golf club, a private entity, has determined that the land is surplus to its needs.

State policy at clause 11.02 – 1 has an objective to ensure there is a sufficient supply of urban land. This includes strategies to plan for urban growth through considering opportunities for the consolidation, redevelopment and intensification of existing urban areas. This sits parallel to State policy at clause 11.04 – 5 of the Planning Scheme, which generally seeks to contain urban development within the established growth boundary of Melbourne.

State policy also promotes the protection of open space, but this can only be directed at public open space that is owned by the community and accessible to the general public. If the land is no longer needed by the club, the Panel accepts that based on the objectives of planning to provide fair, orderly and sustainable use of land in a manner that provides an efficient living environment, there is no land use impost to the subject site being redirected from a defunct recreation use to a use more appropriate use to its location within an established urban area of Melbourne.

Mr Normington submitted the subject site was not accessible to shops and public transport and therefore not suitable for residential use. The subject site sits directly north and east of existing residential land. Whilst the area is not highly accessible, it is not isolated or so inaccessible from general urban services that it is unusable as residential land. The subject site is approximately 500m from the nearest bus route and 950m from the Bonbeach Railway Station and associated local shopping centre. In the context of making efficient use of existing urban land the Panel is satisfied the subject site is appropriately located for residential use.


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Whilst the rezoning of the land will result in the loss of land that is perceived by some residents as open space and a community resource, it is a private club. The use of the land for residential purposes is consistent with state and local policy, which generally seeks to make efficient use of urban land.

Submissions also contended that if the land is to be redeveloped it should occur as a broader redevelopment of the golf club, not simply in what Mr Normington described as an ‘ad hoc’ sale of one small section of the club.

The Panel does not see that the amendment creates a disorderly or an inappropriate planning outcome as a result of it being excised from the golf club, rather than a wholesale redevelopment of the club. The excision of the land is 2,747 sqm of land from the broader 58.66 hectares of golf club land. The vast majority of the golf club land will remain. Should this broader land be redeveloped in the future the Panel does not see that this small corner section will inhibit the orderly and proper planning of such a redevelopment. This is due to the size of land remaining as a development parcel and the corner location of the subject site which minimises any intrusion or incapacity of the broader land to be redeveloped in a coordinated manner in the future.

(i) Use of the Neighbourhood Residential Zone

Whilst submissions did not question the proposed Neighbourhood Residential zone, the Panel considers it worth noting that it understands the rationale for the exhibited amendment to zone the land to Neighbourhood Residential Zone was derived from the authorisation from the Minister for Planning on 7 June 2013. This authorisation was conditional on the basis that “The amendment must be modified to utilise the suite of reformed residential zones that will be introduced into the Victorian Planning Provisions (VPPs).”

The Panel accepts this was a requirement of the exhibited amendment and the rationale of Council to then use the NRZ was on the basis that this zone would be the most appropriate zone for this subject site as it would allow for the type of dwellings which would best fit in with the surrounding incremental change context of the area.

The use of this new zone, however, will perhaps be seen to leapfrog the coordinated review and introduction of the new residential zones across the whole municipality. The surrounding land is currently zoned Residential 3. Council submitted that it is working toward a planning scheme amendment to introduce the new residential zones into the Planning Scheme, but as yet Council has no formal position on the future zoning of the adjoining residential land under the new zones. The Panel notes that when this broader residential zone review progresses, the zoning of the subject site may need to be reviewed to ensure that the appropriate residential zone is applied having regard to the zoning chosen for the surrounding, currently Residential 3, areas.

(ii) Other issues

Mr Normington questioned a number of facts about the golf course land. These included the ownership of a small lot of land north west of the clubhouse, why a small section of land is retained as having frontage to La Perouse Boulevard and the impact of a possible level crossing realignment of the Frankston Railway line near Bonbeach.

From the material provided by Mr Normington the Panel does not see that any of these matters require further consideration or review in the context of the amendment or the permit


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application and consider they do not affect the amendment’s validity or justification. The Panel considers all these issues as peripheral to the amendment and subdivision proposal and are not of such relevance that they make the proposal unacceptable.

3.3 Conclusion

The Panel is satisfied that the amendment to rezone the land from Special Use ‐ Schedule 1 to Neighbourhood Residential can enable an appropriate change of use for the land and is strategically justified.


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4 Should the Heritage Overlay apply to this site?

4.1 The Issue

Mr Normington and a number of the pro forma submissions oppose the removal of the heritage overlay reference “and adjoining bowling green” in the schedule to Clause 43.01 as it will compromise the integrity of the heritage listed golf clubhouse, in particular when viewed from its southern aspect.

Mr Normington also submitted that the bowling club site should be reinstated into the Heritage Overlay maps. He submitted that the bowling club formed an important part of the history of the country club since the bowling club was established in the 1950s or 60s. He stated that as a former Councillor of the City of Kingston he attended a bus trip in or about 2000 when sites of potential inclusion in the heritage overlay were visited. He stated that this included the golf club and verbal reference was made to the bowling club as part of the area of interest.

Mr Normington further submitted that the bowling greens may have been one of the foundation clubs for the “Electric Light Bowling Clubs Association” founded in 1954. He stated the stanchions and associated overhead lighting infrastructure were unique and were one of the last examples of its kind.

4.2 Discussion

Heritage Overlay 18 (HO18) was introduced into the Planning Scheme in 2005 via Amendment C46 Part 1 to the Planning Scheme. This Part 1 of Amendment C46 included heritage listing of properties with no opposing submissions.

The approved documentation for Amendment C46 Part 1 included a schedule listing of HO18 to be added to the Planning Scheme ordinance with the heritage place identified as “The heritage place includes the clubhouse and adjoining bowling green situated south of the clubhouse, both with direct access from The Fairway.”

The Planning Scheme map forming part of Amendment C46 Part 1 identified land including the clubhouse, putting green to the direct north east of the main building façade and the bowling green to the south / south east of the side of the clubhouse building, as identified in Figure 5 below.


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Figure 5 Amendment C46 Part 1 ‐ Approved Map 9HO, detailing site HO18

Amendment C46 derived from the 2000 Kingston Heritage Study and the subsequent Stage 2 – Place Identification Forms in 2001. Both reports were prepared by Bryce Raworth Pty Ltd.

The Place Identification Form – dated 2001, for the Patterson River Country Club identifies the type of place as “clubhouse”. The history and description of the clubhouse refers to the building only.

The statement of significance says:

“Established in 1926 with the residential clubhouse constructed in 1937, the Patterson River Country Club is of social, historical and architectural significance at its local level. The institution is socially and historically significant a part of the interwar profusion of golf clubs within the Municipality through the mid‐twentieth century. It has been a social and recreation focus for the district for over seventy years. Although considerably extended, the clubhouse is architecturally significant for its early façade and a distinctive central stair, tower and kiosk arrangement”.

The recommendation then states:

“A heritage overlay is recommended for the building. However, the significant fabric is limited to the remnant sections of the original façade incorporating the central stair, tower and kiosk arrangement. The balance of the physical fabric contributes little to the significance of the place and could be sympathetically remodelled if required to ensure that the valued use of the site continues.”

The statement of significance makes no reference to the bowling green or putting green. The recommendation for the clubhouse clearly identifies that it is the main north east facing façade of the original 1937 building that is considered significant.

Council submitted the bowling green was erroneously included in the maps and the schedule to the overlay rather than the site of the putting green, which was the intention of the overlay.


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Council submitted the mapping error was resolved in a subsequent Amendment C113. However, no change was made to the HO18 schedule reference in Clause 43.01 of the Planning Scheme ordinance. Amendment C113 was undertaken by the Minister for Planning and exempt from notice pursuant to Section 20(4) of the Planning and Environment Act 1987. As such no exhibition was undertaken and no submissions were received. Mr Normington submitted that Amendment C113 was undertaken erroneously as it did not simply correct an error but changed the intent of the heritage listing for HO18.

In accordance with the Practice Note on Applying the Heritage Overlay (September 2012), there should be an accurate correlation between the Heritage Overlay schedule and the Heritage Overlay map. The statement of significance prepared for the site should provide guidance in identifying the areas to which the overlay applies.

Consequently, either the map or the ordinance needs to be corrected so that the two references correlate. From a review of the original statement of significance, and reasons elaborated on below, the Panel finds it is the ordinance reference that requires correction.

Ms Baigel and Ms Zouzoulas explained on behalf of Council that they considered the reference to the bowling green should have been to the putting green that sits in the foreground of the north east façade of the clubhouse which is identified as significant. Ms Zouzoulas submitted that she was the Council officer that worked with Mr Raworth in 2005 in translating the heritage identification sheets into references in the Planning Scheme. In doing this she explained that a verbal decision was made to include the surrounds of the clubhouse in order to provide a setting to the heritage place. This was to ensure that if the golf course was redeveloped then the clubhouse elements of significance, being the north east original façade would be protected in a context of a clubhouse setting. Ms Zouzoulas stated that this was intended to be the main foreground of the clubhouse façade which is the putting green. She submitted that neither the putting green nor the bowling club were considered significant, but it should have been the putting green identified in the place of significance to provide the foreground to the heritage façade of the clubhouse.

The Panel accepts this is somewhat consistent with the approach taken to the heritage listing of other golf clubhouses elsewhere in the municipality, including the Commonwealth Golf Club and the Woodlands Golf Club. The Place Identification Forms for both these clubs are somewhat clearer, with the sheets recommending a defined boundary to the heritage overlay place. The Woodlands Golf Club is recommended for listing “the clubhouse, car park and entry only”. The Commonwealth Golf Club is recommended for listing “the clubhouse and that section of the gardens and grounds between the principal entry and the clubhouse”. Both these settings are toward the street, rather than the golf course.

Mr Normington submitted that the putting greens had been extensively remodelled over the years. Ms Zouzoulas and Ms Baigel likewise agreed that these had been remodelled and were not in themselves significant. They were only significant to the extent that they provided a setting and an immediate context to clubhouse buildings that were of themselves significant to the extent that warrants protection through the Planning Scheme.

The bowling club is not identified in any of the material that established Amendment C46 Part 1 as having significance. Whilst Mr Normington suggested it may have significance as a foundation club of the Electric Light Bowling Clubs Association, the Panel has no evidence that this club was


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ever part of this association, or that being a foundation club of the association is historically significant.

From the statement of significance, which is the basis upon which any decision about the heritage place must be made, the element of significance is the north east facing, 1937 façade of the clubhouse, which faces toward the golf course, over the putting green. There is no reference to the bowling club, for either its social significance or any uniqueness of its fixtures (that have been removed after Amendment C113 was approved). Nor were the putting greens identified as having heritage significance. The place identification sheet acknowledges that extensive renovations and alterations have occurred to the clubhouse over the years. This includes a large 1980s wing being added to the south of the main façade that sits between the original fabric and the bowling green.

4.3 Conclusions

The Panel therefore concludes no reason for the bowling club to be identified in HO18. It also accepts that the map and ordinance should remove reference to the bowling club. The Panel considers that any explicit reference to the bowling club, bowling greens or putting greens in the defined “heritage place” of the Planning Scheme is misleading and should be removed. The Panel’s view is that heritage place should be defined simply as:

“The heritage place includes the clubhouse and its open landscape setting to the principal north east facade.”

This is different to that exhibited, but this is considered a better reflection of the actual elements of significance to be protected. The proposed amended wording refers to the façade as facing north east. The schedule in the overlay refers to the putting greens as facing east. The Panel’s considers the building faces ‘north east’ but if the reference was simply ‘east’ the Panel thinks the statement would remain sufficiently clear. The principal concern of the Panel is that the place of significance should only identify the clubhouse as having significance in a setting that allows the original clubhouse fabric to be read as such, so as to correlate with the statement of significance in the place identification sheet.

4.4 Recommendation

The Panel recommends:

The Amendment as it relates to correcting the Schedule to Clause 43.01 should include alteration to listing the heritage place under HO18 as:

“The heritage place includes the clubhouse and its open setting to the principal north east facade.”


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5 Is the proposed subdivision acceptable?

5.1 The Issues

A number of issues were raised by nearby residents in submissions about the proposed subdivision that will lead to the opportunity for five, double storey dwellings to be constructed on the former bowling club site. Key issues the Panel identifies from submissions made are:

Will the proposal result in an unreasonable loss of views of the golf course?

Will the proposal result in excessive car parking and traffic demands on local streets?

Will subdivision lead to harmful soil disturbance that may expose acid sulphate soils?

Will the height and form of future dwellings on the subject site impact the heritage values of the adjoining clubhouse, or any heritage values of the former bowling club site?

Each of these issues is addressed below.

5.2 Will the proposal result in an unreasonable loss of views of the golf course?

(i) Issue

Mr and Mrs Volodomanov, who reside at Unit 2 La Perouse Boulevard, submitted the development of the land for two storey dwellings “will completely kill the view of the golf course from our windows and balcony – and it is the only view that we have and enjoy.”

The Volodomanov dwelling is two storeys with a first floor balcony facing Mascot Avenue and takes in views from the north west and The Fairway extending around to the north east, including direct views over the subject site and across to the clubhouse buildings. The available views from the balcony also extend across sections of the golf course to the east of the subject site and east along La Perouse Boulevard. The principal vista of the golf course is to the north east of the amendment land.

Council and the Proponent contend that the submitters are not entitled to expect that such views would be protected and do not accept that the impacts on views from this property will in any case be unreasonable.

(ii) Discussion

In rejecting the Volodomanov submissions Mr Umbers relied on the Tashounidis principles,

which were originally set out in the AAT decision of Tashounidis v Flinders SC (1987) 1 AATR 116) and further refined by VCAT in Healy v Surf Coast SC [2005] VCAT 990 (26 May 2005) (at

paragraph 21). The Panel agrees that, to the extent that they are applicable to views from the Volodomanov dwelling, these decisions correctly state and summarise the principles relevant to the assessment of the impacts of new development of views as a component of residential amenity. These principles are (at paragraph 21 of Healy v Surf Coast SC [2005] VCAT 990 (26 May 2005)):

The Tribunal considers that the Tashouindis principles have now been refined to the extent that they should be re‐stated as follows:

(a) there is no legal right to a view;


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(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of “reasonableness”, it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

The Planning Scheme does not address the issues of views either generally or specifically in this area in relation to views over the Patterson River Golf Course.

Any new dwellings on the subject site will most likely interrupt existing views directly to the north across to the clubhouse buildings and car park from the Volodomanov dwelling. Views to the north east, which includes the wetlands and perimeter vegetation of the golf course, will still be available from the Volodomanov dwelling. Having regard to the overall panorama available from the Volodomanov dwelling it is perhaps the latter views which are more important in terms of its residential amenity.

There is no doubt that views from the Volodomanov property to the north and north east form part of its existing residential amenity and that there will be a noticeable change to these views following development of the subject site. However the subject site is private land which over time could have accommodated additional golf club buildings, but is now considered surplus to the club’s needs. When purchasing their property there was no reasonable basis for the Volodomanov’s to expect that this vista would remain unchanged or be protected through the planning system, in particular given the manner in which their dwelling is oriented i.e. directly north of Mascot Avenue.

Notwithstanding these findings the Panel notes that development of the lots will be subject to three dimensional building envelopes which will serve to temper the intensity of the built form on the new lots. These restrictions include limitations on the height and extent of two storey development which may occur to the east.

Having regard to the above and the Tashounidis principles the Panel concludes that, whilst the proposed subdivision will result in change to the vista from the Volodomanov dwelling, these impacts are reasonable and no not warrant refusal of the planning permit.


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5.3 Will the proposal result in excessive car parking and traffic demands on local streets?

(i) Issue

Submissions from residents raised concerns in relation to existing traffic and parking conditions and the potential impacts that the additional lots will generate in this regard. In particular submitters noted issues for traffic through to the Station Street/Nepean Highway railway crossing and the lack of parking along La Perouse Boulevard which overflows into The Fairway.

Council, including its traffic engineers, did not raise any concerns in relation the proposal in traffic terms. Council officers at the hearing did question if a further restriction of access to the proposed lot 2, at the intersection of The Fairway and La Perouse Boulevard was warranted to minimise any access conflict with a driveway too close to this intersection.

In response to the submitters’ concerns the Proponent notes that the traffic and parking impacts of the proposed subdivision would be similar to unit developments which have occurred in the surrounding area.

(ii) Discussion

The proposed subdivision will add an additional five lots, or households, into an existing residential area, characterised by single dwellings and townhouses and interspersed with some incremental unit development.

Inspections of the area by the Panel did not reveal any obvious traffic or parking issues which have been overlooked by the Proponent or Council.

No expert evidence was put before the Panel which would suggest that this level of increase in traffic would cause any material impact on the operation of the local traffic network, including Mascot Avenue, La Perouse Boulevard or The Fairway.

Whilst the proposed subdivision may see some minor additional traffic and parking in the immediate locality, overall the Panel considers the impact of this will be negligible on the broader residential precinct and be easily manageable in this context. The Panel therefore concludes that the proposed subdivision will not cause any unreasonable traffic or parking impacts and is acceptable in this regard.

Access to lot 2

At the hearing Council officers invited the Panel to consider whether an additional planning permit condition was needed to further restrict the access to Lot 2, to within the proposed common accessway, thereby restricting any direct access to The Fairway. Access to the section of La Perouse Boulevard abutting the subject site is likely to be restricted by what appears to be an area of separately owned land (Lot B, PS 518567H) between the lot and the La Perouse Boulevard. In addition La Perouse Boulevard itself is included within the common property of the La Perouse estate and is therefore owned and managed by the relevant owners corporation for the estate.

The Panel agrees that providing direct access from Lot 2 to The Fairway may be unsafe due to its proximity to the intersection. However, the Panel does not see that this as a matter that


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requires specific restriction on the plan of subdivision. Any direct access to The Fairway can only be provided if Council, as the responsible road authority, approves the location of a crossover or road opening as part of the submission of engineering plans and the issue of a Vehicle Crossing Permit. The Panel considers there is adequate opportunity for Council to further consider and regulate appropriate access at the time of subdivision certification, rather than by creating a further restriction on the plan. Condition 6 of the proposed planning permit requires engineering plans to be submitted prior to certification of the subdivision plans. This condition however, limits the engineering plans to providing for drainage of each lot. The Panel considers a minor change to this condition could require the engineering plans to also designate the location of crossovers and thereby enable Council to address this matter as part of subdivision certification.

5.4 Will subdivision lead to harmful soil disturbance that may expose acid sulphate soils?

(i) Issue

The subject site is located in an area in which acid sulphate soils are known to naturally occur. As part of the permit application process Council requested further information in relation to the presence of potential acid sulphate soils on the land and the potential risks associated with its development.

A Preliminary Site Assessment (June 2012) and an Acid Soil Assessment (20 March 2013) and Acid Sulphate Soil Management Plan (June 2013) were prepared by Tonkin & Taylor Pty Ltd and submitted by the Proponent in support of the Amendment and the permit application.

Council is satisfied that any risks associated with acid sulphate soils during construction can be adequately managed in accordance with the submitted Acid Sulphate Soil Management Plan. A condition has been included on the draft permit conditions to require all works to be carried out in accordance with this plan and the Proponent accepts this condition.

Mr Normington raised concerns as to whether the issue had been properly addressed, however he did not make any detailed criticism of the technical reports nor did he seriously question their credibility.

As part of the amendment and permit assessment process, the EPA reviewed the soil assessments and advised Council that it has no concerns with the issuing of a planning permit for the proposed subdivision and has suggested a number of further permit conditions be considered.

(ii) Discussion

The Panel understands that risks associated with potential acid sulphate soils occur principally as a result of their disturbance and exposure, when they can develop acidic conditions. The key issues therefore in managing the presence of these soils is during periods where significant disturbance and exposure is likely to occur, which in this case is during the development of the subdivision and possibly during construction of dwellings.

The soil assessments indicate that there are two soil strata which may contain potential acid sulphate soils on the subject site, including soils of moderate risk at between 0.45 and 0.90 metres and soils exhibiting strong potential at 1.9 metres. The Acid Sulphate Soil Management


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Plan notes that it is most likely that potential acid sulphate soils would be encountered during the installation of building footings and trenching for services. The plan did not consider that basement developments as likely given development which is typical to the local area. The management plan sets out measures to manage potential acid sulphate soils on the land according to the following steps (in order of priority):

i. Avoiding disturbance.

ii. Minimise disturbance.

iii. Prevent oxidation.

iv. Treat acidity.

v. Dispose of material offsite.

Whilst Mr Normington raised concerns regarding this issue no submissions to the Panel ultimately questioned the veracity of the soil assessments or the appropriateness of the Acid Sulphate Soil Management Plan as submitted by the Proponent.

The Panel considers that the measures identified in Acid Sulphate Soil Management Plan are an appropriate response to the identified risks and these should be implemented through any development approval for the subject site.

However the mechanism chosen to implement the management plan may not be appropriate given the identified risks and the need for the plan to have effect beyond the completion of the subdivision works. Condition 8 of the draft permit conditions only mandates compliance with the management plan during the development of subdivision works, whereas the management plan is intended to apply to any excavations which may intersect potential acid sulphate soils on the subject site. The management plan itself identifies that such soils are most likely to be encountered during the excavation of building footings, however it is currently not proposed to apply the management plan beyond the subdivision works. It is noted that single dwellings could be established on the new lots without the need for a planning permit.

Whilst the soil assessors have determined that the excavation of basements is unlikely it is still possible that such development may occur, as it is possible that other underground structures may occur e.g. swimming pools, which may also need to displace significant amounts of soil excavated at depths that will intersect potential acid sulphate soils.

Therefore in light of the risks which the management plan itself identifies the Panel believes it would be appropriate for the management plan to also be implemented via an agreement prepared and registered on title to the subject site and new lots pursuant to section 173 of the Act. A section 173 agreement will provide notice to future lot owners of the potential risks associated with excavations on the lots and require any excavation likely to intersect potential acid sulphate soils to be carried out in accordance with the management plan.


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5.5 Will the height and form of future dwellings on the subject site impact the character and heritage values of the adjoining clubhouse, or any heritage values of the former bowling club site?

(i) Issue

Mr Normington submitted the subdivision of land, that will lead to potentially five double storey dwellings on the land, would impact the vistas of the clubhouse and remove any opportunity to reinstate the bowling club that he contended had heritage values.

(ii) Discussion

The Panel has already determined above in Chapter 4 that it does not see the bowling club as having heritage significance based on the place identification sheet and its statement of significance that formed the basis of Amendment C46 and the inclusion of the clubhouse in the Heritage Overlay.

Even if Amendment C113 had not occurred, and the heritage overlay as established in Amendment C46 was in place, the primary consideration of any development in the heritage overlay would be to ensure the heritage place was not demolished or that the significance of heritage place was adversely affected. To determine this, the decision guidelines of Clause 43.01 require consideration of the significance heritage place based on the applicable statement of significance, heritage study and any applicable conservation policy.

From the Panel’s assessment of the statement of significance, development on the bowling greens would not impact the significance of the place identified as warranting protection. The bowling green, whilst identified in the schedule to HO18 is not identified in the statement of significance. As such, even if the amendment did not include removal of the heritage overlay reference, the statement of significance, that Clause 43.01 directs the Panel to rely upon does not suggest there is anything at the bowling green site that contributes to the significance of the heritage place.

There is explicit comment in the statement of significance that works that do not impinge on the north east original wing of the clubhouse building should be enabled to allow ongoing viability of the club. The proposed subdivision includes building envelopes with an eight metre high maximum building envelope. A survey plan tabled by Mr Umbers indicates that the western part of the clubhouse has a pitched roof at a maximum height of RL 10.01 metres. The main, original 1937 building form is not notated on the survey plan, but from inspection appears to be somewhat higher than this western pitched roof. The subject site ground level varies between RL 1.7 and 2.1m. An 8 metre high building above the ground level of the subject site would sit at or below the western building roof pitch, and about the same height of the south of the 1980s building that is expressly identified in the place identification sheet as not being significant.

The proposed subdivision lots are approximately 500sqm, with smaller building envelopes within each lot. Any dwelling on the lots, close to the clubhouse will therefore be smaller in bulk and scale even if 8 metres high, due to the domestic form of a dwelling, compared to the clubhouse due to the overall smaller forms possible with the imposed building envelopes that form part of the lots created.


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The former bowling club site sits somewhat to the side of the clubhouse building and toward the service area of the clubhouse. The Panel is satisfied that any subdivision of this land will not result in any significant adverse impacts on the character of the subject site and surrounds or the heritage values of the significant elements of the clubhouse.

5.6 Conclusions

The Panel concludes that:

The proposed subdivision and subsequent development of the lots will not cause any unreasonable impacts on the existing residential amenity of surrounding properties, including views presently enjoyed from these properties.

The proposed subdivision will add an additional five lots to an existing residential area and will not cause any unreasonable traffic or parking impacts.

The measures identified in Acid Sulphate Soil Management Plan are an appropriate response to the identified risks associated with the disturbance of potential acid sulphate soils on the subject site and these should be applied to both subdivision works and subsequent development on the new lots.

The proposed subdivision, with building envelopes to restrict the height and bulk of future dwellings can ensure that the character and heritage values of the clubhouse and surrounds is maintained.

5.7 Recommendations

The Panel recommends that the following new condition be included in the draft Planning Permit KP12/555:

Before the plan of subdivision is certified under the Subdivision Act 1988, the owner must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987, and make application to the Registrar of Titles to have the agreement registered on the title to the land under section 181 of the Act, which provides for the following:

(a) That any excavation or development on the lots to be created must be carried out in accordance with the Acid Sulphate Soil Management Plan (Tonkin & Taylor, March 2013) to the satisfaction of the Responsible Authority.

The owner must pay the reasonable costs of the preparation, execution and registration of the section 173 agreement.

The Panel recommends that Condition 6 of the permit, as exhibited be amended to read:

6. Prior to certification, plans and specifications for the provision of crossovers and drainage to each lot to a nominated point of discharge must be submitted to and approved by the responsible authority.


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6 Conclusions and Recommendations

Clause 10 of the Planning Scheme directs Planning authorities to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit.

On balancing competing objectives to protect heritage, provide open space and accommodate opportunities for residential development within the identified urban area of Melbourne, the Panel is satisfied the Amendment C133 to the Kingston Planning Scheme is strategically justified. It is also satisfied that, subject to minor modification of the proposed permit conditions, as detailed in Appendix A to this report, that Planning Permit KP12/555 for the subdivision of the land into five lots is an acceptable planning outcome.

Therefore, for the reasons outlined in this report, the Panel recommends that:

1. Amendment C133 to the Kingston Planning Scheme should be adopted subject to the following recommendation:

a. List the heritage place under HO18 of the Schedule to Clause 43.01 to as:

“The heritage place includes the clubhouse and its open setting to the principal north east facade.”

2. Permit No KP12/555 for the subdivision of the site into 5 lots be granted subject to the conditions contained in Appendix A to this report.

Amendment C133 to the Kingston Planning Scheme Panel Report ‐ Appendix A 23 December 2013

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Appendix A Permit Conditions

Note:

Conditions in Italics – Highlighted Yellow are changes proposed by Council as put to the Panel and are accepted by the Panel.

Changes underlined and Highlighted in Blue are additions proposed by the Panel. Condition 21 highlighted in blue has amended words to accord with changes provisions of the Planning and Environment Act 1987 in relation to requests for an extension of time to a permit.

PERMIT APPLICATION NO: KP12/555

LAND: 1 THE FAIRWAY, BONBEACH

WHAT THE PERMIT ALLOWS: THE SUBDIVISION OF THE LAND INTO FIVE (5) LOTS AND COMMON PROPERTY.

Endorsed plans 1. Before the endorsement of plans and the certification of the Plan of Subdivision, two

(2) copies of an amended plan drawn to scale and dimensioned must be submitted to the Responsible Authority for approval. When approved the plan will be endorsed, and then form part of this permit. The plan must be drawn to scale and must be in accordance with the plan submitted with the application dated 10 July 2013, but modified to show: a) The provision of a Plan of Subdivision, prepared by a licensed land surveyor,

incorporating the building envelopes shown on drawings dated 10 July 2013 prepared by Peter Hendy Design and Drafting Services (Ref: 120401 TP3), as a restriction on title;

b) All bearings, distances, levels, street names, lot numbers, lot sizes, reserves and easements.

2. The subdivision as shown on the endorsed plans must not be altered without the prior

written consent of the Responsible Authority.

3. Prior to the issue of a Statement of Compliance, the applicant or owner must pay to

the Responsible Authority an amount equivalent to five per cent (5%) of the site value of all land in the subdivision. If the payment is not made within 12 months of the date of this permit, Council will request a revaluation of the site value at each anniversary, and will vary the amount of the payment accordingly.

4. The owner of the land must enter into an agreement with:

a) a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and


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b) a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

5. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from: a) a telecommunications network or service provider that all lots are connected

to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and

b) a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

6. Prior to certification, plans and specifications for the provision of crossovers and

drainage to each lot to a nominated point of discharge must be submitted to and approved by the responsible authority.

7. Stormwater works must be provided on the site so as to prevent overflows onto

adjacent properties, to the satisfaction of the Responsible Authority. 8. All subdivision works must be carried out in accordance with the Victorian Best

Practice Guidelines for Assessing and Managing Coastal Acid Sulphate Soils (BPMG), and the Acid Sulphate Soil Management Plan (Tonkin & Taylor, March 2013), to the satisfaction of the Responsible Authority.

9. Before the plan of subdivision is certified under the Subdivision Act 1988, the owner

must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987, and make application to the Registrar of Titles to have the agreement registered on the title to the land under section 181 of the Act, which provides for the following: a) That any excavation or development on the lots to be created must be carried

out in accordance with the Acid Sulphate Soil Management Plan (Tonkin & Taylor, March 2013) to the satisfaction of the Responsible Authority.

The owner must pay the reasonable costs of the preparation, execution and registration of the section 173 agreement.

10. Prior to the commencement of any subdivision works on the land, a Construction

Management Plan (CMP), to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority and when approved shall


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thereafter be complied with. The CMP must include details (but is not limited to) regarding the management of parking of vehicles during works, delivery of materials to the site, containment of waste on site and suppression of dust, and business operations on the site during construction.

11. Any relocation of pits/power poles or other services must be relocated to the

satisfaction of the relevant servicing authority and the Responsible Authority, entirely at the cost of the owner/developer.

12. The owner of the land must enter into agreements with the relevant authorities for the

provision of water supply, drainage, sewerage facilities, electricity and gas services to each lot shown on the endorsed plan in accordance with that authority’s requirements and relevant legislation at the time.

13. All existing and proposed easements and sites for existing or required utility services

and roads on the land must be set aside in the plan of subdivision submitted for Certification in favour of the relevant authority for which the easement or site is to be created.

14. The plan of subdivision submitted for certification under the Subdivision Act 1988 must

be referred to the relevant authority in accordance with Section 8 of the Act.

15. Condition required by United Energy

The applicant must enter into an agreement with United Energy for asset relocation, common metering and for an underground supply of electricity to each lot shown on the endorsed plans.

16. Conditions required by South East Water a) Potable Water

The owner of the subject land must enter into an agreement with South East Water for the provision of potable water supply and fulfil all requirements to its satisfaction.

b) Sewer

The owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to its satisfaction. The Plan of Subdivision must be accompanied by an Owners Corporation Schedule. All lots shown on the Plan of Subdivision must be included in the Owners Corporation Schedule.

or

The owner of the subject land can enter into an agreement with South East Water for the provision of separate services to each individual lot.


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17. Conditions required by Melbourne Water:

a) Prior to the issue of a Certificate of Occupancy Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water’s drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.

b) No polluted and/or sediment laden runoff is to be discharged directly or

indirectly into Melbourne Water’s drains or watercourses. c) Engineering plans of the subdivision (in electronic format) are to be forwarded to

Melbourne Water for comment/approval. A Certified Plan may be required following our comments on the engineering drawings.

d) At least 21 days prior to commencement of works, a Site Management Plan

detailing pollution and sediment control measures, must be submitted to Melbourne Water.

e) All new lots are to be filled to a minimum of 600mm above the 1 in 100 year

flood level associated with an existing or proposed Melbourne Water asset. f) A certified survey plan, showing levels reduced to the Australian Height Datum,

must be submitted to Melbourne Water to demonstrate that Melbourne Water’s conditions have been satisfied.

g) Stormwater runoff from the subdivision must achieve State Environment

Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in ‘Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999’.

h) Prior to the issuing of a Statement of Compliance for the subdivision

documentation supporting the approved ongoing maintenance of the treatment measures by the relevant authority (Kingston City Council) must be submitted.

18. Conditions required by Multinet Gas

a) The plan of subdivision submitted for certification must be referred to Multinet Gas in accordance with Section of the Subdivision Act 1988.

19. Reticulated water, sewerage and electricity must be available to each lot shown on

the endorsed plans before any lot can be used or occupied. 20. Once the subdivision has started it must be continued and completed to the

satisfaction of the Responsible Authority.


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21. This permit will expire if one of the following circumstances applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing within the following timeframes:

i. Before or within 6 months after the permit expiry date, where the development allowed by the permit has not yet started; and

ii. Within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

Planning and Environment Act Panel Report · Planning and Environment Act 1987 ... Amendment C133...

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