Victorian Civil and Administrative Tribunal|2010-11-09

The application seeks to demolish the existing buildings on the site and construct a 31 storey (96.2 metres AHD high) building accommodating 158 dwellings and two retail premises.

The building will contain 157 car spaces which will be accessed via the laneway system to the rear of the site and from Albert Road. A lift system will enable residents to access their car spaces within the building.

The building is contemporary in form with an exoskeleton wrapping around the building.

Business 5 Zone and Design and Development Overlay Schedule 3-7.

Clauses 10.02, 11, 15.01, 15.02, 16.01, 17.01, 18.01, 18.02, 21.02, 21.03 21.04, 21.05, 22.06, 22.09, 34.05, 43.02, 52.06, 52.07, 52.34, 52.35, 52.36 and 65.

The site is comprised of two irregular shaped allotments, located on the west side of Albert Road. The total area of the subject site is 994sqm, with a frontage to Albert Road of approximately 20m, a depth of 51m and a width to the rear laneway of 16m.

Immediately adjacent to the north of the subject site is a four storey office building; to the west is a six level car park; and to the south is a 6 storey office building.

Access to the site is via a single width crossover to Albert Road and a single width crossover to the rear laneway.

We inspected the site during the hearing on 26 October 2010

NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410.

Merri Merri Developments Pty Ltd v Darebin CC (Red Dot) [2010] VCAT 1045

This is an application to review the failure of the responsible authority to make a decision within the prescribed time in respect of a permit application for a 31 storey building to contain 158 dwellings and two retail premises at 34-38 Albert Road, South Melbourne.
On 20 September 2010 Council ultimately decided that it would have refused permission for a number of reasons, including compliance with the Design and Development Overlay [DDO3-7] with respect to height and setbacks, the proposed car parking arrangements, concerns regarding the use of the rear lane for access for both residents and waste collection vehicles, and the amount of private open space provided for residents.
Mr and Mrs Wells raised concerns during the hearing that principally relate to car parking provision for the development and the internal amenity for future occupants of the building. They were also concerned that the requirements of the DDO3 were not met. Mr Finanzio raised concerns primarily regarding the equity of development opportunities across adjoining sites, but did not pursue his case further following the evidence of Mr McGurn and the submission of an alternative plan by the applicant.
The key issues or questions for determination in this matter are:
- Is the proposal supported by the planning policy framework for the City of Port Phillip?
- Is the height acceptable?
- Is the internal amenity for future residents acceptable?
- Will the proposal enable equity between developments?
- Does the proposal provide adequate parking?
- Are the proposed access arrangements acceptable?
The Tribunal must decide whether a permit should be granted and, if so what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable polices and provisions of the Port Phillip Planning Scheme we have decided to issue an interim decision based on our concerns regarding the access arrangements. Our reasons follow.

Is the proposal supported by the planning policy framework for the City of Port Phillip?

It was common ground that the development is generally consistent with the State and Local Planning Policy Framework which encourages the development of higher density housing on sites which are well located in relation to activity centres, employment corridors and public transport (Clause 16.01). The subject site forms part of an area identified within the Schedule to the Design and Development Overlay as suitable for higher density development.
The site is in close proximity to an extensive range of services and community facilities, including the Melbourne Central Activity District and the South Melbourne Major Activity Centre. It is well serviced by public transport, as the site is within walking distance of the domain interchange. It also enjoys exceptional access to public open space reserves including Albert Park Lake and surrounds, the Royal Botanic Gardens, Kings Domain, and the Shrine of Remembrance.
The site may be described as being within an area in transition, with a planning permit being issued for a similar development at 44-50 Albert Road (92m), and other developments being contemplated in the area[3]. This was evident when we conducted our site inspection, with the older office buildings being gradually replaced with taller mixed use structures.
We consider that it is these characteristics which define the site as an area which is suitable for major redevelopment such as that contemplated by the proposal.

The subject site is located within DDO3-7, which has a preferred maximum height of 60 metres. The proposed development is 96.2 metres AHD high, considerably higher than the height specified by the overlay.
It was common ground that the height limit specified in the overlay is not mandatory. Schedule 3 to the overlay states

The responsible authority will only consider a permit to exceed the preferred maximum height where it can be clearly demonstrated that the proposed development will continue to meet all the relevant design objectives and achieve all the outcomes specified in the table to this schedule.

Mr Holdsworth gave evidence that the objective was achieved as the proposal will provide a stepping down in built form between the high rise buildings on St Kilda Road, including the Domain Tower and Kings Way. There are a number of existing buildings within the DDO3 area that have a height greater than 60 metres. These include the Hallmark Building (64m), The Domain (78m), 60 Albert Road (82m), 390 St Kilda Road (85m) and the Royal Domain at 368 St Kilda Road (154m)[4]. Mr Holdsworth considered that these buildings provide the built form context for the site. He considered that the proposed building would fit comfortably within this context.
A key concern of the Council was that the building, together with the existing Hallmark Building, and the approved building at 44-40 Albert Road, would not achieve the desired stepping down in built form from St Kilda Road to Kings Way. The DDO3-7 states that an 'outcome' is to achieve the following:

Building height steps down to form a transition between the medium to high rise buildings between St Kilda Road and Kings Way, the medium to low rise buildings in Albert Road, and the low rise residential scale of the surrounding neighbourhood.

Height alone is not the determining factor as to whether a design is appropriate for a particularly context. Not all buildings under 60 metres in height would be automatically acceptable in this area. Likewise, just because there are buildings greater than 60 metres in area, is it to be automatically assumed taller buildings are acceptable? In assessing whether 96.2 metres AHD high in this location is acceptable, there are several key issues for consideration. Firstly the planning policy for the area. Since Melbourne 2030 and Melbourne @ 5 million, policy has advanced to place further emphasis on urban consolidation, housing diversity and affordability issues. In this case, they are prime issues and are not issues of background hum[5]. As we have stated earlier, the policy framework for this site identifies it as a location of substantial residential growth[6]. Secondly, the application of the DDO3-7 is not a mandatory 60 metres but greater height can be considered where the design objectives are met. The design objectives in the schedule provide for higher density and larger scale development than in established residential areas of the municipality. They seek to create a stepping down of built form, to minimise amenity impacts on areas of open space and to maintain and consolidate the landscaping as an important and distinctive feature of the area.
The Council put to us that by approving a development with exceeds the 60 metre height further erodes or weakens the status of the height control. The DDO schedule contemplates varying heights within the area. Indeed, it could be said that it contemplates a range of heights given that no height is mandatory, but discretionary subject to compliance with design objectives. We find that the approach to assessing the height is to assess it against the design objectives of the DDO. Having regard to the design objectives we find that:
- If the site is viewed in context of surrounding heights, a transition of height will be achieved from the taller heights permitted on St Kilda Road to the residential finer grain development further south in the municipality.
- There are no unreasonable amenity impacts on any areas of open space or adjoining buildings.
What is also important is the overall design response of the building within its context. Mr Hutson found that the overall architectural design of the proposed development to be excellent and will work well within the urban context of Albert Road. It would provide a clear architectural image that would be a welcome addition to the area.
We agree with the assessments of both Mr Holdsworth and Mr Hutson. The overall design of the building is excellent, and will sit comfortably within the context of the surrounding area. As such, it is considered that the height of the building is acceptable.

Council also raised concerns that the setbacks did not comply with the provisions of the DDO, and would therefore not provide a landscaped setback which is a common element in the neighbourhood. Our site inspection confirmed that there are a number of properties which have landscaped areas either through the use of planter boxes or through front setbacks. We also noted a building that failed to provide any landscaping (the nightclub property) which we found harsh and of limited benefit to the streetscape.
We consider additional landscaping is required for this development in the front setback. We note that landscaping in this environment does not need to be in the form of traditional planter boxes but could be sculptural elements or interpretative of a green planter box. Given the quality of the design of the building, we are comfortable to allow for some design interpretation of our desire for some public green form to be provided within the front setback of the building.

Is the internal amenity for future residents acceptable?

The Council and the objector's raised concerns about the lack of windows in bedrooms for a majority of apartments. Bedrooms within apartments 2, 4, 5 and 7 on levels 7-22 would not have direct access to daylight and rely on "borrowed light". We share these concerns.
Objective 5.4 of the Guidelines for Higher Density Residential Development seeks to ensure that a good standard of natural lighting and ventilation is provided to internal building spaces. The borrowing of light from other rooms is discouraged. Where this is not possible, light should be borrowed from a main living area, rather than corridors or other bedrooms.
The second bedroom in apartments 2 and 4 would "borrow" its light from the adjoining bedroom. This is an unacceptable compromise of the internal amenity for the future residents.
During the hearing, the applicant provided an amended plan, which showed a redesign of apartments 4 and 5 so that both bedrooms received natural light from a terrace. These plans go some way to addressing our concerns. We will require that these amended plans[7] form part of the development plans.
The bedroom in apartments 2 and 7 would still "borrow" its light from a living room. Whilst not ideal, these central apartments are more akin to a studio apartment, then a traditional one-bedroom apartment. We therefore consider that this response is acceptable and generally consistent with the guidelines.

The Council submitted that the provision of a 5 square metre balcony for a number of the apartments was unacceptable and represented a poor design outcome. It was submitted that the location of the site in close proximity to public open spaces did not justify the substandard private open space provision.
We disagree. The subject site enjoys easy access to a significant number of Melbourne's parks and gardens. Residents of the apartments are highly likely to use these public spaces for the majority of their open space needs. Residents will also have access to the roof top dining/entertainment area and communal garden.
These factors create a situation where there is not a significant need for substantial private open space areas. As such, we find that the reduced balcony area is acceptable.

Would the proposal enable equity between developments?

Mr Finanzio raised concerns that the proposed development has been designed without reference to the future development of other sites in the area, particularly the adjoining property to the north (28-32 Albert Road).
In particular he was concerned that the proposed development may compromise the future development of the land to the north, as the development of this site would need to be setback from the proposed development. He also noted that the internal amenity of the proposed apartments are designed to take advantage of existing views to the north, and that these could be compromised by the future development of 28-32 Albert Road.
The issue of equity between developments is a valid planning consideration. Objective 2.6 of the Guidelines for Higher Density Residential Development seeks to ensure that areas can develop with equitable access to outlook and sunlight. Design Suggestion 2.6.1 states that Responsible Authorities should consider the possible future development of adjoining sites and allow, as best possible, or (sic) an equitable spread of development potential throughout the area. Mr Finanzio asked the Tribunal to make some comment on this issue.
During the hearing, revised plans were submitted by the permit applicant to address the issues raised by Mr Finanzio. These plans show that east and west views will be achieved for each apartment, so that if the site at 28-32 Albert Road is developed in a similar manner, the north facing apartments at the subject site will still be able to enjoy views, as well as receive adequate daylight. It is noted that following receipt of these plans Mr Finanzio did not pursue the matter further.

Mr and Mrs Wells raised concern that the provision of 157 car spaces is inadequate for the development and that the provision of car parking should be at a level consistent with the surrounding residential developments (which in their view) is a provision of 1.5 spaces per apartment. They also submit that there is inadequate on street parking within the area to accommodate an overflow parking from the development.
The statutory car parking requirement for the proposed development is 335 spaces[8]. As such the proposal is seeking a waiver of 178 spaces. To justify this reduction Mr Kiriakidis submitted an assessment of the likely car parking demand of the development. He estimated that the development would generate an empirical peak parking demand of 165 spaces, comprising 134 residential spaces, 24 visitor spaces, five café[9] customer spaces and two spaces for retail/café staff use. We consider that the rates provided by Mr Kirakidis are an appropriate assessment of the car parking demand of the development. The 157 spaces provided on site would therefore meet the likely long term parking needs of residents.
The waiving of this number of car spaces is to be considered in the context of clause 18 of the planning scheme. In waiving the provision of 100 plus car parks, we asked the question, do you provide more parking and encourage people to not use the spaces and use alternate methods of transport, or do you waive the requirement provide less spaces acknowledging that people will use alternate methods of transport? Planning policies in this location steer us to waiving the provision of car parking. The site enjoys public transport access second to none. There is no better location to enjoy the tram, bus, cycling and walking. Clause 18 and 52.06 take into account the location of the site in terms of its accessibility to public transport.
The demand for visitor parking would not be met. Based on the figures provided by Mr Kiriakidis the proposal would generate 29 visitor cars, to be accommodated within the existing street network. We accept Council's view that the visitor parking can be adequately handled within the existing on-street network and within nearby long-term paid parking areas.
Therefore, in light of the empirical data, planning policy framework and accessibility to public transport, we find it appropriate to waive the car parking requirement as proposed.

Access to the site is proposed to be from Albert Road and the existing laneway system to the rear. The Albert Road access point is generally considered acceptable.
The rear laneway system access is the Tribunal's key concern with this proposal. As such we will discuss the laneway system in detail. The existing laneway network is made up of two disconnected lanes which are accessed from Palmerston Street. The lanes are three metres wide and both operate as two way lanes. The lanes provide rear access to several properties which face Albert Road. The existing system is shown in Figure 1:

A concrete apron on the north east corner works as a splay over the edge of 13 Palmerston Crescent. This splay acts as the access point to the car park at number 13 and assists the vehicles turning left from the northern laneway to connect with the laneway at the rear of 28-42 Albert Road. Importantly the concrete apron is in private ownership, clearly forming part of the property at no.13. The Council confirmed the ownership of this apron through the submission of a title for this property.
The applicant for review submitted an aerial photograph indicating that the concrete apron has been in existence prior to December 1989. Mr Gobbo further submitted that it continues to be used and sees no reason why that should change in the future.
Planning Permit 0755/2008 allows the development of a multi-level apartment building at 42-50 Albert Road South Melbourne. This permit requires an upgrade of the laneway system, which includes:
- The rear of 23 Palmerston Crescent being transferred to Council to enable the joining of the two laneways. This would involve a planning permit being issued for a two lot subdivision of the land and a declaration that the rear portion as "road"[10];
- The discontinuance of the section of laneway at the rear of 44 Palmerston Crescent (effectively a land swap for the 23 Palmerston Crescent land)
- The upgrading of the laneway from bluestone to asphalt; and
- The changing of the laneways system from two-way to a one-way system.
The permit applicant described the existing laneway system as "interim" arrangement with the upgrade as the "ultimate" system. All parties agreed that if the planning permit for 42-50 Albert Road were not acted on, the interim arrangement would be the permanent arrangement for the site.
Under the interim arrangements rear access to the site is provided exclusively via the northern laneway on to Palmerston Crescent. The laneway is to provide two way access.
Mr Kiriakidis gave evidence that traffic volumes in the northern laneway are expected to be approximately 32 vehicles in the AM peak hour and 38 vehicles in the PM peak hour. Ms Donald gave evidence that given this level of traffic volumes that there is likely to be conflict between vehicles entering and exiting the laneway.
Australian and New Zealand Standard 2890.1-2004 states that where there are 30 or more vehicle movements per hour provision should be made for a vehicle to pass to avoid conflict with a vehicle coming in the opposite direction. There was debate as to whether this standard was actually applicable to this project, the majority of which was largely unhelpful. In the end both parties agreed that in the absence of any other relevant standard that it serves as a useful guide.
In his evidence Mr Kiriakidis, clearly accepted the need for a passing bay and showed in turning diagrams that the concrete apron could be used for this purpose. The diagrams provided by Mr Kiriakidis also indicate that a waste collection vehicle[11] would also need to use the concrete apron to negotiate the laneway system.
The Council submitted that it was inappropriate to rely on the apron for this purpose as it within private ownership and could therefore be redeveloped for another purpose. The applicant submitted that whilst the apron was not in public ownership it has been used as part of the laneway in a defacto manner for over 20 years and there is no reason to consider that this situation would change. Mr Kiriakidis gave evidence that even if this site (13 Palmerston Crescent) was developed, it is highly likely that Council would require the concrete apron to be provided as a splay.
We share Council's concerns with respect of the reliance on the concrete splay to achieve rear access to the site for waste collection vehicles and for a passing bay. We also acknowledged Council's concerns regarding the sole use of Albert Road for vehicles, noting that it would not be an ideal scenario. In any case, changing the entire access to Albert Road was not addressed in any detail.
There is a lack of certainty regarding the use of this splay. Whilst it may only be used on an interim basis until the development of 42-50 Albert Road there is no guarantee that this development will proceed. Council advised during the course of the hearing that an application for the two lot subdivision of 23 Palmerston has not yet been received and the land swap arrangement would be considered by Council at its meeting in December. Even if the land swap arrangement is supported by Council there is still no guarantee of the development proceeding. We must therefore consider the "interim" arrangement as if it was the permanent arrangement.
We are persuaded by Council that the reliance on the concrete apron for both a passing bay and a turning area for waste collection vehicles is inappropriate given the ownership arrangements.
There are many favourable aspects of this development, and we have noted that it is consistent with the State and Local Planning Policy Framework. It is for these reasons that we do not want to refuse the development because of the issue of the use of the splay and access without an opportunity for the permit applicant to further address us on the issue. We have therefore decided to give an opportunity to the applicant to respond to our concerns with respect to the use of the concrete apron. The applicant should demonstrate that they will have on going access to the concrete apron or that the ultimate arrangement is in place or has been approved by Council.
If this doesn't occur alternative arrangements would need to be made. Options would include directing traffic (including waste collection vehicles) to Albert Road or limiting the use of the laneway for private vehicles, thereby eliminating the need for a passing bay. There may be other methods to resolve our concerns. Given Council's concerns with respect to the use of Albert Road for access we will give an opportunity for all parties to respond to the solution put forward by the applicant.
Council suggested the following condition to be included within any permit conditions to be issued:

The development hereby permitted must not be commenced until the owner/developer of the land provides evidence of a registered plan of subdivision for No.23 Palmerston Crescent, South Melbourne indicating the transfer and vesting in the City of Port Phillip that section of land that is required to facilitate vehicle movements in a clock wise direction within the rear right of way network to the satisfaction of the Responsible Authority.

As we are satisfied with the other issues of the development, we could direct a permit subject to Council's suggested condition. However there is potentially more than one solution to this issue. We will therefore give the applicant two weeks to respond to our concerns. The solution must be circulated to all parties. The other parties will then have 7 days to respond to the applicant's solution.
If this option is unacceptable to the permit applicant, then the Tribunal will issue an Order to refuse the development.

This brings us to draft permit conditions, most of which are standard or uncontested by the parties. Some further conditions were agreed to by parties, were disputed and/or discussed during the hearing. We record our findings as follows:
- It was agreed to include two conditions requiring design changes to the northern layout of apartments and treatment of the northern façade.
- It is a reasonable expectation to require a traffic management and waste management plan. The condition requiring the 12 month review was discussed by Mr Kiriakidis as an option to review the traffic arrangements. We will include a 12 month review condition as the traffic management arrangements may change if the traffic access issues change due to the changes to the laneway system in response to the development proceeding at 42-50 Albert Road.
- Condition 13 requires the value of urban art to be at least 0.5% of the total building cost. Mr Gobbo submitted that the value was too high and a figure of $50,000 is more appropriate. We agree with Mr Gobbo that Council failed to mount any argument as to why 0.5% is an appropriate figure. Council failed to demonstrate the nexus between the requirement and the amount. We accept Mr Gobbo's suggestion that the amount be limited to $50,000.
- Mr Gobbo requested that the reference to convenience shops (condition 31) be removed to allow some level of flexibility to avoid a further permit process. We will retain the condition with one change. The permit preamble is for convenience shops. Mr Kiriakidis in his assessment referred to the space as a café. From a parking review, a café is an acceptable use. We consider it reasonable to allow some level of flexibility of the use for convenience shop and/or café and will amend the condition and permit preamble to reflect this. Any further uses can be assessed by Council.
- Mr Gobbo expressed concern with conditions 32 - 34 and requested that it be deleted. We also share some concern with the condition. We note that a condition requiring a Travel Plan was considered and rejected in Merri Merri Developments Pty Ltd v Darebin CC[12] and there have been other cases[13]where the validity of such a condition was considered and rejected. We also reject this condition. This is not a location where you have to 'sell' public transport as an alternate means of transport. The location speaks for itself with superior access to the tram and train network, bicycle and walking routes.

The Applicant has been provided with the opportunity to address the Tribunal applicant regarding our concerns with respect to the use of the concrete apron. The applicant should demonstrate that they will have on going access to the concrete apron or that the ultimate arrangement (use of the two way laneway system) is in place or has been approved by Council.

[1] At the commencement of the hearing Mr Finanzio applied to withdraw the objection of 40 Albert Road Pty Ltd. No person opposed the withdrawal of the objector, and the Tribunal ordered the withdrawal of this party in accordance with Mr Finanzio's request.

[2] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[3] Whilst planning permits have not been issued for other nearby sites, the Tribunal was advised during the course of the hearing that future development of 40 Albert Road and 28 Albert Road is being contemplated.

[4] The heights given are those contained within the evidence of Mr Hutson.

[5] NJJJKT Pty Ltd [2008] VCAT 1410 Paragraph 14.

[6] Clause 21.05-2 of the Port Phillip Planning Scheme.

[7] Plans TP3.01/A and TP3.02/A prepared by Rothe Lowman dated October 2010.

[8] For the statutory car parking requirement we have accepted the figures provided by Mr Kiriakidis of GTA consultants

[9] No use has actually been identified for the retail spaces. The responsible authority considered that these spaces may be used for a convenience store, and Mr Kiriakidis has assumed it would be used as a café. We recognise that neither use has been identified on the plan or by the applicant in submissions.

[10] The Tribunal was advised that this could occur either through a planning scheme amendment or through the provisions of the Local Government Act.

[11] The plans indicate that only a small rigid vehicle could enter the laneway system.

[12] Merri Merri Developments Pty Ltd v Darebin CC (Red Dot) [2010] VCAT 1045

[13] Natalie & Anor v Minister for Planning & Anor [2010] VCAT 1592, Icon Developments Australia Pty Ltd v Stonnington CC [2009] VCAT 2574.

Environment Act 1987

34-38 Albert Road Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1800 (9 November 2010)

34-38 Albert Road Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1800

At a glance

Court

Decision date

Source

Judgment (46 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

34-38 Albert Road Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1800 (9 November 2010)