52 Park Street Pty Ltd v Port Phillip CC [2013] VCAT 2199

52 Park Street Pty Ltd v Port Phillip CC [2013] VCAT 2199 - VCAT 2013 case summary — Zoe

[47]

Ms Brennan submitted that it was not fair to punish the owner of the review site, for the 'sins' of the development process at 52 Park Street.
These submissions were supported by the evidence of Mr Sheppard, Mr Govenlock and Mr Richardson. Mr Sheppard conceded that ideally a wider space between two buildings of this height is preferred for amenity reasons. However he defended the proposal as being appropriate in this substantial growth area, given the existing and likely future controls under the Design and Development Overlay. He also defended the proposed setbacks as being a reasonable contribution to the space between buildings given the setback at 52 Park Street, and also given the need to facilitate an appropriate development of the review site. Mr Sheppard expressed the view that the anticipated amenity impacts to the 52 Park Street apartments were reasonable and appropriate. In forming this opinion Mr Sheppard was informed by a comparative analysis of the shadows of the proposed building on the review site, with the likely shadows from other development scenarios on the review site and that further to the east.
Mr Govenlock defended the proposed setback and height as contributing to an acceptable amenity outcome. He noted that ideally the development at 52 Park Street would have a larger setback, to ensure an appropriate amenity outcome. However he opined that as the review site has the same planning context and thus development opportunity as the neighbouring site, that a reciprocal setback was justified. This he says represents an appropriate amenity outcome as the owners of the completed development at 52 Park Street must have reasonably expected a similar development to occur on the review site.
Mr Govenlock went on to assess the actual amenity impacts in terms of shadows, daylight, overlooking and visual bulk. In each case he considered that the amenity outcomes for the apartments at 52 Park Street would be appropriate in the context of a substantial growth area.
Mr Richardson provided specific expert evidence as to the existing and future daylight levels to be enjoyed in the existing apartments at 52 Park Street. It is Mr Richardson's evidence that while the amount of daylight will be reduced, that an appropriate level will still be maintained after the proposed development of the review site.
Ms Bisucci for the Council submitted that the poor design of the apartments at 52 Park Street was a decision by that developer that should not prevent development on the review site. Ms Bisucci defends the amenity impacts, which she submits are reasonable, on the basis that this development must be a reasonable expectation for the review site following the development at 52 Park Street.

[60]

The site adjoining the review site to the west has very recently been developed with a 16 storey apartment building. By very recently I note that the planning permit was granted in November 2010, and the Occupancy Permit issued a few weeks prior to this hearing. The fourth to fifteenth storeys of this building is developed with either five or six apartments to each floor with entirely an eastern aspect, that is towards the side boundary shared with the review site. These apartments are setback 2.95 metres from the western boundary of the review site. On eleven of these twelve floors these apartments have balconies that extend to within 1.47 metres of the western boundary of the review site, on the fourth floor the balconies extend to the boundary above the three level podium. The sixteenth storey contains communal facilities including communal open space.
The design response for the review site proposes a building that is built to its western boundary on its fourth storey, and above that is set back 1.478 metres to its overall height of twelve storeys. The proposal does what it can to turn away from the completed development at 52 Park Street. Balconies are proposed to be located at the northern and southern end of the building, where five metre setbacks are proposed at either end to provide for solar and daylight access, and the street setback required under the Design and Development Overlay. Four bedrooms will have windows facing the western boundary on each level, except the fourth level where a light court is provided to two one bedroom apartments.
The upshot of the design of both sites is that, above the fourth level, the proposed development will be within 2.95 metres of the balconies and 4.42 metres of the living room windows of the east facing apartments. As a result a number of apartments within the development at 52 Park Street will be significantly impacted by the proposed development on the review site. Those impacts include a loss of outlook, loss of daylight and sunlight, a sense of visual bulk or enclosure from the proposed building, and potentially some privacy impacts from having neighbours so close to the existing balcony spaces at 52 Park Street.

[61]

The western wall of the proposed development facing the apartments at 52 Park Street will be significant in size. It has a length (from north to south) of approximately 38 metres, and a height above the adjacent three storey podium of just over 26 metres. When setback 2.95 metres from a balcony, or on the edge of the adjacent fourth storey balconies, a wall of these dimensions at this proximity will appear quite large and imposing. Consideration of the view from a low level apartment may not be reasonable given that such low level apartments in high density redevelopment precincts cannot expect a high level of amenity. However even a mid level apartment, positioned centrally on the 8th storey at 52 Park Street, will still be faced with a view to a wall that extends 15 metres both to the north and the south of the end of the balcony, and nearly 15 metres above the balcony floor level. A high sense of enclosure will still occur to these mid level apartments. They will also have a very limited outlook.
Such mid level apartments will also receive next to no sunlight access at the equinox, according to the shadow diagrams attached to Mr Sheppard's evidence statement. During the course of the hearing, I asked Mr Sheppard to explore with me what an apartment on the ninth storey will receive by way of sunlight access at the equinox. The upshot of that analysis is that just a slither of sunlight will access the balcony floor at around 1.00pm. In comparison a development which is setback 4.5 metres from the western boundary of the review site will provide sunlight access from just after 11.00am, until around 1.00pm, to an apartment on the ninth storey. While this is still a low level of sunlight access, the impact of providing a greater setback for these mid level apartments is, in my view, significant. While I acknowledge that a 4.5 metre setback cannot be achieved on this 7.3 metre wide development site, it could be achieved if the review site were consolidated with that to the east. That is a matter to which I will return.
Mr Richardson gave evidence as to the daylight levels that will be experienced in the east facing apartments at 52 Park Street. That evidence addresses both the existing level of daylight, and that to be experienced after the proposed development. The evidence provided an analysis of the 'daylight factor' to be experienced across the various living areas at levels 3, 5, 8 and 10. These levels were chosen to be modelled as indicative examples of the apartments at different levels of the building at 52 Park Street.
The daylight factor is a percentage of the available outdoor daylight that will be experienced at floor level at a certain point. As such, while the daylight factor is constant in different weather conditions, the amount of daylight or the lux level that eventuates, will depend on the lux level of the daylight in the surrounding outdoor environment at any particular hour of any day. Different organisations have established standards for what are considered by them to be appropriate daylight factors in apartment developments. None of these standards are found in the Port Phillip Planning Scheme, nor adopted by State or this local government, so I am not bound by them. Further I was not advised as to how the standards were arrived at, so I am not persuaded that they should be given significant weight.
The Sustainable Design Assessment in the Planning Process Indoor Environment Quality guidelines states that best practice is defined by 0.5% daylight factor for bedrooms and 1% for living rooms, including kitchens. Mr Richardson expresses the opinion that this document should be used as a guide to minimum standards, but not define best practice as the daylight factors used are too low. The Green Building Council of Australia considers best practice to be a daylight factor of 2% across a living room. Mr Richardson has adopted this as an appropriate standard, to be applied to at least 90% of the floor area of a living room, noting that the corners of a living room away from a window are sometimes difficult to light to an appropriate daylight level.
Mr Richardson presented his findings in a number of ways. Firstly in his evidence he provided a matrix of daylight factors as 'spot levels' across the various living areas assessed. While this is the most accurate form of assessment, the presentation of a variety of numbers in a tight grid across an area is in part overwhelming, and difficult to accurately assess. Secondly, upon my request, he provided average daylight factors across each of the assessed living areas. I agree however with Mr Richardson that the use of such averages can be misleading if a daylight factor is particularly bright right next to a window, but particularly dull in other parts of the living area.
The third way that the data was presented I found particularly helpful. This was done by way of a percentage of each living area which are above what Mr Richardson considers to be best practice, being a daylight factor of 2%. The kitchens when located at the far end of the apartments away from the balconies were not included in this assessment. That is appropriate given that these kitchens do not rely on direct access to daylight at present, and would clearly rely on artificial lighting for any food preparation or cooking activities. The following table sets out the results as provided by Mr Richardson.

[64]

This analysis shows that there will be a noticeable, and one might say significant, difference between the amount of the living rooms achieving Mr Richardson's adopted best practice daylight standard before and after this proposed development. In addition to the amount of floorspace falling under the 2% daylight factor, the matrix of spot levels provided in the evidence demonstrates that the darker areas of living areas will become more dark, and the areas receiving a good amount of daylight will now receive less daylight. Overall the quality and amount of daylight to be experienced will noticeably decrease.
In some ways, that is an outcome that is to be expected. The east facing apartments at 52 Park Street currently enjoy an aspect or outlook across a low building on the review site, as well those sites further east to Wells Street. That will not be the situation in the medium to long term, with some taller buildings reasonably anticipated to be built to the east of 52 Park Street.
At this stage I have insufficient information to analyse whether the extent of loss of daylight is reasonable or not. In particular I am unsure whether the reduction in daylight factor predicted is reasonable in a context such as this, where ultimately some form of high building can be expected at some distance to the east of these existing apartments at 52 Park Street. In this matter, some further evidence from Mr Richardson would have been useful, demonstrating the impact on the daylight factor in these apartments under different development scenarios, with different setbacks. For example, would the impacts on daylight be substantially different if the proposed development had a 4.5 metre side boundary setback, as opposed to the proposed 1.478 metre setback?
What I can safely conclude from the evidence provided is that the proposed development on the review site will have an appreciable impact on the daylight received by the east facing apartments at 52 Park Street. In particular I am concerned by the change that will occur to the apartments on levels 3, 5 and 8, which will experience a marked reduction in the amount of the living area receiving Mr Richardson's adopted best practice daylight factor, as well as a general decrease of the level of daylight access across the affected living areas.
In the end, given the absence of a differential analysis of different development proposals, all I can conclude is that the daylight to be enjoyed by a number of these apartments will be noticeably less as a result of the proposed development.
The final area of concern raised in relation to amenity impacts was the acoustic and visual privacy between the two developments. The application proposes the positioning of four bedroom windows within the western elevation, to be located some 1.478 metres from a series of balconies. Mr McGauran in particular was critical of the potential overlooking from these windows, and the intrusion into acoustic privacy that would result. Firstly I find that there are numerous ways to ensure that overlooking can be addressed, and I am satisfied that a technique such as a full height obscure glazing would be sufficient in this instance.
Secondly, I agree with Mr McGauran that there is likely to be some acoustic impact between the apartments, particularly on a warm night when it might be desirable to open the bedroom windows. Although they are not marked as being openable on the plans, I would regard such an ability as being a minimum requirement for these bedrooms. While such an acoustic impact will benefit from some increase in setback, I am not convinced that an extra 3 or so metres of setback, as was advanced as one option, would necessarily achieve a much improved acoustic outcome for these spaces, particularly when bedroom windows are opened on a warm night. In the end I find that the impacts on acoustic amenity to these spaces to be just part and parcel of living in a high density urban environment.
Having regard to this analysis, I find that the existing apartments at 52 Park Street will have their existing amenity significantly compromised by the proposed development on the review site. I acknowledge that some impact on amenity is a necessary by product of developing sites within an area such as this which is identified for substantial change and higher density housing to 35 metre high forms. However I find in this case that the setback of 1.478 metres proposed from the western boundary of the review site causes amenity impacts that are, when combined, significant and unreasonable.
I have considered whether these off-site amenity impacts can be offset by the sizeable communal facilities available to 52 Park Street. I had the opportunity to inspect these facilities on our accompanied inspection. While the communal facilities were still being completed, they are extensive, including a large lounge area, a kitchen and dining room for dinner parties, a theatre, a gymnasium and a very large deck area to all boundaries. This communal area certainly has the ability to provide a quality recreation area for the occupants of the affected apartments at 52 Park Street.
In the end however I am not persuaded that these communal facilites can offset all of the impacts that would result from the visual bulk, sense of enclosure, and loss of solar and daylight access as a result of the proposed development on the review site.
Further, these amenity impacts need to be assessed in the context of the location of the review site within a Mixed Use Zone. While many areas to be developed to 35 or so metres in height may be found in a Capital City Zone (as was the case in the Highbury Focus decision or in Southbank), in this case the review site and surrounding land is included in a Mixed Use Zone. This zone is one of a suite of residential zones, where successive Tribunals have determined that residential amenity needs to be protected to a higher degree than in commercial zones. As such I conclude that while this area has been identified as one in which higher density development should be encouraged, it is also to occur in a manner which maintains, to a certain standard, residential amenity. This is supported by the emphasis placed on residential amenity in the Local Planning Policy Framework of the Port Phillip Planning Scheme, as evidenced by the policy statements I have repeated following paragraph 28 of this decision. For the reasons already set out, I find that an appropriate level of residential amenity is not maintained here for the residents of the east facing apartments at 52 Park Street.

[65]

Ms Brennan is correct in identifying that these amenity impacts are partly a result of the failure of the development at 52 Park Street to provide for its own amenity within the boundaries of its own site. However I am not persuaded by Ms Brennan's submission that this failure should effectively be ignored, and that the proposal for the review site be assessed on its own merits, regardless of the amenity impacts on the existing adjacent development. I am not persuaded by this submission for the following reasons.
Firstly, while the development at 52 Park Street is a poor choice of design by its design and development team, it is also a poor design that has very recently been facilitated by the planning system. That is, this proposal was scrutinised and considered very thoroughly by the Responsible Authority, as evidenced by the size of their Council report, and supported on its planning merits. More to the point, this is not a development that was considered and approved some years ago when we may not have had the benefit of modern day thinking about these matters. The fact is that this proposal was considered and approved very recently, in late 2010, under a planning framework that largely survives today. It is therefore unreasonable, in my opinion, for another part of the planning system, that is this Tribunal, to now say it was a bad design, and therefore does not deserve protection. It is that kind of approach that will repeat inappropriate planning decisions, and make unfortunate planning outcomes worse than they already are. I do not endorse that as the role of this Tribunal.
Secondly, even if the development at 52 Park Street had been setback appropriately, which most of the experts appearing before me agreed would have required around a 4.5 metre setback, I would still have doubts as to whether the proposed 1.478 metre setback proposed for the review site would have been sufficient on amenity grounds. Such a setback would still create significant amenity impacts on the east facing apartments at 52 Park Street.
Thirdly, while I acknowledge that the development at 52 Park Street does not provide for its own amenity within its boundaries, that is a relatively common approach in such strategic locations identified for higher density housing. During the course of the hearing, I was referred to standards which apply in other areas seeking appropriate setbacks between tower elements, ranging from 9.0 to 20 metres. In those areas, such setbacks are not sought to be provided entirely on the one site, but rather are sought to be provided equally on adjoining sites, thus providing, on completion, an appropriate setback. Such setbacks are often sought for urban design reasons, as well as on privacy and amenity grounds. However they are sought on the expectation that a setback within one development site alone will not secure its full amenity, but rather that developments will benefit from setbacks on their own sites, and likewise on adjoining properties. I note that the proposed development on the review site has taken a similar approach, with very small light courts proposed along its eastern boundary, which it is hoped the adjoining property to the east will match to achieve an appropriate level of daylight penetration.
The fact that this proposal does not provide for its own amenity within its own boundaries therefore is not an unreasonable outcome of itself. Rather the issue is the extent to which it relies on a sympathetic design on the review site.
There are a number of other submissions and matters that I also need to address. Ms Brennan made submissions as to what constitutes equitable development rights, and questioned whether the development at 52 Park Street allowed an equitable development to occur on the review site. I agree with the starting point expressed by Ms Brennan that each site in a development precinct with identical planning controls should have an equitable opportunity to realise its development potential. However I do not agree that this will result in equality across all sites. That is because very few sites have an equal development potential to begin with. In the case of the review site, its narrow width of 7.3 metres, combined with a need to provide for equitable development of adjoining sites, is a very real factor limiting its potential for development. At the very least it limits the potential for the review site to be developed to an equal height, or an equal density, of those adjoining properties which are much larger in land area. I am not persuaded that even if this site was the first developed in this precinct, that it could be developed to 12 storeys in height in a manner that proves equitable for the adjoining properties.
That concern of mine is highlighted by the proposed light courts to the western boundary of the review site. These light courts service bedrooms at the second, third and fourth storeys, and are a secondary source of light to the apartments which each face either the front or the rear of the site. However these light courts are the only source of daylight to these bedrooms. The light courts measure some 1.2 metres deep by 2.4 metres wide. Both Mr Sheppard and Mr Govenlock were of the view that they allowed for an equitable development in that the adjoining site to the east need only match these light court dimensions to achieve an appropriate daylighting outcome to these bedrooms.
I have my doubt as to how much daylight would pass down an eleven storey high lightwell measuring some 2.4 metres square, or 5.76 square metres. Indeed I imagine that a vary low level of daylight would be experienced to the bedroom of the apartment on level 1. I compare this light well with the one provided on the western side of the development at 52 Park Street, which measures some 3.0m by 5.6m, or some 16.8 square metres without any contribution from a future development on the adjoining property. In my view the light courts provided for the lower level bedrooms on the eastern side of the review site are inadequate, and would necessitate the provision of a larger area on the adjoining property to the east as part of a future development of that site. In my view that is not an equitable outcome, either.

[73]

There are two other matters which were raised with me during the course of the hearing. I have ultimately decided to give these matters little weight, however they do give me some comfort that, in refusing to grant a permit for the proposed development, I will potentially be supported by future planning controls and strategies. The first of those matters is the proposed Amendment C107 to the Port Phillip Planning Scheme. This amendment proposes to update the Design and Development Overlay, with that which currently applies to the land having an expiry date of 20 January 2014.
The Amendment is currently awaiting authorisation, and is yet to be exhibited. It is therefore a matter to which I can give little weight. However it is interesting to note that the Amendment seeks to increase the potential building heights within this precinct while also mandating a 4.5 metre side setback. While I acknowledge that the side setbacks may vary, and may not be mandatory when they are introduced, the fact that strategically the Council is identifying the need for more consistent side setbacks to tower elements in some small way confirms in my mind that larger setbacks are warranted in this situation that is before me. Of course that can probably not be achieved on the review site alone. It will require the review site to be consolidated with the site to the east to achieve a larger development site capable of providing appropriate side setbacks.
The second matter that I have given little weight to is the guidance provided regarding the internal amenity of apartment buildings in Plan Melbourne. Initiative 2.1.4 identifies that there are current concerns with the standard of amenity in residential apartments, and a need to improve those standards. Of course, Plan Melbourne is at this stage in draft form during a period of final comment from the public. However it is interesting that the issue of the standard of amenity in apartment development has been identified as an issue facing Melbourne, one about which some actions are proposed.

At a glance

Court

Decision date

Source

Judgment (78 paragraphs)

52 Park Street Pty Ltd v Port Phillip CC [2013] VCAT 2199 (3 December 2013)

Parties

Legislation Cited (1)