Does the building's height appropriately respond to its built form and policy contexts?

1. It is proposed to replace a six storey office building with a mixed use building with a height of 37 storeys (plus rooftop plant). The proposed building would have a height of 121.3 metres to the roof and 128.1 metres to the top of the rooftop plant.

1. The west side of Chapel Street where the review site is located has seen substantial change. Several decades ago, the area featured a prestigious secondary school surrounded by low rise, nondescript warehouse and industrial uses and buildings.
2. The industrial buildings and uses have been replaced by predominantly residential buildings with heights from 14 to 30 storeys. A 51 storey building is about to be constructed on the northwest corner of Toorak Road and Chapel Street. The high school is now an island within a solid wall of medium rise apartment buildings, with a few industrial sites remaining to be developed. The east side of Chapel Street has also been comprehensively redeveloped and now comprises a mix of 10 to 32 storey buildings.
3. A list of the nearby buildings and their heights is attached at Appendix A and we also note a helpful context plan included in Mr Czarny's evidence.
4. We were advised that approval has been granted for the redevelopment of the former Roger David site at no.12-16 Claremont Street for a 27 storey apartment building. It would include a five storey atrium that would be used for public space and a pedestrian link between Daly Street and Claremont Street.
5. Except for the impending Capitol Grand to the south, the proposed building before us would be the tallest building in the precinct by seven storeys (no.661 Chapel Street) and 23 storeys higher than the Olsen Hotel opposite. It would have a similar height as the shoulder of the Capitol Grand development.

1. The responsible authority supports the redevelopment of the site for a multi-storey, mixed use building that is taller than the existing building. It does not oppose a new building being taller than the preferred height limit of 50 metres. However, it says a 128.1 metres tall building is excessive as it fails to respond to its built form and planning policy contexts.
2. It says there are no compelling reasons such as unique site features, design excellence or public benefits that would justify the proposed height that is two and one half times the preferred height for the area. Approval would undermine the long term vision for the area and cause a loss of confidence in the planning framework and disrupt orderly change.
3. Mr Peak opposes the proposal at 37 storeys, but says that a 32 storey building would be acceptable.
4. The applicant says the proposal is an appropriate response to the built form and planning policy contexts. The site is very well located and is a rare island site where greater height can be tolerated. It would transition between the taller Capitol Grand to the south and the Olsen Hotel to the north and it would comfortably sit in a landscape of similar sized buildings. It says the building would be tall and slender. It would have a street wall, all of which comply with planning policy. It would not undermine the primacy of the Capitol Grand.
5. It says the proposal provides community benefits (the public space at the ground level and two levels of offices) and achieves State and Local policy objectives of intensification within an activity centre that is rich with services and public transport.

1. Mr Czarny says the locational attributes of the Forrest Hill precinct and the planning policy framework encourage transformational change within the area. Buildings in the precinct exceed by considerable margins the preferred heights in the planning scheme. He says the scheme should be considered to be a baseline or starting point for design.
2. It was his evidence that the site falls within a "threshold typology" because of its particular site features. It is an island site and a principal gateway to the south. This minimises any impacts on other sites by ensuring spacing between buildings, and allows the proposed building to be viewed "in the round". Consequently it can have a building taller than 50 metres.
3. He says the proposed building is acceptable because it would have a height consistent with the nearby Vogue and the Grand Capitol. He says it would be recessive in the precinct skyline as it would have a simple form and complementary proportions.
4. He also considers the building would comprise well considered proportions and parts that break up its mass and height. He thought it to be a polite and elegant building.
5. He also says that the proximity to the corner gateway (The Capitol development) gives the subject site a unique role as a mediator between the taller gateway and the remaining Forrest Hill precinct.
6. Mr Czarny says the height is further justified by the emerging "urban morphology" (or overall massing and form) of the Forrest Hill precinct. He says there are buildings on larger sites that establish a general height through the precinct. This general height is higher than the preferred height in the scheme, but is less than the corner gateway site. He says this general height is around 110 metres and has been established by Vogue on the east side of Chapel Street.
7. Mr Govenlock agrees the site's inclusion within a high order activity centre and its proximity to services supports an intensive development to further broad housing and planning objectives. Other reasons to support the building's height are it would sit at the shoulder of Capitol Grand, the site is an island and it would be a tall, slender building. He says it would be a gradual transition between the Capitol Grand and the Olson.
8. He conceded in cross examination that policy encourages an abrupt differentiation between this site and its southern neighbour. He also conceded that it would not be a slender building when viewed from Daly Street or Chapel Street. He also accepted that policy doesn't identify the site as having any particular prominence or that providing office space or a plaza does not provide an exceptional public benefit that might warrant a building height that substantially exceeds the preferred height in the precinct.

1. The review site is in the Commercial 1 zone. The purposes of the zone are to implement planning policy and to:

Create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses

Provide for residential uses at densities complementary to the role and the scale of the commercial centre.

1. The land is affected by Design and Development Overlay Schedule 8. The general design objectives for Forrest Hill include developing a higher density precinct, to have gateways at the north end of Chapel Street and at the Capitol Bakeries site. Development should preserve significant view lines and avoid unreasonable bulk when viewed from surrounding areas.
2. New buildings should comprise architectural excellence. This is further defined to include tall, slender, stepped built form above a ground level podium with a continuous street wall.
3. The review site is within the Chapel Street South precinct. The scale and design of new buildings in this precinct are to complement the prevailing scale of development on the east side of Chapel Street and reinforce the boulevard character. The precinct design objectives encourage appropriate scale relative to the surrounding built form, and to provide tall, slender building forms.
4. DDO8 requires a new building in this precinct to comprise a street parapet between 7.5 and 12 metres, with the levels above set back 6 metres from the side and rear boundaries. The preferred height in this precinct is 50 metres.
5. We are guided by the planning policy framework. Plan Melbourne identifies Chapel Street/Toorak Road as a principal activity centre, at the top of the hierarchy of centres except for Melbourne CBD. Clause 11.01, clause 11.04 and clause 16.01 encourage dwellings to be located in established suburbs, particularly on sites that are well located to higher order activity centres, public transport and services. Clause 11.04-4 encourages the development of 20 minute neighbourhoods in which people can live, work and play. Clause 15.01 encourages development to respond to the features and context of the site.
6. The local planning policy framework provides further guidance. Clause 21.06 requires development to respond to the variety of the City's built form. Clause 21.05 encourages higher density development to be directed to the higher order activity centres.
7. Clause 22.17 envisages the Forrest Hill precinct will become a vibrant higher density precinct by accommodating much of Stonnington's contribution to Melbourne's compact city and housing objectives. Development is to comprise design excellence and higher density, intensive built form.
8. Development is not to be uniform through Forrest Hill. Each precinct is to have its own distinctive built form character. Claremont Street, Daly Street and Almeida Crescent are to comprise mid-rise buildings. Chapel Street is to have a built form that reflects its east side.
9. The Capitol Bakeries site is a gateway that is to contain a landmark building. Other sites are to be developed with podiums built to the street edge, with tower elements set back to maintain sunlight access and sky views.
10. The decision guidelines in DDO8 requires the responsible authority and the Tribunal on review to consider the Forrest Hill Structure Plan 2005. It is a reference document to DDO8 and to clause 22.17.
11. Its vision for Forrest Hill embraces redevelopment to create a higher density precinct. The new character is to comprise of low scale street walls and upper levels for higher density developments. In general, taller built form is to be directed to Yarra Street. The narrower width of Claremont Street and the short length of Daly Street would limit development to midrise buildings. Development along Chapel Street is to complement the scale on the east side of that street, comprising podium/towers up to 13 storeys (except for gateway sites (Fun Factory and no.681-709 Chapel Street).
12. The structure plan also encourages the development of streetscapes that are legible, pleasant and with a human scale. Development should avoid creating wind swept canyons without sky views and sunlight.
13. Amendment C172 is a seriously entertained planning proposal to which we give weight. The responsible authority says it is a policy neutral translation of the existing policy framework.
14. It proposes to include the Prahran/South Yarra and Windsor activity centre in the Activity Centre Zone (ACZ). Schedule 1 to the ACZ sets out preferred building heights. Clause 4.3-3 notes that the preferred height may not be achievable on every site, but it may be exceeded if:

It can be demonstrated that a significant community benefit can be achieved and

It continues to meet the objectives in relation to visual impact and overshadowing and increased upper level setbacks.

1. DDO8 encourages upper levels to be highly articulated, visually distinctive and tall slender forms rather than bulky, monolithic buildings.
2. The review site would be in sub precinct FH-3. The precinct would have a preferred height of 50 metres, with street walls of 7.5 metres to 12 metres height, and spaces of 12 metres between the upper levels of towers. The east side of Chapel Street is to be included in the Forrest Hill precinct, but it does not have a preferred building height.
3. The Panel that reviewed Amendment C172 found the proposed building heights are based on heritage and character drivers and are strategically justified. It found the preferred heights in Chapel reVision Discussion Paper 2014 are appropriate, noting that the appropriate height of a building on a particular site is a matter for a permit assessment, in the context of the policy framework and preferred heights.

What guidance is provided by previous Tribunal decisions?

1. The Tribunal has determined many applications for developments that exceed the preferred height limits in the various Forrest Hill precincts. Daly Street Developments v Stonnington CC[2] listed multiple examples of proposals for heights greater than the preferred heights in DDO8.
2. We think the Tribunal has for some time adopted a consistent and respectful approach to the planning framework. It has found the planning framework is intended to guide the emerging built form, and is based on the broad range of competing interests that have had input to the framework.
3. The Tribunal has also acknowledged that it is a framework that has been in place for some time. Rather than it being seen to be stale and out of date, the Tribunal has given weight to its consistency and longevity. It has seen this to be important to create certainty.
4. The Tribunal has consistently found that having preferred heights that can be exceeded does not create a free for all or a policy vacuum. The guidance in the scheme is not to be disregarded. The preferred heights and other design guidance should be applied to maintain orderly, fair and consistent decision making.
5. Furthermore it has found that the policy framework remains in place, and the outcomes now emerging are largely consistent with the framework.
6. The Tribunal has also noted that DDO8 presently in place contains no reference to exceptional circumstances or public benefit that might justify great variance from or exceedance of the preferred heights.
7. In most cases the Tribunal has approved proposals that exceed the preferred heights by 5 or 6 storeys (15 metres) but it has resisted substantially greater variations.
8. The exception to the above propositions are the various decisions regarding the Capitol Bakeries/Fun Factory site to the south of the review site. Over at least four reviews, the height of the building on that site has increased from 27 storeys to 51 storeys. The reasons given to support the increased height have included the large site, the absence of a preferred height limit on this site, its continued reference as a landmark site in the policy framework, and the design excellence of the most recent approved building.
9. In general it is our view that the Tribunal has been careful, cautious and respectful of the prevailing policy framework. It has supported minor variations where there have been particular circumstances. In so doing the Tribunal has be careful to retain the integrity and continuity of the policy framework.

1. We agree with the parties and experts that the site should be redeveloped for a multi storey, mixed use building. The policy framework is clear, the site is within high order activity centre and very conveniently located to a wealth of transport services, recreation and shopping services, employment opportunities and health and education facilities. Its redevelopment would make a positive contribution to broad housing and compact city planning objectives.
2. The building's height is a determinative matter in this review. We are satisfied that the proposal before us, even if reduced by a further five storeys, would be too tall for its built form and policy contexts. While we accept the existing controls and policy contemplate buildings taller than the preferred heights in policy, we are not persuaded that they support buildings that are more than twice the preferred heights. We have come to this conclusion for the following reasons.
3. Firstly, we do not agree with Mr Czarny that the preferred heights are "just the beginning of the design process.' The preferred heights in the scheme have to mean something in the design processes. They have been in place in Forrest Hill in much the same form since 2003. They have been reviewed several times, most recently in Amendment C172 where the Panel found they have strategic justification. They should have considerable weight and be a constant thread through the design process, rather than being a starting point.
4. We agree with the parties that the policy framework encourages design responsiveness and flexibility. We agree that it is likely to be appropriate to approve a building taller than 50 metres. However, we are satisfied that variances need to be rigorously justified in terms of unique site features, design excellence, public benefit, or built form context. We are not persuaded that these factors are present in this review.
5. With regard to design excellence, the Tribunal accepts that the architecture is well resolved. We accept that the design of the facade, that incorporates a series of recesses that we were told are inspired by the story of "Jack and the Beanstalk"', in combination with strongly expressed horizontal floor extensions that soften the shape of the building, result in a well-mannered facade that would add interest to the area. At the ground level, regardless of the functionality of the enclosed public space (which we discuss further), we are persuaded that the arrangement of glazing and entries together with the strongly expressed canopy would provide an interesting pedestrian environment and the desired "human scale" to the surrounding streets.
6. We were not persuaded that this design composition goes beyond the normal requirement in policy to achieve high quality design. In particular, we were not provided with any evidence that suggested the design motif was particularly relevant to the area or drawn from the local context or history. Additionally, we note that should the project proceed with the reduction of a further five storeys as tabled at the hearing, the reduction in height requires significant changes to the facade treatment to manage the proportions. We agree, on the evidence of the revised photo montages, with Mr Czarny that this resulted in a less pleasing composition.
7. We discuss the proposed public space in more detail below. We agree with Mr Czarny and Mr Govenlock that its purpose and design as part of the east-west link is not sufficiently resolved for us to conclude that it provides a significant public benefit that justifies a 37 storey or even a 32 storey building in an area with a preferred height of 50 metres.
8. With regard to the proximity to the nominated gateway site (the Capitol Grand) we accept the Council's submission that planning policy clearly defines the gateway site as being distinct from the rest of the precinct. We cannot identify any support in policy for the concept of a "step up" or transition from this site towards the gateway. We find the proposition that the review site has a special role is contrived, akin to saying the site is the "gateway to the gateway".
9. Furthermore, we think the height of the proposal before us diminishes the clear and long term policy intent at clause 22.17, DDO8 and most recently in ACZ1, for the Capitol Grand site to be developed as an iconic gateway that stands alone and proud. We think that planning policy requires the Capitol Grand site to have its own unique height and form, and the built form to its north and west is to be clearly different from and subservient to the Capitol Grand building.
10. We think the photomontage views from the north show that a building of 37 storeys (or the montages that were tabled of the 32 storey building) would significantly reduce the prominence of the tower of the Capitol development. It would be a small projection of just another building in a landscape of tall buildings.
11. With respect to proposition that this site is special because it is an island with special opportunities, we do not find that this is sufficient to justify the additional height proposed. We accept that this may support the proposition that a podium and tower is not needed on this site because upper level separation amongst towers is provided by the surrounding streets. We accept that an island site may enable suitable pedestrian scale at the street level to be achieved through ground level architectural detail.
12. However, the adjoining streets are not so wide or the site so large that it creates its own character or opportunities, and its context has limited relevance. We think the site sits clearly within the Daly Street, Almeida Street and Chapel Street contexts, and its development would be viewed to be part of that area rather than being a distinct and separate sub-precinct.
13. With regard to there being an "urban morphology" that supports a higher development on the subject site, we find that this argument relies excessively on comparison to the Vogue building on the Como site. We are persuaded by the Council's submission that the Vogue development is different. It is a podium and tower, where the tower is well set back from the street, and it is well separated from the other tall elements in the Como development, Furthermore it is in a different policy context, and not in the Forrest Hill precinct (except for Amendment C172).
14. The actual on ground situation around the review site (as set out in Appendix A) comprises buildings in the range of 12 to 17 storeys. Vogue at 30 storeys and no.661 Chapel Street at 30 storeys have unique circumstances that mean they cannot be relied upon as precedents for a 37 storey building on the review site.
15. Thirdly, we are persuaded that from a mid-range view from the north, a 37 storey building and the proposed 32 storey building, would most likely completely obscure views of the Capitol tower. We agree with the Council that this would be contrary to policy that contemplates a public open space in this location, with a possible tram super-stop and continued activation of Chapel Street. We think people walking along Chapel Street and using the public spaces would orientate to the Capitol Grand building particularly if seated in the area for some time.
16. Finally, we think approving this development, where there are no unique circumstances or obvious public benefit, would make a mockery of the long established planning framework. It would set in place a race to the top where the sky is the limit. There would be no certainty, and planning and orderly transition would be replaced by speculation and uncertainty.
17. We think this would be contrary to the consistent approach of other divisions of this Tribunal and to orderly strategic planning. We see no circumstances or policy directions that lead us to cast aside a long established, well founded strategic planning framework that a recent Panel has found to be strategically justified.
18. For the above reasons, we find that a height of two and one half times the discretionary height limit fails to respond to its policy and built form contexts and this is fatal to this application.

Does the building's form and detail appropriately respond to its built form and policy contexts?

1. Mr Finanzio described the design motif as "Jack and the Beanstalk". We understand the built form aims to evoke an illusion of a twisting, curving beanstalk climbing into the sky.
2. Adopting a more mundane planning description, the proposed building would comprise a three storey base that would be constructed to the site boundaries, except for a 4.9 metres setback to Chapel Street.
3. Levels 3 to 15 would be within the base, with setbacks of 7 metres from Chapel Street, 3 and 4 metres to Daly Street and Almeida Street respectively and 1.7 to 2.49 metres to its western boundary. The façade of the mid part of the building would include slight indents and curves.
4. Levels 16-21 would vary from the levels below by having a 9 metres setback to Chapel Street.
5. Levels 22-36 would be differentiated from the levels below by a protrusion on the north wall to the title boundary and by a chamfer to the southwest corner, opposite Capitol Grand building.
6. The rooftop plant would comprise two storeys (7.8 metres height), setback from the parapet below.
7. Materials would comprise white concrete finishes and silver-grey glazing with some vegetation within the various indents.

1. The applicant says the building would be tall, slender, and highly articulated through landscaped and sculptured terraces, particularly on the western and northern elevations.
2. The responsible authority says the building fails to provide the podium/tower typology with upper level setbacks encouraged by policy. It says the building would consequently comprise breadth and massing that would be dominant and excessive.
3. Mr Peak made no submissions regarding the architectural quality of the building.

1. It was Mr Czarny's expert opinion that the building comprises a series of considered parts. He says it includes a podium rising to NGL 10-12 metres. There is a lower middle section that can be distinguished from the upper middle section by different setbacks, indents and protrusions. The visually prominent plant and equipment is a positive feature as it caps the building.
2. He described the building as fluid and curvilinear, with an exaggerated vertical profile. He says it would be distinguished from the nearby orthogonal or elliptical buildings. He accepted in cross examination that a lower building could need to be redesigned.
3. Mr Govenlock described the building as slender, visually interesting, and organic and fluid shaped. It was his opinion that the building comprises high quality architecture.

1. Clause 15.01 encourages new development to achieve architectural outcomes that contribute positively to the character of an area and be a high standard of design.
2. Clause 21.06 requires a high standard of built form, detailing and architectural design. It encourages a continuous street wall with a uniform height.
3. Clause 22.17 encourages innovation and design excellence that makes a positive contribution to the appearance of the public domain. It also encourages a consistent wall height along Chapel Street. The preferred built form typology comprises podiums built to the street edge and tower elements setback to maintain sunlight access and sky views. Design features and urban art are encouraged. Expanses of blank glass and solid walls are to be avoided.
4. The Forrest Hill Structure Plan 2005 contains the above design principles and further discourages buildings with a monolithic appearance. It encourages built form to be moderated by curved form and lighter colours.
5. DDO8 encourages the upper levels to be highly articulated and visually distinctive. There should be appropriate separation above three storeys to other buildings to allow sunlight and daylight and to protect amenity in other buildings. The upper levels of a building should be set back 3 to 6 metres from the site's boundaries to side streets and laneways.

1. We are not satisfied that the form and massing of the proposed building responds positively to the encouragement in policy for architectural excellence, innovation and a podium/tower form. We note that most of the taller buildings in the Forrest Hill precinct have a podium and tower form, with the tower being elliptical and generally set back behind a podium and from other development, so that they "read" differently to the older, lower buildings.
2. We think the building would achieve the built form that policy seeks to avoid, that being a large, monolithic and bulky form without space around the upper levels to provide separation and views of the sky and sunlight to the public realm.
3. It would be orthogonal, with a relatively broad face to the east-west alignment. Its curved corners that would be formed by the horizontal overhangs would also read as an orthogonal development.
4. We accept that the different setbacks of the different sections of the building and the various indents and protrusions including the chamfer, provide some articulation and complexity into what would otherwise be a bland, squarish building.
5. However, the variances in built form are very subtle. One needs a very good pair of glasses to make out the features that differentiate the base, two middle parts and the cap of the building.
6. In truth, we think the building is designed to maximise its floorplate. There is no reference to a podium/tower typology. It rises to its full height with much the same width, breadth and form from its base.
7. We think its height, massing and breadth would make it a dominant and overbearing building in this context, particularly given its exposure to streets on every side.

Does the proposed ground level public space/conservatory respond to policy and its setting?

1. It is proposed to provide on the ground floor a food and beverage premises with a floor area of 214 square metres. The food area would have two levels of offices above, with terraces overlooking the conservatory. Adjacent to this area, on the northeast corner, would be a conservatory with an internal height of three storeys. It would include an area for plants with informal seating, enclosed by a vertical glass louvre system. Entry to the food area and conservatory would be via doors to Chapel Street and Daly Street. The space could be activated by public art and pop-up uses.
2. The remainder of the ground floor would be used for a shop with a floor area of 60 square metres facing Daly Street. There would also be a residential lobby for the apartments, and various utility services.

1. The ground floor conservatory would be at the northeast corner of the site, with frontages to Chapel Street and Daly Street.
2. Daly Street is the eastern part of an east-west pedestrian link between Chapel Street and Yarra Street. It includes a narrow link at the west end of Daly Street to Claremont Street, and a pedestrian friendly and attractive link to Yarra Street, bordered with shops, businesses and cafes.
3. The responsible authority advises that the redevelopment of the Roger David site at 18-20 Claremont Street will include a pedestrian link and atrium to replace or augment the existing narrow link.

1. The applicant says the conservatory enhances the public realm by inviting diagonal pedestrian access between Chapel Street and Daly Street. The space would augment Daly Street as an important east-west link through Forrest Hill. It can be enclosed or opened in response to wind conditions. The applicant says the conservatory would provide a significant public benefit.
2. The responsible authority says the ground level conservatory is ill defined and fails to provide a public benefit. It says the conservatory is little more than a foyer to a private building. There is little to attract the general public to use the space. It is unclear as to the hours of public access, activation and security of the space.
3. It says the amenity of the space would be compromised by wind around the building. The doors and vertical louvres could not remain open and meet comfortable walking and sitting conditions. It says the conservatory would be either private, or unattractive public space.

1. Mr Czarny thought the conservatory would be a positive benefit to the Forrest Hill precinct because it would invite public access and it would activate the streetscape. Mr Govenlock thought the café and the 10 metres high space would provide its own identity and make it a vibrant place.
2. Both Mr Czarny and Mr Govenlock accepted in cross examination that the design of the plaza was not fully resolved. Mr Govenlock thought the space would function as a private space because it would be enclosed. He also accepted that the public space to be provided within the Roger David site is the more strategic space. Hence the role, function and design of any public space at this site needs further discussion. Mr Czarny also agreed that the design of the public space is not fully resolved.
3. Professor Melbourne says the prevailing winds through the area are from the north. The winds can be sufficiently strong to be uncomfortable for people sitting in a café. He says the real test is whether a waiter can serve a drink, and this could not occur without screening. It was his expert opinion that Daly Street and Chapel Street and the conservatory would be suitable for pedestrian transit, but not for consuming food and beverages without screening or the doors closed.

1. Planning policy generally encourages the provision of attractive interfaces between buildings and the pedestrian public realm as follows:
   • Protect and enhance the public realm. Public spaces should be safe to move in and through at any time (clause 15.01)
   • Ensure adequate surveillance and fine grain built form within activity centres (clause 21.06)
   • Provide safe, accessible, usable, clean streetscapes and pathways (clause 21.06)
   • Promote and maintain the City's streets as visually open and vibrant public spaces (clause 21.06)
   • Seek opportunities to improve or create new public spaces, hubs and links (clause 21.06)
2. An enhanced pedestrian experience, quality public open space and an east-west pedestrian link are consistent objectives in the planning for the Forrest Hill Precinct as follows
   • With particular regard to Forrest Hill, DDO8 seeks to create a mid-block east-west link and public space that provides a vibrant, attractive and safe pedestrian and cycle connection through the Forrest Hill precinct
   • Ensure development incorporates continuous awnings, passive surveillance and continuous, active retail or commercial frontages (DDO8)
   • Development should contribute to high quality, safe, distinctive and walkable public realm. Active street frontages, new public and private spaces and a new east-west link (clause 22.17)
   • Provide a public pedestrian/cyclist laneway that extends between Yarra Street and Chapel Street on the Daly Street alignment; and
   • Provide a mid-block east-west link incorporating a small urban square.
3. Amendment C172 proposes to create a mid-block east-west link and public space that provides a vibrant attractive and safe pedestrian and cycle connection through the precinct. The framework plan shows the review site to have a plaza, one of five possible sites on the network of indicative pedestrian links.

1. The planning policy framework strongly encourages a building on this site to contribute to the east-west link along Daly Street.
2. It is not our role to design this space. We have to assess the proposal before us. It proposes a café and conservatory within a void up to 10 metres in height, enclosed by glazed walls. Access would be from Chapel Street and Daly Street. The east-west link would be further activated by a small retail premises at the northwest corner of the ground floor. The ground level would be protected by a canopy.
3. We accept that the café and the conservatory would support the east-west link to some degree. A café would provide a place for people to stop and rest and so provide casual surveillance during business hours. The conservatory could be a transition route between Chapel Street and Daly Street, reducing a walking trip by a few seconds. It could provide shelter and protection from inclement weather.
4. We are not persuaded that the proposed public space meets the aspirations set out in the various policy frameworks.
5. We agree with the council that it would appear little different to the foyers of most large office or residential buildings. It would be separated from the public realm (the street) by glazing and doors. It would appear to be private space, activated during business hours. It would be a place one enters predominantly to purchase a beverage or refreshment.
6. It appears to have little utility beyond purchasing refreshments. It makes little difference to the time or convenience for a person using the east-west pedestrian route. There appears to be little encouragement for people to casually sit and rest, as it would appear to be private space, and there is little room provided for casual seating.
7. Even if it is accessible outside business hours, its enclosure with doors and glazing could make it uninviting. There could be a sense of entrapment, particularly if there is no obvious surveillance in place.
8. A public space needs to be actively managed to be successful. There are no details before us regarding who would make the space active and interesting.
9. We were not taken to a clear philosophy that underpins the design of this space. There are no clear answers as to who would use the space. It is unclear how the public space is intended to integrate with, and complement the other public spaces in the area such as the space in the Roger David development and the Capitol Grand, and Council's public space in Almeida Crescent.
10. Professor Melbourne's evidence was compelling as to the need for protection from wind if it is to be a place in which people can sit and comfortably enjoy a beverage or meal. If the preference is for the area to be open at all times, there seems to be little point including space for beverages. The space would need to be activated in other ways.
11. The design of the public space also needs to respond to other environmental conditions including shadows from the Olsen Hotel opposite, and vehicle movements and noise from Daly Street and Chapel Street.
12. We agree with Mr Govenlock and Mr Czarny that there are too many unresolved questions with this conservatory proposal. It may be an appropriate response to the environmental challenges of wind and shadow and the policy aspirations of public space, but it needs a coherent design and activation strategy.

Would the development provide acceptable amenity for its future neighbours and residents?

1. The applicant says the development would contain a mix of one, two and three bedroom dwellings that provide housing diversity and choice. It says the dwellings would provide well dimensioned habitable rooms with good daylight and outlook. All dwellings would have natural light and ventilation. Private open spaces areas would comprises balconies and wintergardens with areas of 6 to 14 square metres.
2. The amenity of the dwellings would be augmented by three communal areas on levels two, sixteen and 37, as well as the ground floor café and conservatory. Residents would also enjoy very convenient access to the amenities of Toorak Road and Chapel Street and the multiple facilities of Melbourne's CBD, Southbank and Docklands.
3. Mr Peake says the Revision "F" plans to which his client agrees provides a wider and deeper chamfer at the southwest corner. He says the increased chamfer should protect the amenity of the future residents of the Capitol Grand.
4. The responsible authority says the amenity provided to future residents of this building would be problematic. It says the proposed winter gardens would be too small to be used as private secluded open space. Their utility would also be constrained by external windows rather than openable doors that would allow access to a balcony. It is also unclear which dwellings would have winter gardens. We were advised that the winter gardens would be removed in the 32 storey building.
5. The responsible authority was also concerned with the environmental sustainability of the dwellings. It says the development fails to comply with the design guidance provided by clause 22.05 with regard to ventilation, daylight, thermal comfort, sunlight, renewable energy, stormwater management, and air conditioning and recycling during/after demolition.
6. It also says the development could adversely affect the amenity provided to residents of nearby multi-storey buildings, particularly the Capitol Grand. It was concerned with height, visual bulk and overshadowing. More generally it was concerned that the height and massing of the proposed building greatly exceeds the reasonable expectations of future residents who may think that a new building would be generally consistent with the 50 metres preferred height limit.
7. Mr Govenlock concluded that the amenity of the dwellings would be satisfactory. He says the dwellings would have well dimensioned habitable rooms. They would not rely on borrowed light, and the building would provide communal recreation areas, site services and convenient car and bicycle parking.

1. Clause 15.01 encourages development to minimise detrimental impacts on its neighbours. Clauses 15.01, 15.02 and 16.01 all encourage a development to use resources efficiently and to minimise greenhouse gases.
2. Clause 21.06 encourages possible amenity impacts of higher density development on neighbours to be managed. It encourages new dwellings to provide good quality amenity for their occupants. Matters to be addressed include overlooking and overshadowing, as well as daylight, sunlight and noise within dwellings. The quality of private open space in new developments is specifically noted as a concern in clause 21.06-3.
3. The Guidelines for Higher Density Residential Development provide objectives and design suggestions in respect of the amenity provided for neighbours and future residents. Clause 52.35 requires an urban design and context report that addresses the relationship of the proposed building with its neighbours.
4. We have not considered the draft Better Apartment Design Standards as it is not in the scheme at the time of our decision. We were also advised by the parties that they anticipate that transition arrangements would apply to current applications.

1. We generally agree with Mr Govenlock that the proposed dwellings would provide reasonable amenity for their future residents. There is a diversity of dwellings to meet a wide range of housing preferences. The habitable rooms appear to be well dimensioned, none rely on borrowed light or saddle back windows, and most dwellings would have open and well sized balconies.
2. We accept the proposition that the amenity of the dwellings would be augmented by the communal recreation facilities within the building. We think the site's proximity to the rich array of public transport, shops and cafes in the area, as well as the education, health and employment opportunities in central Melbourne would make the building an attractive place to live.
3. We also agree with the responsible authority there are unresolved concerns with the dwellings. We were advised by the applicant that the wintergardens would be applied to level 30 and above, but they are not shown on the amended plans. We agree that their location, size and form is unclear. We think it is important to clarify this design detail so as to be clear as to whether the upper level dwellings would have accessible balconies or larger internal space. While we think it could be a matter dealt with through permit conditions, we note the wintergardens have design consequences for the external appearance of the upper levels of the building. We think it is a matter that needs to be resolved in the primary assessment stages. This has been an important consideration for the Tribunal.
4. With regard to unresolved environmental sustainability matters, we agree with the applicant that most matters can be addressed through a sustainability management plan to the satisfaction of the Council. However, we think that a daylight assessment should be provided with the application material to ensure that habitable rooms meet acceptable standards. We
5. We agree with the responsible authority the primary amenity concern arises from the building's relationship with Capitol Grand and other nearby buildings. As noted above, we agree that the building would be far too tall in this area. We are confident that it would exceed the reasonable expectations of people who have purchased northeast and northwest facing dwellings 20 storeys and above. They would expect uninterrupted views, instead they would see a tall and wide building nearby.
6. They may not have a right to a view, but they have a reasonable expectation that new nearby buildings would be generally consistent with the prevailing policy framework, particularly if there is no obvious public benefit for the generous exceedance.
7. Except for the highest floors, most of the dwellings in the Capitol Grand would be overshadowed between 9am to 3pm. Instead of an attractive view and an energy efficient northern orientation and solar access, these dwellings would have limited solar access.
8. We accept that the review site is on the north side of Capitol Grand and some overshadowing is inevitable at the lower and possibly mid-level parts of that development. At 37 storeys, and even at 32 storeys, we think the proposal reflects a winner take all approach that captures the solar access and views for this development at the expense of the amenity of the residents of Capitol Grand.
9. We also think that ILK to the southwest will also experience extensive overshadowing in the morning period. Similarly with Capitol, some shadow can be expected, but the shadow cast by this building would be considerably greater than what might be reasonably expected by the policy context.
10. We think there is no basis in policy or context to support this outcome. These adverse impacts on the amenity of the neighbouring dwellings and the unresolved internal amenity matters have been determinative in our decision.

Would the development provide adequate parking for vehicles and bicycles?

1. The proposal would accommodate 265 cars in car stackers located in eight basements. 245 car spaces would be allocated to residents and 20 spaces would be allocated to people working in the offices. The car stackers would be accessed via a driveway to Almeida Crescent and four vehicle transfer cabins located on basement one.
2. Pursuant to clause 52.06, the development has to provide 535 car parking spaces. It seeks approval to reduce the provision of car parking by 270 car parking spaces.
3. The responsible authority had no objection to the proposed reduction of car parking. It was satisfied that the number of spaces would be generally consistent with car ownership rates experienced in Forrest Hill. It was also satisfied that the road network could accommodate the additional traffic.
4. The development would provide 137 bicycle parking spaces. It is required to provide 120 bicycle parking spaces, hence it complies with clause 52.34.
5. Mr Kiriakidis recommended additional bicycle parking (428 bicycle parking spaces) should be provided to offset the reduction of car parking. He did not appear and the parties made no submissions regarding his recommendation.
6. We make no findings regarding the adequacy of car and bicycle parking. This matter has not been determinative in our decision.
7. The development would include a loading bay for residential loading and the café and shop. A loading bay complies with clause 52.07 and responds to a concern raised in many multiple dwelling developments; that being traffic congestion caused by larger vehicles delivering households goods and furniture. We think this is a positive aspect of the building.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

The key buildings in the site's immediate vicinity include:

• The Capitol Bakeries site to the north on which the Capitol Grand development will occur. It will have a maximum height to the parapet of RL179.8, with plant extending to RL184.46. The maximum building height will be 173 metres to the parapet
• The ILK apartments to the southeast at no.221-237 Toorak Road are 22 storeys, 77 metres (RL86.9 metres)
• To the east is a 12 storey building at no.650 Chapel Street (RL45.72 metres) within the Como development increasing to the Channel 10 building with a height of 21 storeys
• The Olsen Hotel is on the north side of Daly Street, comprising a 14 storey building with a height of 50 metres
• A three storey heritage building (a former substation) is located to the northwest in Daly Street
• Two storey building to the west at no.9 Almeida Street
• The Vogue building at the northeast corner of Chapel Street and Malcolm Street with a height of 32 storeys (RL 124.8 metres)
• A building at no.649 Chapel Street with a height of 17 storeys
• A building under construction at no.661 Chapel Street with a height of 30 storeys (RL96.68)
• A permit has been granted for a 20 storey building at no.663 Chapel Street
• A building with a height of 16 storeys at 681 Chapel Street, on the southwest corner of Chapel Street and Alexander Avenue
• A building of 21 storeys at 20 Claremont Street
• A building of 27 storeys at 42-48 Claremont Street

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Daly Street Developments v Stonnington CC [2010] VCAT 1705