Alkero Development Pty Ltd v Stonnington CC - [2018] VCAT 1120 - VCAT 2018 case summary — Zoe

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Alkero Development Pty Ltd v Stonnington CC

[2018] VCAT 1120

Victorian Civil and Administrative Tribunal|2018-07-16|Before: Helen Gibson AM

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At a glance

Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2018-07-16

Before

Helen Gibson AM

Source

Original judgment source is linked above.

Judgment (74 paragraphs)

[1]

For the reasons set out above, we find that additional development consent is required under GRZ5 and SLO1. Any such consents must be assessed in accordance with the policy and provisions of these controls and must comply with any mandatory provisions of the planning scheme, which apply under these controls, as they exist at the time of the decision.[39]

[2]

Our conclusion is that the amendment application cannot be approved because certain aspects of the proposed development are prohibited and will exceed the height of the development for which there is an accrued right under the permit pursuant to section 28(2) of the Interpretation of Legislation Act 1984.
Certain parts of the development allowed under the permit will exceed the mandatory height controls, which now apply under the GRZ5 and DDO3. There is an accrued right under the permit to exceed the height control in DDO3 but only to the extent of the heights allowed under the permit for various parts of the building envelope.
The permit could be amended to allow changes to the development under DDO3 to the extent that the height of various parts of the building envelope remain at or below the height allowed under the permit, even though those heights may still exceed the mandatory height now applicable under DDO3. To the extent that the height of any new parts of the building envelope exceeds the current height allowed under the permit, the amendment cannot be approved.

[3]

The Council's submission includes the following description of the Yarra River corridor:
1. The Yarra River Corridor generally, and the section of the Yarra River corridor between Grange Road and the CBD, is a special place, with outstanding landscape, recreational and environmental values.
2. It is a highly valued and intensively used community asset; used and enjoyed by walkers, joggers and cyclists as they travel along the Capital City Trail, and rowers and other water craft as they travel up and down the Yarra.
3. The Capital City Trail itself links to the CBD, Main Yarra Trail, Merri Creek and Darebin Creek Trails, and the Gardiners Creek trail. It is part of an extensive walking/jogging/cycling riverside trail network that provides a link between the northern, north-eastern and south-eastern suburbs.
4. The Yarra and its environs are a community asset used by residents of Stonnington and Melbourne. It is a community asset of metropolitan significance.
We agree with the Council's description.
The landscape, environmental and recreational significance of the Yarra River is recognised in the policies and provisions of the planning scheme. Significant changes to these policies and provisions were introduced by Amendment GC48, referred to earlier in these reasons. These included changes to clause 12 and DDO3, and the introduction of SLO1. A greater emphasis on the value of the river corridor, and on the importance of achieving built form outcomes which protect and enhance the river's context is now apparent, when compared to the planning regime in place when the Matthies case was decided. Based on its submissions and evidence, we have not been persuaded that the significance of these changes, and their implications, have been fully appreciated by the applicant.
Clause 12.05 of the State Planning Policy Framework (SPPF), sets out State policy for rivers. The objective of clause 12.05-1 is to protect and enhance the significant river corridors of metropolitan Melbourne. Related strategies include:

[23]

Relevant decision guidelines are:
- Whether buildings and works will protrude above the predominant tree canopy within a given area.
- Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural setting of the river corridor.
- Whether the existing and proposed vegetation fronting the Yarra River will filter the majority of views of the proposed development.
The relevant key themes emerging from the State and local planning policy frameworks are those relating to achieving sensitively-designed built form outcomes which respond to, and respect, the landscape character of the Yarra River environs. Rather than just protecting river corridors, an objective of State policy is to enhance these areas. Development should seek to integrate with the topography and should incorporate vegetation to create a well-landscaped context that will enhance the river environs. The scale, siting and design of buildings should minimise visual intrusion and protect the visual amenity of the river. The appearance of development should be subordinate to the local landscape setting, with any views filtered through vegetation. The provisions of SLO1 and DDO3 further emphasise the importance of achieving respectful developments which respond positively to the river context and which minimise visual intrusion when viewed from the river. The important role of landscaping and vegetation in achieving the desired outcomes is noted in both the design objectives and decision guidelines.
In its assessment of the residential aged care facility, the Tribunal in Matthies gave careful consideration to that development's impact on the Yarra River environs. It is evident from a reading of the decision, that in concluding an acceptable outcome would be achieved, the Tribunal gave weight to the particular design response (which presented as a series of building elements stepping up the slope of the site) and the incorporation of meaningful landscaping, both in-ground and in elevated planters. The Tribunal found:

[28]

While the amended proposal retains the stepped profile which follows the fall of the land, there are number of changes which substantially erode key elements which contributed to the aged care development presenting as an acceptable built form outcome in its physical and planning context.
The partial infilling of the four 'fingers' proximate to the Alexandra Avenue frontage has a notable effect of reducing the modulation of the elevation as it presents to the street and river corridor, and increasing the building mass. The inclusion of these additional building elements accentuates the width of the development across the frontage and diminishes the effectiveness of the recesses in presenting an articulated elevation. We agree with the Council that, as a consequence, the development will present to Alexandra Avenue as two wide and bulky buildings.
Above this, a significant change is evident at Level 04 (Level L3 on the endorsed plans). Here, a slender diagonal element oriented north-west/ south-east and having a width of approximately 10 metres is replaced with partially staggered form in excess of 20 metres wide and positioned largely perpendicular to the frontage. A related change is the replacement of adjoining communal landscaped terraces with two terraces associated with dwellings. The extent of landscaping supported by these elements is notably reduced. The roof of the former diagonal element, which was entirely devoted to an outdoor rooftop communal open space area, and which was landscaped, has been replaced by the roof of the dwellings below.
In the extract of Matthies provided above, the Tribunal's reference to the importance of the tree planting (in planters) on the terrace level will have been noted. It was a consideration of some influence in the Tribunal's conclusion that the landscaping would soften and break up the upper level form from the south, when viewed from the river environs. Also relevant to the Tribunal's assessment was that, in the view up from the public environs of the river, the upper levels would be perceived through planting, with this planting having a perspective of dominance as it was well forward of the upper level building form. The Tribunal concluded that the building would sit in a landscape context similar to its neighbours.
The amended proposal includes the loss of this significant upper level planting. The landscape plan shows no planting in the Level 4 terraces, nor is there a landscaped rooftop area. The 'tiered landscaping' which was an integral element of the approved scheme has been removed. The consequence of this is that the upper levels will have a stark prominence when viewed from the Yarra River environs. When this modification is viewed in combination with the built form changes that include the infilling of voids and reduction of setbacks from Alexandra Avenue, the resultant development will have an appearance which does not respond acceptably to its context, having regard to the applicable policies and provisions of the planning scheme.
The proposed tree planting proximate to the Alexandra Avenue frontage will have some screening effect but this will diminish as the vantage point moves further away from the site. Much of the development will rise above this planting, even when it has reached its mature height. From the river and its environs, particularly from the opposite side, the development will be highly visible. Having regard to the topography, the absence of street trees immediately adjacent to the review site, the nature of the proposed planting and the height of the development, the built form will not sit below the predominant tree canopy height. It will present as a large, austere form sitting awkwardly and unsympathetically within its context. It fails to provide an articulated built form set within the landscape and does not achieve the objectives of the SLO1. Specifically, but not exclusively, it will not minimise the visual intrusion of buildings when viewed from the river environs, and does not ensure that views of the buildings will be filtered through vegetation.
These findings are a sufficient basis for us to conclude that the proposed development will not represent an acceptable planning outcome when considered within the current framework of policies and provisions within the planning scheme which address the Yarra River corridor. There is no utility in us proceeding to consider the changes to the interface with the adjoining properties or the consequential amenity impacts. We will, therefore, not do so. This is not to be taken as any indication that the development's relationship with its neighbours is acceptable. That assessment has not been undertaken.

[29]

Application P2850/2017 is an application under section 81(1) of the Planning and Environment Act 1987 to review the council's refusal to extend the time for completion of the development under the permit until 6 July 2020.
Whilst our decision in respect of application P2380/2017 is to refuse to amend the permit, we consider that the permit should be extended to allow the permitted development to be completed.
Development has started under the permit with the demolition of buildings pursuant to the permit. The site has been cleared. In its present state, it is a jarring intrusion in the Yarra River corridor setting.
There was no strong opposition to an extension of the permit. There appeared to be a general acceptance by parties to the amendment application that the permit, which was granted by the Tribunal in Matthies, was acceptable and certainly to be preferred to the proposed amended permit.
In deciding whether to extend a permit, the Tribunal will usually have regard regard to the Kantor[41] principles. They are:
- whether there has been a change in planning policy;
- whether the landowner is seeking to warehouse the permit;
- intervening circumstances which bear on the grant or refusal of the extension requests;
- the total elapsed time;
- whether the time limit originally imposed was adequate;
- the economic burden imposed on the landowner by the permit; and
- the probability of a permit issuing should a fresh application be made.
In this case, we make the following comments with respect to each of these points:
- There has been a change in planning policy and controls with respect to height and regarding the Yarra River corridor.
- The applicant might be said to be warehousing the permit having regard to the sale of the land by the original permit holder to the current applicant; the applicant's attempts to amend the permit; and the comments by Mr Canavan at the hearing that if the amendment was refused, the applicant would seek a joint venture partner to carry out the development of the aged care facility.
- These intervening circumstances have resulted in the permit being activated by demolition of the heritage buildings on the site pursuant to the permit and the site's clearance, but no further work on construction of buildings and works commencing. However, it is clear that if development under the permit is to proceed, an extension is required.
- The total elapsed time since the permit was granted in 2014 is four years. This is not an excessively long time having regard to the scale of the proposal.
- The original time limit was not unreasonable, but a further extension of time for completion would not be unreasonable either.
- We do not consider that the economic burden imposed on the landowner by the permit has been unusual for a development of this type or scale. This is not a relevant factor.
- As our previous discussions relating to the amendment of the permit have disclosed, should a fresh application be made, an identical permit could not be granted, especially given the mandatory height controls now in the planning scheme. However, we consider that the exceedances of the changes in the planning scheme are not so great as to render the proposal under the permit unacceptable. We consider that the Tribunal's reasons in Matthies for allowing heights greater than the then discretionary limits are still justifiable and that the permit still represents an acceptable outcome.
In the interests of seeing this very large, prominent and steep site developed sooner rather than later, we consider that a reasonable time should be given to allow the development for an aged care facility to be completed in accordance with the permit. We are therefore prepared to extend the time for completion for a period of three years until 6 July 2021. In all the circumstances, we consider this is a more realistic time frame for completion than 6 July 2020, which is what was applied for.

Alkero Development Pty Ltd v Stonnington CC

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Judgment (74 paragraphs)

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Alkero Development Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1120 (16 July 2018)