Angel & Naggar Superannuation Fund v Melbourne CC [2014] VCAT 1445

Angel & Naggar Superannuation Fund v Melbourne CC [2014] VCAT 1445 - VCAT 2014 case summary — Zoe

[8]

A related third principle is that in a precinct with sites of different sizes, that in certain circumstances it may be appropriate to expect larger sites to contribute more significantly to a shared separation distance. Often such uneven distribution of separation distances can be avoided by expecting that smaller sites will be consolidated to create larger sites that can accommodate appropriate setbacks. However occasionally smaller sites in urban renewal areas cannot be consolidated. That is the case here, where the review site is surrounded on three sides by laneways, with the fourth interface to a relatively recent townhouse development with a tight ownership structure by five separate entities. At the same time the review site is adjacent to a very large development site to the west (at around 4000 square metres) and a comparatively larger and somewhat unusually shaped parcel to the north, with the unusual shape contributing to the potential for a larger setback along its southern interface to the review site.
In this context we adopt the evidence of Mr Sheppard and Mr Bastone, that it is reasonable that the site be developed in the manner proposed, creating an expectation that a larger share of the separation space to future development be provided on the adjacent land to the north and west. The site benefits from an immediate abuttal to 3.2 metre wide laneways to the north, west and east. Along the eastern boundary of the review site this is proposed to be supplemented by a setback of 5 metres from the centre of the laneway to the proposed tower element, to ensure that a separation of 10 metres can be achieved to any future building of a similar height on land east of the review site.
To the north and west, the proposal is for the tower element to directly abut the laneway for its full height. This would place a requirement for a substantial setback on adjoining properties to the north and west, should they be developed with tall buildings, in order to achieve an overall separation of 9-10 metres. To be clear we consider land to the north and west to both be strong candidates for future development, albeit each with their own constraints.
The Council argued that this was not an equitable arrangement. In fact it is not an equal arrangement, but it is one that we find equitable. The review site has an area of 242 square metres. The setback to the eastern boundary makes each tower floorplate around 210 square metres in size. To apply setbacks of the ilk sought by Council to the northern and western boundaries would further reduce this floorplate to around 120 square metres.[5] At such a floorplate size, the Applicant submitted that the developability of the site is brought into question. In contrast, the very large development site to the west could provide a 6 metre setback without significantly reducing the proportion of developable land available to it. Also the land to the north, containing the Turf Club Hotel, could site a tower form away from its southern boundary by a similar distance. Such an approach will allow each of these sites to be developed in a manner consistent with the CNSP. In our view, that is an equitable outcome, far more equitable than burdening the review site with setbacks that would potentially render it unable to be developed to the height intended in the CNSP.
For these reasons we find that the proposal as before us achieves an equitable form of development, having regard to the principles we have identified.
The second concern raised by Council is the form of development along the eastern boundary of the site, where it abuts Bedford Place. The proposed Schedule 61 to the DDO as part of Amendment C196 seeks:

[10]

We accept that there are very good urban design reasons why one would not want development to 'overwhelm' the pedestrian experience within a narrow laneway. We also accept that the consistent adoption of such a form of development will achieve a good level of articulation to laneways within this precinct. However, we don't accept that it is a necessary built form outcome for the review site in order to achieve a proposal that is acceptable and reasonable. That is because of the specifics of the context to the review site, which we set out below.
The laneway in question, being Bedford Place, is not a friendly or well used pedestrian environment, and nor is it ever likely to be in the future. A number of physical attributes result in this observation. Firstly, the review site is the one site that has its only frontage to the laneway. Therefore, aside from the two dwellings that have been constructed to the rear of 39-43 Bedford Street, the review site is likely to be the only property that ever provides a primary pedestrian entrance to the laneway, and thus generates some pedestrian activity. Secondly, the laneway has a right angle bend in it, and thus is not a public realm where views can be gained to another destination, such as another street. In the long term, views south down the laneway from Flemington Road will end in a large building. Thirdly, the laneway does not provide a convenient pedestrian path. In fact it provides a longer route from Flemington Road to Bedford Road, and a far less pleasant one, than is gained by walking along these two roads and their sizeable corner splay to the Haymarket Roundabout.
For these reasons, there is not the same demand for a particular urban design outcome along this laneway that is more of a 'human scale.' Furthermore, we have some doubts as to whether this type of setback tower treatment will be encouraged by the DDO Schedule to any other site along this laneway, as no other properties have a frontage to this laneway. While Council flagged during its submission its intention that the tower setback be required along all properties along a laneway, we consider the use of the term 'laneway frontage' may mean that properties with a sideage or rear boundary to the laneway may not find this part of the DDO applying to them. For these reasons we do not support the Council's view that the building should adopt a podium and tower form to the Bedford Place interface.
The proposed development seeks to address the laneway with a glazed ground floor presentation, which will extend to also cover the floor above, which has been called a mezzanine. Above the glazing will sit a canopy, dependant upon the consent of the road management authority, which we understand to be Council. We consider this glazed presentation coupled with the canopy will present an appropriately inviting entrance and façade treatment to the laneway, which will assist to draw the eye away from the overall height in short range views. However we consider this positive element of the façade treatment can be improved by extending the glazing around the north-west corner of the building at both ground and mezzanine floors. We raised this potential change during the course of the hearing, and will implement it in conditions.
We also consider that the canopy treatment above the mezzanine floor should be reduced in length along the northern elevation, so that it runs from the north-western corner to the closest edge of the entrance to the car stackers. This will ensure that the canopy construction does not have an impact on the canopy of the tree that currently grows in the beer garden of the Turf Club Hotel.
Subject to these two changes we are satisfied that the built form outcome is an appropriate one for the review site.

[14]

Council submitted that they would not pursue the issue of wind impacts based on the evidence submitted by Professor Melbourne. The fact that none of the parties sought to cross examine Professor Melbourne means that we must give his evidence significant weight.
We adopt the evidence of Professor Melbourne and accept that the wind conditions of the laneway and surrounding environment will be acceptable and within the criterion for walking comfort.
Mr Bastone addressed the issue of overshadowing concluding that there will be additional shadow but in this context, the proposal will not unreasonably increase overshadowing to adjoining sites and the surrounding area. Mr Fink the adjoining resident to the south acknowledged that in this context there will be overshadowing in the afternoon to his private open space and north facing windows, but access to daylight is maintained. We agree with Mr Fink's observation noting that his ground level private open space is removed from his apartment and accessible via a walkway behind the garages and also that he has a balcony extending from his living room which appears to accommodate a bbq and table and chair. As we stated earlier, in this context where the strategic intent is for taller redevelopment of the precinct, short term amenity impacts will occur but are considered reasonable.
As to overlooking between the proposed building and Mr Fink's property, this is easily resolved with screening using opaque glass and a condition requiring glazing to the south facing bathroom window of studio five on level three is included. To the extent that the operator of the Turf Club Hotel identified a concern regarding the apartments overlooking the beer garden, we do not consider this beer garden to be a sensitive land use. As such the proximity of the beer garden does not demand the placement of screening devices on the windows of the proposed apartments. The final concern raised by this third party is the potential impact of the development on the condition of the large tree that exists in the rear of the beer garden. The Tribunal is not assisted when parties raise such concerns, unsupported by the opinion of an arborist. On our inspection, we note that the proposed development is to mirror the placement of the existing building on the land, which we anticipate to have footings and the like. We therefore consider that the erection of a new building with footings on the review site is unlikely to have a significant impact on the said tree.
The owner of 243 Peel Street raised two amenity concerns. The first relates to overshadowing by the proposed development of their rear yard. The shadow diagrams depict that shadows from the proposed development affect this area from 2.00pm onwards at the equinox. We consider this extent of overshadowing to be relatively minor in the context of a designated urban renewal area. The second concern is the potential shadowing of future solar panels. The Tribunal cannot possibly assess the shadowing impacts on solar panels which are under consideration, but not installed. In any case, we anticipate the roof of the existing building to not experience shadows until after 3.00pm at the equinox, which will allow for solar panels to be considered by this neighbour.
For these reasons we find that the proposed development will not cause any unreasonable off-site amenity impacts.

[17]

It is in this context that two concerns were raised with this proposed development in terms of internal amenity. The first is the complete absence within the development of any communal open space, or private open space in the form of balconies. While we accept that prevailing weather conditions in very high rise buildings might make balconies relatively unusuable, we do not understand that to necessarily be the case for an 18 storey building. We therefore have an expectation, as set out in the Guidelines for Higher Density Residential Development[6] (GHDRD), and reinforced by the CNSP[7], that private or communal open space will be provided in a development of this typology.
We are aware of instances where some or most apartments in a development may have smaller than usual or no private open space, but only where a large and usable area of communal open space is provided in lieu. This approach is supported by the GHDRD where they note that open space can be provided as private, communal or public open space. We are likewise familiar with some instances where developments may provide less private and/or communal open space where a large amount of public open space is at the doorstep. One such example may be a development site directly opposite one of the city's grand gardens, such as Flagstaff Gardens or the Royal Botanic Gardens. But that is not the context here.
Here we have a development of 53 apartments where absolutely no private or communal open space is provided, and the nearest public open space we were referred to is some 650 metres away, albeit it is Royal Park with its wide range of facilities. The justification for this approach appears to be a combination of factors. Firstly we were referred to the range of facilities and services available in this precinct, which we accept are plentiful, but do not serve the same role as private or communal open space. Secondly we were referred to the intention to provide some different choice to the market, and specifically to a market that was aimed at the more affordable end of the spectrum. While we applaud housing choice, or diversity, we do not accept that housing choice should extend to deliberately providing options that are deficient in their amenity standards. Further, for the reasons set out above we do not accept that housing at the more affordable end of the market should have a lower level of amenity.
We were also referred to the general absence of balconies in some developments, and the movement away from open balconies to more flexible spaces that are part indoor and part outdoor. We consider that these issues and anecdotes simply highlight the need to provide well designed spaces, rather than encourage the avoidance of providing private or communal open space at all.
We are firmly of the view that for this development to achieve an appropriate level of internal amenity, all apartments must have access to either private or communal open space, or a combination of both. We will set a condition requiring that one or both is provided. If the developer chooses to provide private open space for each apartment, we consider that the usual standards of 8 square metres with a minimum dimension of 1.6 metres should apply. We also accept however that an alternative to providing individual areas of private open space would be to provide one excellent high quality area of communal open space. We agree with the Applicant that in this case that should not be on the roof. Instead we consider that it should be located at floors 5-10, and that at least half a floor (that is at least 100 square metres) should be dedicated to an indoor/outdoor area in which occupants can enjoy some passive recreation space, and have a barbeque with friends if they choose. We have confidence in the Applicant design team and the Melbourne City Council that between them they can resolve an adequate design.

[18]

The second internal amenity issue that arose is that relating to the existing noise from the beer garden of the Turf Club Hotel. The operator of the Hotel lodged a statement of grounds objecting to the establishment of a residential land use in close proximity to the Hotel, which may have the effect of restraining its activities. That statement of grounds was made on some bases, two of which we are not persuaded. The first basis of the statement of grounds is that the Hotel presently complies with SEPP N-2. Evidence circulated by Mr Delaire demonstrated that in fact the noise currently generated by the beer garden at the Turf Club Hotel does not comply with the existing noise limitations, relating to an residential land use at 1 Bedford Place. We were then informed that there is a much closer residential land use, albeit in the form of student accommodation, at 5-17 Flemington Road (RMIT Village). There is therefore at best some doubt as to whether the Hotel currently complies with the relevant noise requirements. Even if it does, it must do so in relation to a residential land use that is as close as that proposed in this proceeding.
The second basis of the statement of grounds is that the Turf Club Hotel is a live music venue, and as such Clause 52.43 of the Melbourne Planning Scheme protects the venue from new residential development. However the statement of grounds did not establish on what basis the Hotel is a live music venue, and anecdotal evidence provided by the Applicant and Mr Fink suggested that live music is not regularly nor semi-regularly offered at the Hotel. As such, we have not been persuaded that Clause 52.43 applies to this proposed development. Our deliberations on these matters were not assisted by the decision of the Turf Club Hotel to not appear or be represented at the hearing.
The Applicant has proposed a condition be included on any permit issued that requires the apartments to be designed in a manner that achieves the relevant Australian standard in relation to limiting the impact of traffic noise. We consider that is an appropriate outcome. It is up to the venue operator of the Turf Club Hotel to ensure that they comply with the current noise limits, and if they do so in respect of the adjacent student accommodation, then we are also persuaded that they will likely comply in relation to the proposed development on the review site.
In other respects we are satisfied that an appropriate level of internal amenity is achieved, having regard to the orientation of the apartments, the amount of daylight into each of the rooms, the availability of bicycle storage on site and the likely future outlook from each apartment.

At a glance

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Judgment (49 paragraphs)

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Legislation Cited (4)

Cases Cited (2)

Angel & Naggar Superannuation Fund v Melbourne CC [2014] VCAT 1445 (24 November 2014)