[2003] VCAT 87

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for 152 dwellings, 2 cafes, office or as an alternative to the office up to 3 additional dwellings, and associated car parking at 347 Napier Street, 132 Kerr Street, 300 Young Street & 127-139 Argyle Street, Fitzroy, generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before commencement of the development hereby approved, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with substituted plans received 1 December 2002 but modified to show:

(a) modifications proposed by Mr. Michael Barlow at the hearing of Application for Review P1856/2002 before the Victorian Civil and Administrative Tribunal as marked on Plans TP 003 to TP 006 forming part of Exhibit A13;

(c) a notation that all dwellings to be constructed in accordance with the relevant Australian Standards for noise transmission within buildings;

(d) all proposed external plant and equipment (including roof top plant and equipment) which shall be concealed from view from street level and be acoustically baffled to the satisfaction of the Responsible Authority;

(e) a landscape plan which is generally in accordance with the Landscape Report Revision B dated 17 November 2002 prepared by Rush/Wight Associates but amended to show the final choice of plants and materials;

(f) access route and arrangements for visitors and café patrons to and from the car park to the street other than via the vehicular ramp to the satisfaction of the Responsible Authority;

(g) inclusion of security screens and shutters and other notations (including the notation showing the visitor and office parking) in accordance with Appendix D of the Traffic Impact Assessment dated 13 January 2003 prepared by Ratio Planning and Development Consultants;

(h) all parking bays and aisles to meet the dimensions required by the Yarra Planning Scheme;

(i) details and specification of the proposed bicycle storage and storage lockers to be shown either on the plans or in accompanying documentation;

(j) notation to show the reinstatement of all redundant crossovers;

(k) mirrors to be placed outside the car park lifts to assist persons exiting the lifts to see cars coming around blind corners;

(l) a schedule of all external materials and finishes (including colour and material sample boards) to show materials, colours and finishes to all external walls, roof, fascias, window frames, glazing types, doors and fencing, paving and outbuildings;

2. All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

3. Where the endorsed plans depict an area of the development as being for a specified use or uses, that area must be used in the manner specified and for no other use unless with the written consent of the Responsible Authority.

4. Each stage or the permitted development must be landscaped prior to the occupation of any dwelling in that stage in accordance with the endorsed Landscaping Plan and thereafter maintained to the satisfaction of the Responsible Authority.

5. Before building or works are constructed or carried out in association with the development hereby approved, either:

(a) a Certificate of Environmental Audit or a statement indicating the land is suitable for a sensitive use must be issued for the land in accordance with Section 57AA(5)(b) of the Environment Protection Act 1970; or

(b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land are suitable for the proposed sensitive use.

6. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

7. Any soil removal from the site during the construction phase should comply with EPA requirements for off-site disposal for potentially contaminated soil (ie. EPA Publication No. 626, October 1998).

8. Prior to commencement of the development hereby approved, a car park management plan to the satisfaction of the Responsible Authority prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. The car park management plan must include:

(a) the allocation of each of the parking spaces to a dwelling, office or the café as the case may be (all tandem parking to be allocated to the same dwelling),

(b) the management of visitor parking spaces and security arrangements for occupants of the development,

(c) the collection of waste and garbage (including the separate collection of organic waste and recyclables),

(d) the loading and unloading of goods and materials for the commercial uses,

(e) access to the car park for café patrons and visitors to the site, free of charge, between the hours of 7:00am and 11:00pm on any day,

(f) proposed signage to direct occupants and visitors to their designated spaces.

When approved, the car park management plan will be endorsed and form part of this permit.

9. All areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(b) formed to levels, constructed, line marked, sealed, illuminated and drained to specifications approved by the Responsible Authority; and

(c) maintained at all times to the satisfaction of the Responsible Authority.

10. Any existing vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and re-instated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense. Any new vehicular crossings must be constructed to Council's standard vehicular crossing specification.

11. All damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.

12. The number of patrons/seats for the permitted cafes/restaurants must not exceed that shown on the endorsed plans, at any one time.

13. The cafe/restaurant use hereby permitted must only operate between the hours of 7.00 am and 11.00pm seven days per week unless with the written consent of the Responsible Authority.

14. Noise emissions from the café must comply with the State Environment Protection Policy or any other standard recommended by the Environment Protection Authority.

15. No emptying of bottles into garbage bins is permitted after 10 pm on any night, or before 7 am on any day.

16. All delivery and collection of goods associated with the cafe must be conducted between 8am and 6pm Monday to Saturday.

17. Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.

18. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on nearby land.

19. Rubbish, including bottles and packaging material, shall at all times by stored within the building and screened from external view. All waste collection for both residential and commercial uses on the site to be undertaken by private contractors.

20. Storm water drainage of the property must be provided to the nearest Council pit of adequate depth and capacity to the satisfaction of Council.

21. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or metres on Council property will be accepted.

22. During the construction phase of the development, the following conditions shall be met:

(a) only clean water shall be discharged to the stormwater drainage system;

(b) stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;

(c) vehicle borne material from the premises shall not accumulate on the roads abutting the site;

(d) all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;

(e) all litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly;

(f) all site operations shall comply with the Environmental Protection (Residential Noise) Regulations 1997.

23. Prior to the commencement of construction or any works on the site (including demolition and material removal) the applicant must submit for approval to the Responsible Authority a Construction Management Plan Construction must be carried out in accordance with the plan to the satisfaction of the Responsible Authority. The plan must address, but not be limited to the following:

(a) site contamination and disposal of contaminated matter;

(b) containment of dust, dirt and mud within the site and method and frequency of clean up procedures in the event of build up of matter outside of the site;

(e) delivery and unloading points and expected frequency;

(f) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced;

(g) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;

(h) a waste minimisation and recycling strategy in accordance with the report of Scott Wilson Irwin Johnston Pty Ltd tabled with the Tribunal;

(i) any requirements outlined within this permit as required by the relevant referral authorities.

24. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (including public holidays) and 9 am - 5 pm, Saturday. No work is to be carried out on Sundays. All site operations must comply with the relevant Environment Protection Authority Guidelines on Construction and Demolition Noise.

25. A tree management plan for application during the construction period must be submitted for endorsement. The plan must be prepared by a qualified arborist and include plans to indicate the area around existing mature trees (both within the site, adjoining properties and on street) to be isolated during demolition and construction works. The plan must also include an indication of any necessary pruning works for construction and soil amelioration works.

26. Prior to the occupation of any dwelling, evidence to the satisfaction of the Responsible Authority must be provided to the Responsible Authority to show that the dwelling in question achieves a 4-Star First Rate energy rating applying the SEAV, First Rate - House Energy Rating Software. All dwellings in the redevelopment must achieve a 4-Star rating.

28. High efficient lighting to the satisfaction of the Responsible Authority must be used in all common areas.

29. This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of commencement. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr John Rantino, Solicitor, appeared on behalf of the Responsible Authority. Mr Rantino called Mr Nigel Lewis, Conservation Consultant, and Mr Jim Holdsworth, Urban Designer, as witnesses in support of his submissions.

Ms Marita Foley, Barrister, appeared on behalf of the Respondent/Objectors. Ms Foley was supported by submissions from Mr Peter Fitzgerald, Mr Geoff Barbour, and Ms Felicity Pantelidis, Respondent/Objectors. Ms Foley called Mr Robert Milner, Town Planner, as a witness in support of her submissions.

Mr Ian Pitt, Senior Counsel, appeared on behalf of the applicant for review and permit applicant. Mr Pitt called the following witnesses in support of his submissions:

* Ms Davinia Jackson, Journalist and Architectural Historian;

1. This is an application to review the failure of the Responsible Authority to decide to grant a permit for a Mixed Use Development over a large site with frontages to Napier Kerr, Young and Argyle Streets in Fitzroy. The Responsible Authority ultimately decided that had it not been for the application for review it would have issued a notice of refusal to grant a permit for the following reasons:

"The proposed demolition of 300 Young Street (dwelling) and 347 Napier Street (commercial building), Fitzroy is not consistent with the demolition guidelines contained in Council's Local Policy - Development Guidelines for Heritage Places (Clause 22.02);

The proposal is inappropriate within the Heritage Overlay area and would have a detrimental impact on the South Fitzroy heritage precinct;

The proposal is inconsistent with Council's MSS - Element 7 - Heritage Conservation and Council's Development Guidelines for Heritage Places (Clause 22.02) and has an unacceptable impact on the existing heritage building.

The proposal is inconsistent with Council's MSS Element 1 - Urban Design Framework and Element 2 - Residential Land Use and Development.

The proposal is an overdevelopment of the site and will unacceptably impact on congested local traffic networks."

2. These reasons set out the basis of our conclusion that the planning policy context supports an intensive redevelopment of the site for mixed use, primarily residential purposes, provided that the proposed redevelopment responds appropriately to the heritage significance and neighbourhood character of the locality. The proposed site is a very large site set in a diverse urban context in which modified industrial streetscapes are predominant, although low scale, fine grain nineteenth century residential streetscapes are also significant. The proposed redevelopment in our view responds appropriately to the heritage significance and neighbourhood character of the locality and does so with a building which is an example of very high quality contemporary architecture. Notwithstanding the scale and intensely urban character of the proposal, the proposal will not result in any unreasonable off site amenity impacts, and provides an entirely acceptable standard of amenity for future residents. We are of the view that in time the proposed buildings will be seen to enhance the character of the neighbourhood. Turning now to the background to the Application for Review and the reasons for these conclusions.

3. The proposal as described in the application plans currently before the Tribunal, is somewhat different from that considered by the Responsible Authority in making the decision referred to above. The amended proposal now before the Tribunal reduces the height of the higher elements in the design by one level, and reduces the extent of commercial floor space. The Responsible Authority had not formally considered the amending proposal, but Mr Rantino submitted on behalf of the Responsible Authority that the amended proposal did not satisfactorily address the matters which were of concern to the Responsible Authority.

4. The parties and the witnesses at the hearing of the application for review relied on written submissions, visual presentations, and oral submissions. A large number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality during the course of the hearing, inspection was carried out in part in the presence of a representative group of the parties.

5. The following extract from Mr Barlow's statement of evidence succinctly describes the site and its locality:

The subject site is a major parcel of land located to the east of Brunswick Street and has four principal street frontages to Napier, Kerr, Young and Argyle Streets. The site comprises two properties which together have a total area of approximately 4,465 m 2 . The site is an irregular shape as it does not include those properties located in the north-west and south-east corners of the overall `block'. The properties that do not comprise the subject site include:

s The terrace housing at the southern end of Napier Street and eastern end of Argyle Street.

s The industrial building on the south-west corner of Kerr and Young Streets.

The subject site has frontage to the following streets:

The site is currently occupied by a large industrial building, which covers most of the site and a three-level office building at the corner of Napier and Kerr Streets. The office building and warehouse building have equivalent heights of approximately 3 levels. The eastern part of the site abutting Argyle Street is part vacant which is used for car parking and part developed with a vacant single storey dwelling.

The site has a large parcel of primarily industrial land that sits in between the shopping strips along Brunswick Street and Smith Street, Fitzroy. The surrounding precinct can best be described as a mix of land uses and building types. Building heights vary with heights up to 6 levels.

Land uses in the area consist of retail, commercial and entertainment uses principally along Brunswick and Smith Streets with residential and light industrial land uses in between.

In recent years, the extent of industrial land use has been shrinking due to expanding residential land use. Recent examples of this in the immediate area are the conversion of the former warehouse buildings along the north side of Napier Street to the east of Kerr Street.

Land on the north side of Napier Street comprises of generally residential land use with building heights up to 3 levels.

To the west, the site abuts a two level warehouse building that has been converted for residential use and has had a third level added. The land on the west side of Argyle Street is residential consisting of the long side of a single storey terrace and two double storey modern town houses. Land to the east of the site consists of several single and double storey terrace houses. The western side of Napier Street comprises predominantly single and two-storey single and double fronted attached Victorian terrace houses. The only exception to this is a three-storey contemporary apartment development located on the south-east corner of Napier and Kerr Streets.

It is noted that at the north-east corner of Kerr and Napier Streets there are a number of apartment developments including the MacRobertson warehouse development ranging up to six storeys in height.

6. The proposal is for a significant mixed use redevelopment of a large part of the urban block bounded by Napier, Kerr, Young, and Argyle Streets in Fitzroy. In summary the proposal incorporates 152 dwellings, one studio office, which is capable of conversion to up to three dwellings, and two small restaurants (cafes), one each at the two street corners addressed by the site. These proposed land uses are located within four connected buildings ranging in height from 3 to 8 storeys (including mezzanines). The proposed architecture is striking and contemporary, and incorporates within it two important corner elements, one at the intersection of Kerr and Napier Streets and the other at the intersection of Young and Argyle Streets. These buildings sit above a basement car park which contains 224 car spaces, bicycle car parking, and storage facilities. Access to the basement car park is via a two way ramp onto Kerr Street. A more detailed description of the proposal extracted from Mr Barlow's witness statement, is attachment 1 to this decision.

7. The subject land falls within a mixed use zone, and is affected by heritage and environmental audit overlays. In this application for review, Melbourne 2030, and the Planning Policy Framework as set out in the Yarra Planning Scheme, have been important in exercising the discretion found in the zone and in the overlays.

8. In relation to the Metropolitan strategy Melbourne 2030, the strategy is sub-titled "Planning for Sustainable Growth". The Key Directions and policies of the strategy seek to develop a city which is sustainable both in its function and in its form. The parties focused their submissions onto Key Directions 1, 2 and 5 as set out in the strategy documents. These directions and associated policies can be summarized as follows:

i. A more compact city - identifies population/housing growth over the next 30 year period of 1 million persons and 620,000 households, a significant proportion of which must be located in or near to activity centres and strategic development sites (both Brunswick and Smith Streets are major activity centers).

ii. A better management of urban growth - establishes an urban growth boundary, to mandatorily contain the growth of the city at its periphery.

iii. A great place to be - promotes good urban design and the protection of neighbourhood character and heritage places.

9. The State and Local Planning Policy Frameworks relevant to this application are complex and are set out in considerable detail in the submissions and evidence presented to the Tribunal. For the sake of brevity we think that this complex web of policies can be synthesized as follows:

i. The consolidation of new development within existing urban areas, the provision of more diverse housing forms, and the encouragement of new residential development in close proximity to public transport and other urban infrastructure.

ii. The achievement of a sustainable reversal of population decline in the City of Yarra.

iii. The promotion of mixed use zones and defunct industrial sites as opportunities for new residential development.

iv. The protection of neighbourhood character and heritage significance, and in particular the preservation of the prevailing nineteenth century and low rise character of the municipality.

v. The encouragement of innovative contemporary architecture, and the avoidance of reproduction architecture.

10. Melbourne 2030 is the most recent high level strategic policy statement relevant to the current proposal. As acknowledged by Mr Barlow the strategies set out in Melbourne 2030 are essentially similar to those found in the current Planning Policy Framework. . This is unsurprising given that metropolitan planning has been implemented in Melbourne since the early 1950s and metropolitan planning is of its nature evolutionary rather than revolutionary. However, an important difference in Melbourne 2030 is the express adoption of population and household growth projections, and the related spatial or locational policies in respect of the supply of new dwellings in response to these projections.

11. Mr Pitt argued in relation to housing/population policy as expressed in Melbourne 2030, that this "big picture" can no longer be treated as merely being a background to decision making, and that it directly relates to how one applies other aspects of planning policy, including those relating to the preservation of places of heritage significance. Mr Pitt said:

"Whilst the Council has, responsibly, acknowledged that the proposal responds to policies of urban consolidation there is, it is submitted, only lip service to the imperative of those policies highlighted by the most recent State policy embodied in Melbourne 2030.

Melbourne 2030 establishes a boundary for urban development in Melbourne for the next 27 years that is to be capable of being varied only by a resolution of both Houses of Parliament.

In areas lying within 400 metres of designated major activity centres what is required is in excess of an additional 250,000 dwellings, or on average 2,450 dwellings each.

It has been estimated that the additional number of dwellings forecast to be required by State policy embodied in Melbourne 2030 is the equivalent of 4,000 seven storey apartment blocks or 36 times the residential capacity of Docklands.

Simply put, the treating of the big picture as merely background rather than a fundamental consideration for decisions in relation to specific sites is no longer an acceptable form of analysis.

The question that needs to be asked is "If the required additional number of dwellings are not to be provided on this site in a Mixed Use Zone then where are they going to be provided in proximity to the facilities offered by the two adjoining major activity centres and the availability of public transport?".

The Council and objectors have presented a focus on heritage policy but that focus needs to be seen in the light of the role of policy and the balance of applicable State and local policies."

12. Mr Rantino and Ms Foley on the other hand argued that Melbourne 2030 does not imply that any particular priority should be given to the Key Directions relating to housing policy vis-à-vis other Key Directions, or that there should be a change to the way in which competing policy objectives are balanced as a consequence of the adoption of Melbourne 2030. Mr Barlow agreed under cross examination that Melbourne 2030 does not include any provision that requires that any key direction or directions is to be given priority over other Key Directions. Ms Foley said in relation to this:

"It is submitted that it is simplistic to suggest that because increased density is a policy objective that in all other considerations should be subsumed by this objective.

The imperatives of residential policy do not outweigh the heritage objectives of those relating to urban design and it is within this context that the proposal should be assessed."

13. We agree that there is nothing in Melbourne 2030 to suggest that priority should be given to the population/housing related objectives over and above other objectives. However, the adoption of population/housing projections and particular locational strategies for the provision of housing in response to these projections over the next 30 years, has the laudable effect of defining the extent of change required to house the population of our city in accordance with these projections for growth. Providing housing in accordance with the locational strategies of Melbourne 2030 is going to be a very difficult task, an issue alluded to by Mr Holdsworth in his evidence under cross examination, referring to some preliminary analyses underway in the City of Port Phillip.

14. Therefore while Melbourne 2030 does not provide any particular priority in favour of its housing related directions and policies, and while as a consequence it remains necessary in a each case to strike a balance between competing policy objectives including those relating to neighbourhood character and heritage significance, we are nevertheless of the view that the introduction of Melbourne 2030 does have an effect on how these competing policies should be assessed on a case by case basis. If one thinks about the task of planning for the provision of housing for the population of a city over time words that might spring to mind include fundamental, inevitable, unavoidable, essential. While similar epithets can be applied to other key directions and policies in Melbourne 2030, the fact that these epithets can be associated with housing related policies of the strategy must affect the balance to be struck between competing directions and policies in each case.

15. An example of this issue, in this case, is the different approaches to the issue of building height. It is said in favour of the application, that the higher elements of the proposed buildings respond positively to the existence of higher buildings within the immediate environs of the site, mainly former industrial buildings, many of which have been adapted and extended for residential use, and the variation in scale more generally evident throughout South Fitzroy. It is said against the proposal that the proper approach to new development within an established heritage area is for the newer buildings to respect the prevailing scale and character within the area, and that not only are the taller elements proposed inconsistent with the prevailing character of the locality, they also detract from the significance of the taller buildings that historically exist in the area. It seems to us that both these propositions are arguable, and that the preferred position is perhaps discerned by reference to Melbourne 2030.

16. In relation to housing policy it might be said that an alternative would be to constrain growth in the number of households, in order to limit the extent of change within the existing urban area by redirecting growth to locations elsewhere in the State or within the nation. The reality is that this is not the policy being pursued by Melbourne 2030. It could also be argued that the population and housing projections contained within Melbourne 2030 might in time prove to be incorrect, but in our view the absence of certainty is not a justification for a failure to plan for the future, and in any event this issue is acknowledged by the intention to review Melbourne 2030 over its 30 year lifespan. It is Melbourne 2030 as it now exists which must be considered by us in reaching a decision. On this note we now turn to a discussion of heritage significance and neighbourhood character.

17. It is our intention to discuss the issues of heritage significance, neighbourhood character, and urban design as a single topic, because we agree with Mr Raworth's submission. He said that ultimately the heritage issue comes down to a consideration of the character of the area, an essentially similar consideration as that appropriate to the issues of neighbourhood character and urban design. We believe this approach is justified because:-

* We agree with the expert evidence before the Tribunal, which concludes that number 300 Young Street is of limited significance, because of its alteration and isolation, and that it would not be unreasonable to demolish this building provided that the replacement building was acceptable; and

* The one and two storey Victorian dwellings abutting the subject land to the south-east, do present a special case, because from some vantage points these buildings would be appreciated against the backdrop of the very much larger buildings proposed. Nevertheless, the existing situation is that these dwellings adjoin larger industrial buildings, and the juxtaposition of modest dwellings against much larger buildings is not uncommon in the locality. Therefore the issue of whether or not the proposed development is acceptable as a consequence of its impact on these adjoining dwellings, primarily relates to the question of whether or not the building is acceptable in the broader neighbourhood context.

18. In many respects the principal issue in this appeal is the question of whether or not the proposed building responds appropriately to its urban context. The different opinions expressed at the hearing primarily relate to, differences in the various assessments of urban character, the extent of the area to be considered in forming an opinion about urban character, and the appropriate response to the urban character assessment.

19. Mr Ivan Rijavec undertook a very comprehensive urban character study as part of the planning/application process. The study was based primarily on an extensive photographic survey across much of South Fitzroy. Mr Rijavec decided that the diversity of this place is such that its character can be described as "urban jazz", Mr Rijavec concluded in part:

"Subsequent to the completion of these studies, we arrived at the conclusion that, diversity of both scale and architectural type in South Fitzroy, was in fact, the Urban Typology of the precinct. This typology applies generally with the exception of Smith and Brunswick Streets, where period and scale were the principle differentiating factors, rather than type.

These surveys posed fundamental questions as to how an appropriate contemporary response to this diverse character may be developed. Once subdivided, this site would be "fossilized" for the foreseeable future and it is important therefore that development on the site meets the demands of at least this century."

"We have suggested the term, "Urban Jazz", to describe the diversity of South Fitzroy's character. Like "Fitzroy Chic", Jazz was at first considered to be low brow, an assault against morality and order and it took more than a half century to fully appreciation of the vitality of the free spirited principles which underpinned both the genesis of Jazz and the development our eclectic inner urban environments.

"The survey demonstrates that South Fitzroy could be described as a "free-style" urbanism, or an "architectural multiculturalism" which assimilates a variety of scales and architectural types in a diverse urban landscape.

This is a "new world" typography, spirited, un-authoritarian, distinctly Australian."

20. Messrs Lewis, Holdsworth and Milner on the other hand argued that Mr Rijavec's assessment cast too wide a net. These witnesses focused more closely on the immediate environs of the site, emphasising the predominant scale of the nineteenth century residential streetscapes near the site. Mr Lewis in particular considered it very important that the development should respond more sensitively to the one and two storey Victorian residential streetscapes surrounding the site. This emphasis on the grain and rhythm of nineteenth century residential streetscapes is evident in the following extract from Mr Lewis' statement of evidence:

"This proposal will visually dominate this very significant precinct with respect to excessive height, inadequate setbacks for upper levels, and building design, massing and forms.

This proposal is completely unacceptable within this significant heritage context.

This is a development based on new and totally intrusive buildings, set among low-rise streetscapes of significant houses, many dating from the gold rush era. These include bluestone houses, a material relatively unusual for housing in Melbourne. The juxtaposition of the 4, 5 and 7 level scale with these streetscapes is unacceptable, as the majority of houses in them are single storey."

21. It was also argued that the applicant's reliance on the presence of taller structures in the immediate locality, and in the area generally "principally the MacRobertsons' factory buildings now converted to residential use" was inappropriate in part because they did not constitute the predominant scale, and in part because it was argued that modern buildings on a similar scale would detract from their historic significance. In the following extract Mr Holdsworth discusses the project in relation to these taller buildings:

"The "Napier" building is the most contentious element of the proposal. Not only does it rise to a height above the footpath of about 23.7 metres, but it contravenes another key policy objective, namely "to ensure that new development respects the scale, height and setbacks of streetscapes of cultural heritage significance."

This is a major departure from policy and disregards one of the key aspects of the built form of South Fitzroy; namely the historic and cultural importance in the urban landscape of those few commercial buildings that broached the general roofscape of one and two storey buildings.

These prominent hallmarks of Melbourne's manufacturing and commercial pre-eminence is nowhere as evident as in the urban vistas of Collingwood and Fitzroy. The architect's Urban Character Study identifies these and highlights their relative rarity. A century ago, view across the rooftops of South Fitzroy would have picked out only the Fitzroy Town Hall and several church spires other than these multi-level warehouses.

While the architect has cited a number of recent apartment developments as a rationale for the proposed scheme, the existence of these buildings that exceed the predominant low-rise built form is not considered to be a precedent for the situation to be repeated."

22. It is considered that Mr Rijavec's approach, that is to consider the broader area, is to be preferred over that advocated by the other witnesses. Mr Milner argued under cross examination that the assessment of character is not simply one for experts, but it is the appreciation and perceptions of the community which is also of importance. We think this is an acceptable proposition. However, we are not concerned about the assessment of a person teleported to the intersection of Argyle and Napier Streets, without any broader understanding of the broader neighbourhood context, rather we are concerned about the perceptions of persons resident in the area for a sufficient time to have a broader memory of the place. A perception of the place based on a knowledge of the area as a whole rather than a limited segment of the place.

23. This is not to say that the immediate context is not also of importance, but the immediate context would only be the sole consideration if there was something about the immediate context which set it apart from the broader neighbourhood. However, if it is necessary to consider a more local sub set of the South Fitzroy Precinct, there is in our view an identifiable sub precinct which includes the subject land. It is the land bound by Johnson, Smith, Rose and Brunswick Streets. The character of this area is informed by the various waves of industrial redevelopment and more recently by the adaptation of industrial buildings for residential purposes, together new infill residential buildings which in architecture and form have primarily responded to the industrial development of the area. While the predominant scale is one to three storeys, there are a significant number of larger buildings, most of which have been adapted and extended for residential purposes, which in scale terms are the equivalent of 6 to 11 modern residential storeys. In a sense one need go no further a-field than this sub precinct to find a model for the scale of development proposed in this case.

24. To resolve the issue of whether or not the redevelopment of this large site should respond to the fine grain low scale pattern of the nineteenth century housing in the area, or the larger scale taller pattern of development evident in the industrial development in the area, it is worthwhile considering the character of the streets onto which this site fronts.

25. Kerr, Young and Argyle Streets all have streetscapes which could be described as being modified industrial streetscapes dominated by the historic development of properties on these streets for industrial purposes over most of the twentieth century. Many of the former industrial buildings have been extended and adapted for residential use, and much of the newer infill residential development has adopted the patterns of development evident in the modified industrial buildings. There remain pockets of nineteenth century residential development in these streets, but they do not predominate.

26. Napier Street has, on the other hand, a largely intact fine grained low scale nineteenth century residential streetscape. Nevertheless an important break within the streetscape occurs at Kerr Street where the modified industrial streetscape of Kerr Street in effect occupies three of the four corners of that intersection, including the south western corner, that is the subject site.

27. As one moves along the streets, and in the area generally, the observer is constantly aware of the presence of the taller buildings which are seen across the roofs of single storey dwellings, or glimpsed as one passes a crossing street etc. Indeed, two of these taller buildings exist on Kerr and Argyle Streets, a short distance north-east and south-west of the subject land respectively.

28. We are of the view that this pattern of development evident in the neighbourhood and on the abutting streets supports the redevelopment of this site with larger buildings occupying substantial frontages and with taller elements, preferably at corner locations. In relation to Napier Street the proposed development does not essentially change the pattern of that streetscape, and in our view does not fundamentally change its character. This conclusion reinforces the view already expressed that juxtaposition of the bluestone cottages and other modest Victorian dwellings abutting the subject land to the south-east with the very much larger buildings proposed does not essentially change their character, or their heritage significance. Rather this juxtaposition will be a newer example of the diverse pattern of development which is a characteristic of the locality.

29. Mr Lewis was particularly critical of what he described as being the relatively unarticulated presentation of the building to Kerr Street, extending as it does over a distance of some 75 metres. We are sure that Mr Rijavec would argue that Mr Lewis' criticism misinterprets the design and its proposed complex patterning of forms and materials across this facade. Nevertheless, we would also observe that even if it is true that the proposed Kerr Street facade below the "mansard form of the corner element", intended to rely on an entirely repetitive mix of materials and architectural detail, that this is in itself an architectural response to be found in the area, particularly in some of the older industrial buildings around the intersection of Kerr and Gore Streets.

30. The architecture of the proposal is uncompromisingly modern. The design is said to be a twentyfirst century response to the provision of medium density housing. It was an aspect of Mr Pitt's submission, severely criticized by his opponents, that the architectural quality of this proposal is such that future generations would regard it as an important aspect of the heritage character of the area. It must be said that Mr Raworth under cross examination observed that while a building built today may indeed be an important aspect of the heritage of the area at some future date, it was a difficult matter to determine prospectively. Nevertheless, Mr Pitt argued that the architectural quality of this building was of importance and significant to our decision, and that in this regard we should be informed by Clause 19 of the planning scheme, particularly as it relates to heritage and architectural quality, the relevant extracts of Clause 19 are set out below:

Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

For development proposals for non-residential development or residential development not covered by Clause 54, Clause 55 or Clause 56, planning and responsible authorities must have regard to the following design principles:

New development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations.

New development should aspire to the high standards in architecture and urban design."

31. Mr Pitt called five architectural witnesses, the design architect, the conservation consultant, two architectural historians, and another architect who practises and lectures in Melbourne. These witnesses gave the Tribunal some understanding of the history of architecture in Melbourne, the development of modern architecture in Melbourne over the last decade or so, Mr Rijavec's contribution to modern architecture, and how all these things relate to architecture elsewhere in Australia and in the world generally. We accept that to the extent that it is possible to judge such a matter at this stage, that the architecture proposed in this case, from an aesthetic perspective, is of a very high standard indeed. We also believe that the quality of this architecture is relevant to the decision which must be made in this case.

32. Mr Rantino argued that architecture of this standard is inevitably architecture which draws attention to itself and will for sometime be seen as being at the very least unusual if not controversial. It was his argument that such a building was inappropriate in a heritage place, and that its brashness would in a sense detract from the significance of the place. While we accept that there may be some circumstances in which such a criticism would be valid, in our view it is not applicable to the present circumstances. In this case we have a modern building which will be distinctive and unusual but one which in a very considered way responds to the diverse character, the urban jazz, of Fitzroy. This is not to say that the building will not, initially least, challenge people's perceptions of good and bad design in the context of Fitzroy, but the care with which this building responds to its context suggests that Mr Pitt's prediction of its future value may be realised.

33. An example of this care taken with the context of the locality is the proposed corner cafes. Mr O'Dwyer in his evidence produced a slide entitled "Precincts Ecosystem Of Corner Beverage Outlets". The slide contained four images, two of local hotels, one of the café which exists on the north western corner of Kerr and Napier Streets, and one being the perspective rendering of the development and one of its cafes at the intersection of Young and Argyle Streets. This slide in our minds expressively demonstrates how the design has responded to its context both in terms of land use and architectural form.

34. These cafes were of concern to the Responsible Authority and objectors. Their primary concern related to the amenity implications of the cafes, such as car parking and noise, associated with such a land use in such a location. While this may have been a more valid concern in the original proposal these cafes are now so small, that it is likely that their function will be purely local in nature, and that as a consequence they will enhance rather than detract from the amenity of the locality.

35. There was considerable concern expressed about the car parking and traffic implications of the proposed development. It was argued that the existing levels of traffic congestion and parking demand militated against a redevelopment of this intensity. We ask the rhetorical question, what can be said to constitute sustainable urban development if it is concluded that a large under utilised site cannot be developed in a more intensive way because of its alleged impacts on traffic and car parking when the site is located immediately adjacent to a major activity centre, within walking distance of the CAD, and within a public transport rich environment,. How are the aims of Melbourne 2030 to achieve a more sustainable urban form capable of relying on public transport to be realised?

36. We make the following observations in relation to the more explicit submissions in this regard:

* The parties accepted that there was a very high level of demand for on-street car parking, consequentially the car parking required by the proposed development is provided on site and we accept Mr Fairlie's estimates in this regard. Indeed we think his allowance for the proposed cafes to be conservative, and we point out that it would be at least arguable that only staff car parking should be provided for these locally based uses.

* The proposal is of a scale such that it will be a moderately significant generator of traffic. Access to on-site basement car parking is from Kerr Street, a very wide, relatively lightly trafficked street, and the proposed traffic generation is well within its capacity.

* In our view the proposed basement ramp is located in the best possible and least sensitive location. Kerr Street is the most appropriate street for access to the site, the ramp is a sufficient distance from the intersection of Young Street and Kerr Street, and the ground floor of the building adjoining the site and the ramp, to the west is to be used for a commercial purpose. We also accept Mr. Fairlie's opinion in relation to the adequacy of the proposed ramp design, including its grades.

* A number of residents made submissions about the difficulty of entering and leaving the area particularly to and from Johnson Street and Brunswick Street. In our view many of the difficulties alluded to arise from the particular traffic management scheme in place, to reduce traffic flows within the residential area bounded by these arterial roads. It is unlikely that the proposal will result in any significant change to existing conditions in this regard and in any event there are many traffic management techniques available to the municipality to ease access to and from the surrounding arterial road network if it is thought to be desirable.

37. The subject land has only a direct interface with a small number of residential properties located in the south-eastern corner of the street block within which the site is located. The separation distance from the land to sites across adjoining streets, and the characteristics of those sites themselves, generally means that there are no unreasonable amenity impacts on other sites.

38. In relation to the adjoining dwellings, the designer has gone to considerable lengths to ensure that ResCode standards in respect of overshadowing and overlooking are achieved. Therefore in respect of direct amenity effects we are left with the question of whether or not the effect of these larger buildings on the outlook from these dwellings, or the effect of overshadowing during the winter months, is so significant as to warrant modification or refusal of the proposal. Having reached the conclusion that we have in respect of neighbourhood and heritage character of the locality, we are of the view that while the proposal will result in a significant change in outlook from these residential properties, the change does not go beyond what one could reasonably expect in this locality, having regard to the Planning Policy Framework. In relation to winter overshadowing, Mr Barlow's evidence demonstrated that the very small areas not shadowed during the winter months would be overshadowed by the proposal. However, it is of relevance that ResCode sets its standards at the equinox. It is difficult to see how more intensive urban development, like that required by Melbourne 2030 to achieve its Key Directions, would be achievable if a higher standard than that required by ResCode was to be required in a context such as this. We do not think that the effect is sufficient to warrant refusal of this proposal.

39. Mr Milner made various criticisms of the proposal in relation to internal amenity. Mr Barlow in his evidence proposed a number of relatively minor changes to address some internal amenity concerns, which may result in the loss of one or two dwellings. Many of the criticisms are simply a reflection of the intense and highly urban form of the development. It is our overall view that an appropriate outcome has been achieved in this case having regard to the extent to which competing design considerations must be balanced in any development, particularly in a location such as this where streetscape/neighbourhood character considerations are of great importance.

40. Notwithstanding the inevitable compromise in design discussed above, environmentally sustainable design principles have been a factor in the overall design addressing such matters as:

* Facilitation of the acquisition of 5 star refrigerators by future occupants;

41. Having regard to all these matters it is our conclusion that

s The planning policy context supports an intensive redevelopment of the site for mixed use, primarily residential purposes, provided that the proposed redevelopment responds appropriately to the heritage significance and neighbourhood character of the locality.

s The proposed site is a very large site set in a diverse urban context in which modified industrial streetscapes are predominant, although modest fine grain nineteenth century residential streetscapes are also significant.

s The proposed redevelopment in our view responds appropriately to the heritage significance and neighbourhood character of the locality and does so with a building which is an example of very high quality contemporary architecture.

s Notwithstanding the scale and intensely urban character of the proposal, the proposal will not result in any unreasonable off site amenity impacts, and provides an entirely acceptable standard of amenity for future residents.

s We are of the view that in time the proposed buildings will be seen to enhance the character of the neighbourhood.

The following extract from Mr. Michael Barlow's Statement of Evidence describes the proposal before the Tribunal in some detail:

The demolition of the existing buildings located on the site including:

s The double storey office building on the corner of Kerr and Napier Street

s The industrial warehouse building facing Kerr Street

s The single storey double fronted dwelling facing Young Street

s The double storey commercial building fronting Argyle Street.

Construction of a residential apartment building comprising the following:

s In height from 3-8 levels including mezzanine level.

s Two basement levels of car park with access from Kerr Street.

s Maximum building height of 24 metres at the corner of Napier and Kerr Streets.

s Pedestrian access will be available from each street frontage.

s Two large courtyard areas will be provided inside the development.

s A green landscaped setback edge will be provided at ground level around each frontage of the development.

s The proposal will comprise two key architectural elements located on the north-east and south-west corners of the site. The elements are commonly referred to as the spaceship and cloud (or cheese grater) features of the development.

The following materials will be integrated into the design of the building:

s Construction of 224 car spaces on the two basement levels with access from Kerr Street.

s The provision of 114 individual storage lockers of between 3 and 7 square metres.

The following is a schedule of accommodation for the proposed development:

Napier Street (corner Napier and Kerr Streets, entrance off Napier Street)

Kerr Street (Kerr Street, entrance off Kerr Street)

Young Street (Corner of Young and Argyle Streets, entrance off Young Street)

Argyle Street (Argyle Street, entrance off Argyle Street)

Each of the apartments will have balcony/terrace areas. The size of the space varies in the

development depending on the size of the apartment.

s The provision of two cafes. A cafe will be provided fronting Kerr Street with a floor area of 79 m2 and seating capacity for 29 patrons. A second café will be located on the corner of Young and Argyle Streets with a floor area of 46 m 2 and a seating capacity of 23 patrons.

s A studio/office in the south-west corner of the building.

s The following comprises a brief synopsis of changes incorporated in the NKYA (a) proposal.

s Ground floor title changes from commercial and hospitality to residential use.

s Ground floor has been set back by approximately 1200mm from the street, providing a landscape strip around the entire boundary between public and private areas.

s Two small cafes retained on the Napier, Kerr and Argyle Street corners.

s Car parking reduced as a consequence of the above from 265 to 224 spaces.

s Storage lockers in basement increase from 74 to 114.

s Napier/Kerr and Argyle/Young corners reduced in scale by one storey.

s Entrance ways to apartments increased in scale to achieve level volumes.

s Projections have been removed from the southern laneway access to Argyle Square.