Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit. Mixed uses (restaurant and dwelling and home offices) in a 6 and 7 storey building. Business 2 zone, Design and Development Overlay (DDO5 - High St Corridor view Protection). Special Building Overlay. Development Contributions Plan Overlay. Clause 52.06 Car Parking. Clause 52.07 Loading And Unloading Of Vehicles. Clause 52.27 Licensed Premises. Clause 52.29 Land Adjacent To A Road Zone, Category 1. Corner Irregular Site (Frontages, High Street 38.1 metres Gladstone Avenue 33.5 metres, Area 1277.5 square metres). State and Local Planning Policy Framework. Zone Purposes. Urban Design. Streetscape. Back yard amenity. Privacy. Car parking, Traffic.

Bay Crown Pty Ltd v Darebin CC [2006] VCAT 2313

The decision of the responsible authority in permit application D/122/2006 is set aside. A permit is granted in relation to land at 469-481 High Street, Northcote. The permit will allow the construction of a building and the use of the land for the purposes of dwellings and restaurant (cafe), and associated permissions in relation to a reduction in car parking spaces and a waiver of loading bays, generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans identified as 0341/TP03a, 0341/TP04a, 0341/TP05a, 0341/TP06a, 0341/TP07c, 0341/TP08c, 0341/TP09c, 0341/TP10c, 0341/TP11c, 0341/TP12c, 0341/TP15c and 0341/TP18c, prepared by Clarke Hopkins Clarke, but modified to show:

(a)

The reductions to the height and massing of the proposed building that would generally result from the deletion of fourth floor , the modification of fifth floor (the new fourth floor) by the deletion of dwelling 5.14, and the modification sixth floor (the new fifth floor) by the deletion of dwelling 6.4;

(b)

The modifications to the architecture of the High Street façade which would result from:

(i)

Framing/redesigning the balustrades of the balconies at first, second and third floors (more particularly the transparent balconies at the second and third floors) so that they have sufficient visual weight to define a street wall (and to emphasise the vertical articulation of the building), and;

(ii)

Reducing the visual weight of the upper level framing elements at new fourth floor while at the same time retaining the essentially transparent character of the balcony at this level so that the wall of the building, set back 2.5 metres from High Street, becomes the most prominent building element;

(c)

The modifications to the architecture of the western façade which would result from:

(i)

Reducing the visual weight of the upper level framing elements at new fourth floor, and;

(ii)

Making the balcony balustrades translucent to a height of 1.1 metres above balcony floor level;

(d)

Measures to secure car parking at ground level;

(e)

Any modifications necessary to satisfy the requirements of Melbourne Water conditions;

(f)

Noise attenuation measures required to protect the internal amenity of the permitted dwellings from external noise sources including intrusive road noise having regard to Australian Standard

AS/NZS 2107:2000 "Recommended Design Sound Levels and Reverberation Times for Building Interiors";

(g)

No part of the building (including balconies) extending beyond the property boundaries;

(h)

Modifications to the provision of car parking spaces and bicycle parking spaces arising from the reduction in the size of the building (car parking spaces should be provided generally in accordance with the rates adopted by Mr Donald Robertson of the Traffix Group in Table 3 of his Statement of Evidence to the Victorian Civil And Administrative Tribunal in application P1537/2006);

(i)

The allocation of car parking spaces and bicycle parking spaces (each apartment is to be provided with a minimum of one car parking space);

(j)

The design and location of car parking direction, car parking allocation signs and Bicycle parking signs where such signs are reasonably required for the benefit of users of the building;

(k)

The provision of lighting to the car parking areas and associated access ways, including the provision of lighting to illuminate that section of the Right of Way which adjoins the development;

(l)

The allocation of storage spaces (each apartment is to be provided with a minimum of one storage space);

(m)

The design and location of any air-conditioning plant (or similar), external to the building, and any associated screening to achieve integration with the architecture of the building and avoid unreasonable visual prominence;

(n)

The design and location of plant and exhaust outlets associated with the operation of the restaurant use and with the ventilation of the car parking areas for the protection of residential amenity, in particular that of dwellings in the permitted building;

(o)

A comprehensive schedule of external materials, colours and finishes (including colour samples). Construction materials are to be low maintenance. External materials and finishes (including glazing) are to be of a low reflectivity level;

(p)

The provision of either a landscaping strip or kerb for a length of 2.64m directly north of the entrance to the basement car park and on the south side of the car parking allocated to "Office".

When approved, the plans will be endorsed and form part of this Permit.

2 The use and/or development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

3 Except with the further consent of the responsible authority the permitted cafe may operate only between the hours of 7.00am to 11.00pm on any day.

4 Before the development commences plans:

(a)

detailing the construction and surfacing (to the satisfaction of the Responsible Authority) of that section of the adjoining Right-of-Way, commencing from the crossover in Gladstone Avenue and extending to the southern side of the vehicular entry to the basement car park;

(b)

the provision of 5 bicycle parking spaces within the public realm adjacent to the land;

must be submitted to, and approved in writing by, the Responsible Authority.

5 Before any part of the development is occupied, the works shown on the approved plans referred to in condition 4 must be completed at no cost to, and to the satisfaction of, the Responsible Authority.

6 Before the development commences, an Environmentally Sustainable Development Management Plan (ESD Management Plan), prepared by a suitably qualified person, must be submitted to, and approved in writing by, the Responsible Authority.

The ESD Management Plan must be to the satisfaction of the Responsible Authority and must address the following:

(a)

Energy Management;

(b)

Water Conservation and Re-use;

(c)

Demolition and Construction Waste Management.

Where appropriate, the ESD Management Plan should:

(a)

Demonstrate that the plan has achieved an appropriate balance between the planning scheme policies encouraging environmentally sustainable out comes and other planning policies including those in relation to affordable housing;

(b)

Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards;

(c)

Document the means by which the appropriate target or performance will be achieved;

(d)

Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring;

(e)

Demonstrate that the design elements, technologies and operational practices that comprise the ESD Management Plan can be maintained over time.

The approved ESD Management Plan must be implemented to the satisfaction of the Responsible Authority.

7 Before the development commences, a detailed drainage plan must be submitted to, and approved in writing by, the Responsible Authority. The drainage plan must be to the satisfaction of the Responsible Authority and must address:

(a)

the need for on-site stormwater detention or retention and reuse.

(b)

the scope for on-site stormwater infiltration.

8 The land must be drained to the satisfaction of the Responsible Authority and all drainage works completed in accordance with the approved drainage plan and connected to a legal point of discharge prior to occupation of any part of the development and to the satisfaction of the Responsible Authority.

9 Before the development commences the Development Infrastructure Levy must be paid to the Responsible Authority in accordance with the provisions of the approved Development Contributions Plan.

10 Except with the written consent of the Responsible Authority the development must be constructed and finished under the supervision of the design architects, Clarke Hopkins Clarke.

11 Before the development commences a waste management plan (and, if appropriate, documentation) must be submitted to the Responsible Authority for approval. Such plan must provide details of garbage and recycling collection service to each of the dwellings, home offices, Manager's residence and restaurant on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing the bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. The plan must require that collection be undertaken by a private contractor. Once approved, such plan will be endorsed to form part of this permit.

12 All bins and receptacles must be screened from view and be maintained in a clean and tidy condition, and free from offensive odour, to the satisfaction of the Responsible Authority.

13 Before any part of the development is occupied, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(a)

Constructed;

(b)

Line-marked to indicate each car space and all access lanes;

(c)

Clearly marked to show the direction of traffic along the access lanes and driveways;

to the satisfaction of the responsible authority.

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose other than the parking or movement of vehicles to the satisfaction of the Responsible Authority.

14 The amenity of the area must not be adversely affected by the use or development as a result of the:

(a)

transport of materials, goods or commodities to or from the land; and/or

(b)

appearance of any building, works, stored goods or materials; and/or

(c)

emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or

to the satisfaction of the Responsible Authority.

15 Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.

16 Before any part of the development is occupied, a Green Travel Plan for the development must be prepared to the satisfaction of the Responsible Authority.

The Green Travel Plan must promote the use of alternative forms of transport to cars, such as bicycles, public transport and walking, and must be provided to all residents and occupants of the development.

17 Remote control of the basement car park roller shutter door must be available from all dwellings within the development to facilitate access to the visitor car parking spaces for visitors to the dwellings development. An intercom system enabling visitors to identify themselves to residents of the development must be provided, with an intercom station/facility being provided in a location proximate to the entry to the car park to the satisfaction of the Responsible Authority.

18 All external lighting of the site or buildings must be located, directed and shielded and of such limited intensity to ensure no unreasonable detriment is caused to adjoining or nearby properties to the satisfaction of the Responsible Authority.

19 With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

20 No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s or so as to be visible from outside the site without the prior written consent of the Responsible Authority.

21 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

22 Finished floor levels of the ground floor area must be a minimum of 300mm above the applicable flood level.

23 Finished floor levels of the ground floor car parking area must be constructed with surface levels a minimum of 150mm above the applicable flood level.

24 All doors, windows, vents and openings to the basement car park must be a minimum of 300mm above the applicable flood level.

25 Any drainage system to the basement must be designed such that stormwater is unable to penetrate the basement.

26 The entry/exit driveway of the basement car parking must incorporate a flood proof apex of a minimum of 300mm above the applicable flood level.

27 Prior to the commencement of works, separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses.

(a)

The development is not commenced within two (2) years from the date of issue of this permit, or.

(b)

The development is not completed, or the use does not commence, within four (4) years from the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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.

Ms Michelle Quigley SC, instructed by Fulcrum Town Planners.

1 This is an application to review the decision of the responsible authority to refuse permission for mixed uses (restaurant and dwelling and home offices) in a 7 and 8 storey building at 469-481 High Street, Northcote. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The development does not comply with the planning policy framework of the Darebin Planning Scheme, in particular, Clause 22.08 (High Street Corridor Land Use and Urban Design) and Clause 22.10 (Residential and Mixed Use Development of Four Storeys or More).

2. The development does not comply with Clause 43.02, Schedule 5 (Design and Development Overlay - High Street Corridor View Protection) of the Darebin Planning Scheme.

3. The development will have an unacceptable impact on the amenity of the neighbouring residential area.

4. The development will have an unacceptable impact on the streetscapes of High Street and Gladstone Avenue.

5. Car parking provision for visitors to the dwellings is inadequate.

6. The design of the development does not provide for a satisfactory level of internal amenity for dwellings as there is an excessive reliance on borrowed light and ventilation for majority of bedrooms and an absence of private open space for the SOHO (Small Office/Home Office) units and the Manager's residence.

7. The development is not responsive to the site and its immediate surrounds, and will represent a dominant and intrusive built form within the broader context of the area.

2 At the commencement of the hearing Ms Quigley applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. The amendment primarily reduced the height of the building by one storey. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Ms Quigley's request.

3 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

4 During the course of the hearing there was considerable debate about the relevance of the existing permit for a six level building, and the associated decision of another division of this Tribunal, to the decision to be made in this matter. While we do not consider this earlier permit to be irrelevant, it has not been an important consideration in our decision.

5 The review site is located within the High Street Northcote Major Activity Centre at the south west corner of the intersection of Gladstone Avenue with High Street. The land is occupied by a three storey building formerly used as a bingo centre. Along High St neighbouring buildings are used for a variety of commercial and retail purposes. Some new mixed use development up to 5 storeys in height is evident. To the west, across the laneway and to the east between the High Street shopping strip and Northcote Plaza are established residential precincts in which modest single storey dwelling predominate. The All Nations Park is east of High Street behind Northcote Shopping Plaza. The land is very well served by the public transport network.

6 The proposal as described in the amending plans prepared by Clarke Hopkins Clarke showing:

•

A 6 and 7 storey building over basement levels accessed via a ramp from the rear laneway;

•

A café, a managers dwelling and office, five home offices and the foyer entry to dwellings above at ground floor level;

•

Ground floor tenancies being accessed from a raised colonnade[1] with stairs and ramps, to accommodate disabled access to the flood related level of the ground floor;

•

Above ground floor level there are 71 dwellings, 61 being one bedroom studio apartments[2];

•

The laneway being widened to 6 metres;

•

15 car spaces at ground floor level access directly from the laneway and 85 car spaces in the basement;

•

The architecture is contemporary with a modern palette of materials, the building form is complex but does not conform to the design prescriptions suggested by the policy framework.

7 The site is included within a Business 2 zone. Within this zone, a planning permit is required to use the land for a "dwelling"[3] and "food and drink premises" including a "restaurant". A planning permit would not be required to use the home offices for the purposes of a "home occupation".

8 A planning permit is required for buildings and works in the Business 2 zone.

9 The land is affected by three overlays. They are the:

•

Design and Development Overlay - Schedule 5 - "High Street Corridor View Protection" (DDO5);

•

Special Building Overlay (SBO); and

•

Development Contributions Plan Overlay (DCPO).

10 The provisions of the DDO5 are particularly important to our consideration of the central issues in this case and we will return shortly to this overlay in greater detail.

11 A planning permit is required to construct a building or carry out works under the DDO5 and SBO. The purpose of the SBO is to identify land subject to inundation from the urban drainage system, to consider and minimise the impacts of development upon flood characteristics and to protect water quality. Applications under the SBO require referral to Melbourne Water and this authority has no objection to this proposal subject to conditions.

12 Under the DCPO, a development contribution is required to be paid to Council in certain circumstances and its provisions did not provoke any debate amongst the parties.

13 The parties referred to various State policies[4] that are relevant to our consideration of this proposal and we have taken them into account. Amongst these is Clause 12, giving effect to Melbourne 2030. The site is located within the Northcote Major Activity Centre. Such centres are to have a mix of activities that generate a high number of trips as well as being well served by public transport. Major Activity Centres also have the potential to grow and support intensive housing developments without conflicting with surrounding land-uses. Like all centres, high quality urban design outcomes that positively respond to a site's particular context, are also promoted.

14 There are many locally based policies in the Darebin Planning Scheme for our consideration. Key amongst these are:[5]

•

Clause 22.03 - (Activity Centre Policy);

•

Clause 22.08 - (High Street Corridor Land Use and Urban Design); and

•

Clause 22.10 - (Residential and Mixed Use Development of Four or More Storeys).

•

Seek to strengthen the role and consolidate activity within activity centres;

•

Support a wide mix of economic, social and community facilities in major activity centres including high density housing,

•

Emphasise good urban design outcomes including the maintenance of active street frontages and the protection of residential amenity at the interface with commercial land;

•

Encourage high standards of design and finish for multi-level development.

16 Clause 22.08 is of particular relevance and we will discuss this and other relevant policies in more detail shortly.

17 The Planning Policy Framework and in particular the Urban Design Framework for High Street, upon which the more specific planning policies are based, support more intensive mixed use development on this part of the High Street spine. Consequentially the principal issue in this application for review is the appropriateness of this proposed mixed use building from an urban design perspective. In these reasons we intend to first discuss the implications of the planning policy framework, and the associated design and development overlay, on the assessment of an appropriate urban design response in this location. We then intend to discuss more specific building and urban design considerations in the light of this more policy based analysis.

Planning Policy Framework - Urban Design In High Street

18 In recent years, the Council has embarked upon a comprehensive strategic review which sets the direction for land use and urban design in the High Street corridor. This culminated in the preparation of the "High Street Study Urban Design Framework[6] in March 2005 ("the study"). This study has been given effect through the introduction of local planning policies, primarily Clause 22.08 ("the High Street policy") and the DDO5.

19 It is useful to set out the key elements of the High Street policy and the DDO5 before discussing the implications of these in our assessment of the application at hand.

20 The High Street policy has objectives that relevantly seek:

•

To protect key public views and vistas (1) from All Nations Park ...

•

To promote redevelopment of the internodal areas in High Street.

•

To protect the amenity of residential land adjacent to commercial land.

•

To improve the accessibility and amenity of High Street properties by progressively widening rear laneways.

•

...

21 Reflecting the study findings, the High Street policy refers to 16 precincts along the length of the corridor . A set of common design guidelines that apply to each precinct as well as guidelines that are specific to individual precincts are provided. The review site is within Precinct 7 - Croxton. This precinct is described in the High Street study as a "rundown internodal area". Such internodal areas are typically lacking in definition - functionally and in land use terms.

22 The High Street policy includes design guidelines for all precincts with suggested setbacks to High Street and at the interface with residential properties.

23 In essence, the residential interface setbacks are based on the extrapolation of the ResCode Standard B17. At the High Street frontage, the concept of a "street wall" is introduced, suggested at 8-10 metres with upper levels setback further at 1.5 metre increments per level.

24 For each precinct, as well as expressing preferred land use, design guidelines seek to manage building heights. These heights vary taking into account contextual considerations and the future role and function of precincts. In some areas building heights range from one additional storey (Westgarth Central) to 8 storeys at the Bell Street intersection where the creation of 'land-mark' high-rise buildings is envisaged.

25 Within the internodal area of Precinct 7, it is policy to encourage ground floor area with showrooms and office uses and residential uses primarily above and behind. Small scale retail uses are discouraged at ground level. Like the policy objectives, it is also policy to preserve existing views from All Nations Park hilltop and to ensure new development is designed to respect the amenity of adjoining residential properties.

26 Design Guidelines for Precinct 7 relevantly include the following:

Buildings not to exceed 5 storeys or the height of the existing building on the site (whichever is greater) with the maximum height determined by the maintenance of the view corridor to the horizon from All Nations Park hilltop.

•

are to be built to the front and side boundaries up to a height of between 8 and 10 metres above ground level, and then set back a minimum of 1.5 metres from the front building face per floor;

•

to include measures (such as contrasting external wall materials) to ensure any part of the building above and set back from the front wall is visually recessive.

27 The DDO5 also has design objectives that seek to retain and protect public views "from unreasonable encroachment by nearby buildings" from the All Nations Park hilltop to surrounding areas including the "sense of broad views to the horizon and openness in the All Nations Park".

28 There are buildings and works provisions which for this site include the following relevant statement:

Buildings should not exceed 12 metres in height unless it is shown that key views from the hilltop in All Nations Park to the west including Mt Macedon at its northern most extent and the sense of broad views to the horizon and openness in the park are maintained.

29 Importantly, we note that the reference to building height is not a mandatory height control. Indeed, within Precinct 7 of Council's High Street Policy, a 5 storey building could have an equivalent height of up to 16 metres[7]. Decision guidelines are provided under the DDO5 to assist in the exercise of discretion. They include a consideration of architectural quality, the impact on identified viewlines and vistas, the contribution the building makes to urban design and the streetscapes of the area.

30 We find that the High Street policy and the DDO5 provide clear, logical and unambiguous framework for land use and design outcomes in the High Street corridor. This framework is well conceived, has been developed with community consultation and underwent a process of review by an independent panel during the planning scheme amendment process (Amendment C47). The panel convened to hear submissions in relation to Amendment C47 supported the framework now present in the planning scheme. None of the planning or urban design witnesses questioned the general thrust of this framework although they differed on the degree of flexibility that ought to be allowed when applying the policy.

31 There is no dispute that site presents an important opportunity for redevelopment in an area eminently suited to an intense form of development. The site's locational attributes including its position within a major activity centre and proximity to the Principle Public Transport Network were however factors already considered by the Council when it developed its strategy for the corridor. These are not new circumstances. They do not in our view, warrant setting aside the current framework that we are required to consider. Moreover, the site is large, but there are no particular site characteristics which in our view justify considerable variation to the policy framework. We do accept that some flexibility exists when applying policy and indeed the DDO5 which does not prescribe mandatory height limits. The degree to which that flexibility exists is in the present case is however tempered by the strength of the existing framework which we find is clear and soundly based.

32 We therefore think it important that this proposal should endeavour to achieve a high level of consistency with the strategic intent of the High Street policy and DDO5. Decisions about land use and development that depart from the strategic outcomes sought and which might lead to an erosion of the carefully thought out strategies for the High Street corridor ought to be avoided.

33 We now turn to a consideration of the implications of this framework for the design response.

34 The urban design guidelines embodied in the planning scheme are not prescriptive but nevertheless envisage buildings with a maximum height of five storeys in this precinct. The proposed building is a six and seven storey building. Having considered the planning scheme, the submissions and inspected the site and locality we form the view that the overall height of the building should be reduced by one floor, and that there be some further reduction in the floor area of the upper most level. As a result the proposed building will be a predominantly five storey building with a relatively modest six storey element, emphasising, and defining the corner of the building at the intersection of High Street and Gladstone Street.

35 The policy framework provides that in this precinct buildings should not exceed five storeys. This is not a mandatory requirement, but we have concluded that this proposal should endeavour to achieve a high level of consistency with the policy framework. We think there were two particularly important considerations informing the urban design guidelines embodied in the planning scheme. They are the impact of new development in this part of High Street on the residential hinterland, and the impact of new development on the views obtainable from All Nations Park.

36 It is the residential amenity issue which has primarily influenced our decision to reduce the height of the building. In this part of High Street the nearby low scale fine grain residential areas immediately adjoin the High Street properties across a narrow laneway. A five storey building, however it is configured, is a very substantial change in scale from that of the abutting residential area. An abrupt change in scale. It seems to us that the development of the urban design framework in consultation with the local community, and the planning scheme amendment process, in essence defined how the planning scheme intends to resolve the inherent conflict between the important development opportunities which exist along the High Street corridor, and the protection of the amenity of the abutting residential properties.

37 The subject land is a very large site, but it is not for example unusually deep in the broader High Street context and therefore we can see no site specific justification for departing from the transition in height proposed by the planning scheme. The six storey corner element we propose to allow, will add to the drama of the building's architectural expression without significantly changing the overall perception of the building scale, when viewed from nearby residential properties. It is a technique endorsed by the responsible authority's urban designer.

38 Reducing the height of the building as we propose, will reduce the impact of the building when viewed from All Nations Park. It is arguable that the proposed reduction in height is of benefit to the views obtained from the park, but this was not a decisive factor in our consideration and decision. We note that the subject land, and other nearby sites in High Street appear as part of a prominent commercial foreground element (including Northcote Plaza) in this segment of the view. The proposed building merely adds to this existing foreground element and is just another aspect of the view to be obtained from All Nations Park, which includes the more open views available further to the north and east.

39 The urban design guidelines embodied within the planning scheme define a very specific approach to the design of buildings as they front onto High Street. In particular, they adopt a model of buildings with a street wall at the street boundary 8 to 10 metres high, with upper levels being setback to make them more recessive.

40 The proposal does not adopt this urban design solution. In the main the front façade of the building is setback from High Street, and above first floor level there are essentially transparent balconies, similar in design, extending into the front setback space at each level[8].

41 It was argued to us that the proposed architectural response to the front façade of the building, was an equally valid approach to the design of a building on this site, and was an example of very high quality architecture. In essence it is argued that the policies which encourage high quality contemporary architectural responses should in this instance outweigh the more specific design guidelines.

42 It is indeed arguable that the very detailed design guidelines within the scheme encourage formulaic responses and stifle creativity and innovation. Nevertheless, while we do not think that the scheme's design guidelines should be applied in an absolutely rigid way, we do not think they should be entirely disregarded and that therefore the proposed design should be modified to more closely reflect the intentions of the scheme. Indeed, in our opinion the existing architectural response can be modified in a relatively minor way to achieve the underlying objective of the scheme's design guidelines.

43 We think that the perception of a street wall, with recessive upper level elements can be achieved by:

i

Framing/redesigning the balustrades of the balconies at the first, second and third floors (more particularly the transparent balconies at the second and third floors)[9] so that they have sufficient visual weight to define a street wall (and to emphasise the vertical articulation of the building); and

ii

Reducing the visual weight of the upper level framing elements at fourth floor[10] while at the same time retaining the essential transparent character of the balcony at this level so that the wall of the building, set back 2.5 metres from High Street, becomes the most prominent building element.

44 We do not consider that the abandonment of this stepped approach to the façade for the corner element, represents a departure from the urban design approach broadly required by the scheme.

45 At ground floor the High Street façade of the building incorporates a colonnade approximately 3 metres wide which occupies a substantial proportion of this frontage of the site. The colonnade is slightly raised above footpath level. The colonnade incorporates steps and wheelchair access ramps and will be used as an outdoor dining area for the café proposed at the corner of Gladstone Street. The colonnade is essentially a design solution to the raised floor level required by the Special Building Overlay, and the need to provide disabled access to the multiple small tenancies proposed at ground floor level.

46 This particular element of the design was contentious, the Responsible Authority arguing that it failed to provide a sufficiently active street frontage.

47 It is undoubtedly true that the proposed land uses, in combination with the proposed colonnade, will result in a less "active" frontage than would be normal for core shopping precincts. This is not to say that this physical arrangement would not necessarily work within a shopping precinct, but there would be at least some risk that the vibrancy one hopes to achieve within a shopping precinct would not be achieved. However, this is not to say that it is an inactive frontage, the facades of each of the proposed tenancies is fully glazed, the colonnade doesn't obstruct views from the footpath to these glazed facades, and the colonnade itself will be active with the movement of people to and from the various tenancies, and in particular as a result of its use for the outdoor eating area of the café, and the movement of people to and from this café.

48 Ultimately we are of the view that the design proposes a ground floor façade fronting onto High Street which is appropriately active, for its planning context and the proposed land uses. The land is within a B2 zone, and the planning policies in respect of Precinct 7 discourage small scale retail uses at ground floor. This is not a context in which the vibrantly active frontages one would hope for in a core shopping precinct is necessary, even if it could be reasonably argued that the present design could not achieve such an outcome.

49 The Gladstone Street façade of the proposed building is essentially symmetrical, with the strong corner element proposed at the corner of High Street and Gladstone Street being repeated at the corner of Gladstone Street and the laneway to the rear of the subject building. While the desirability of this design solution, from an architectural perspective is understood, we think that the design outcome is very intrusive from the perspective of the adjoining residential street. In this instance we think that the staggered set back approach[11] contained within the scheme's urban design guidelines should be more closely adhered to in this western edge of the Gladstone Street façade.

50 Simplistically, what we propose is that fourth floor be deleted in its entirety and that fifth floor (the new fourth floor) should be modified by the deletion of dwelling 5.14, and sixth floor (the new fifth floor) should be modified by the deletion of dwelling 6.4[12].

51 The western, or laneway façade, behind the corner element discussed above is a simple vertical wall (although highly articulated by the architectural detailing of the proposed balconies). The deletion of one level from the building has the result that the overall height/setback of the western façade will closely comply with the scheme's urban design guidelines, but the staggered setback approach envisaged by the scheme at the lower levels is absent.[13] The western façade also employs the strong framing elements discussed in relation to the High Street façade[14]. As for the High Street façade we think the visual weight of the upper level framing elements at fourth floor should also be reduced on the western facade, so that the apparent set back of the building is increased.

52 We do not think that this is a serious omission. From a streetscape perspective the absence of the staggered set backs is significantly moderated by our approach to the changes to the Gladstone Street façade discussed above. In relation to the balance of the façade, views from the rear yards of adjoining properties, are essentially views to the upper levels of the building, across fences and outbuildings. From this perspective its unlikely that the visual impact of the five storey building would be moderated by bringing lower levels closer to the western boundary of the site. We also observe that the lower levels of the building achieve a spatial separation from residential properties greater than that envisaged by the High Street policy.

53 Another issue related to this façade of the building, is the implications of the proposed windows and balconies on the privacy of the adjoining residential area. We think it is significant to note that had this building been subject to ResCode, the ResCode privacy standards are satisfied. Nevertheless, we think that the glass balustrades should have a translucent finish, to a height of at least 1.1 metres above the balcony floor level. We think that this has two advantages, i.e.

i

Occupants of the proposed dwellings and associated balconies will be largely concealed from view, from ground level, unless they are standing at or near the edge of the balcony itself thus improving the perception of privacy both for nearby residents, and the occupants of these dwellings themselves, and;

ii

Objects on the balcony, air conditioners, bikes, chairs, are concealed from view avoiding the circumstances in which the practices of one or two occupants, can significantly detract from the overall appearance of the building.

54 There are three issues which arise from submissions in respect of car parking and traffic ie.

i

Respondent objectors were concerned about the adequacy of the on site car parking provision;

ii

Mr Robertson proposed a reduction in the number of on site spaces, and a change to the way in which they operate, a change not generally supported by council;

iii

Traffic management on the surrounding street network.

55 The proposal involves the provision of 100 on site car spaces, 85 car spaces within the basement, and the balance being directly accessed from the rear laneway. Application of the standard parking rates from the planning scheme, results in a requirement for 180 on site car spaces.

56 The proposal therefore involves a reduction in the required car parking of 80 car spaces. A number of the respondents argued that this was too large a reduction, and that if car parking continues to be reduced in the High Street corridor to this extent then a series car parking problem will arise. This criticism presumes that the simple application of the car parking rates in the scheme produces a realistic estimate of the likely car parking demand. This is not the case. The scheme provisions apply across the entire state, and the planning scheme recognises that a soundly based empirical assessment of car parking demand can in many instances produce a more reliable result. In our view Mr Robertson's assessment is an appropriate and realistic assessment. Therefore, we are satisfied that the proposed on site car parking provision is satisfactory for the proposed use.

57 A large proportion of the proposed car parking will be secured within the basement (and we will conclude later that the car parking off the laneway should also be secured) consequentially there will be some demand for on street car parking for customers and visitors, notwithstanding the availability of car parking on site. We are satisfied that there is sufficient car parking in very close proximity to the site, indeed largely along the boundaries of the site, for this purpose.

58 Mr Robertson was concerned about the security implications of the laneway car parking for car parking by residents and other occupants. He therefore proposed a minor reduction in the number of on site car spaces (because of his opinion as to the adequacy of on site car parking) and assigning eight car spaces accessible directly from the laneway, as full time visitor car spaces. This approach was opposed by the Responsible Authority, largely because of the associated reduction in on site car parking.

59 While we think that there is some merit in Mr Robertson's suggestion, ultimately we are of the view that the car parking arrangement proposed should be retained (subject to the changes to car parking provision which would flow from the changes we propose to the overall size of the building) however we are also of the opinion that the laneway car spaces should be secured.

60 We are satisfied that the additional traffic which would result from the proposed building can be readily absorbed on the surrounding road network, indeed, it was not seriously argued that the additional traffic could not be adequately accommodated. There is a traffic management device at the intersection of Gladstone Street with High Street, which restricts traffic flow to exiting vehicles. We think that traffic access to the subject land would be improved, and the traffic impacts on the amenity of the adjoining residential area would be reduced, if this traffic management device was relocated to a point immediately west of the rear laneway. However, this is a matter entirely in the hands of the council and other than for the foregoing observation, it is not a matter which we intend to address any further in this decision.

61 Other prolifically related issues raised in submissions, and in the cross examination of Mr Robertson, include loading and unloading, and waste removal vehicles. We are satisfied on the basis of Mr Robertson's evidence that loading and unloading on street is an appropriate outcome for the proposed mixed use development, and that the storage and collection of solid waste from the site is capable of satisfactory management.

62 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit granted, for a building which will nevertheless be substantially smaller than that proposed by the applicant.

63 In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

[1] Approximately 400 millimetres above footpath level.

[2] Bed-sits

[3] Which is included in the definition of "Accommodation"

[4] See in particular Clause 11.01 - Introduction; Clause 15.11 - Heritage; Clause 17.01 - Activity Centres; Clause 17.02 - Business; Clause 19.03 - Design and Built Form.

[6] By David Lock and Associates & Planisphere. This is a reference document under the Planning Scheme.

[7] Clause 22.08-3 allows 4 metres for the ground level storey and 3 metres per storey thereafter.

[8] Here we are talking about the main façade of the building, fronting High Street, and disregard for the moment the proposed corner element

[9] Refer to Attachment 1.

[10] Refer to Attachment 1

[11] Clause 22.08-3, Diagram 1. We note that Clause 22.09-3.2 incorporates a design guideline encouraging design techniques to avoid the wedding cake effect which would result from the literal application of the design guidelines relating to height and setbacks.

[12] Here we are describing the changes we propose to the overall massing of the building by reference to the deletion of particular floors and particular dwellings. However, we do now require that the ultimate architectural resolution of these design changes be literally or precisely the outcome which would result if these spaces were simply removed from the building without further modification

[13] Mr Czarny advocated bringing the lower levels of the building closer to the western boundary of the land to moderate the visual impact of the buildings height.

[14] See paragraph 43.