1. The responsible authority's decision with respect to the development plan for stage 2B, 40-70 Mount Alexander Road, Travancore is set aside.
2. The responsible authority is directed to endorse the document marked "Development Plan Stage 2B 40-70 Mount Alexander Road Travancore" prepared by Fender Katsalidis but amended to show the following:
   • (a) Amendments to the office tower layout to include an add ional office level within the proposed overall height of the building of RL93.90 as shown on the plan dated 15 April 2008 and presented to the Priority Development Panel [PDP] appointed by the Minister to assess the appropriateness of the proposed Stage 2B Development Plan (PDP);
   • (b) Replace relevant plans within the Development Plan with plans that reflect the plan dated 14 May 2008 (as it relates to Stage 2B) and which was provided on 16 May 2008 to the PDP, being:
     • (i) Inclusion of a 5 metre pedestrian path along Mount Alexander Road in front of Stage 2B development;
     • (ii) Reconfiguration of the southern entry to accommodate traffic engineer's swept path requirements;
     • (iii) Redistribution of 4 disabled spaces at ground level;
     • (iv) Inclusion of 7 short stay car spaces and 2 drop off spaces for child care centre use;
     • (v) Reconfiguration of bicycle parking to the east of the basement ramp;
     • (vi) Incorporation of ground surface treatment to be consistent with ground surface treatment for Stage 2A;
     • (vii) Introduction of northern drop off point for Stage 2B.
   • (c) Amend clause 4.3, page 52 of the development plan by adding the following to the table marked "schedule of proposed uses floor areas":

A permit may be granted to substitute residential use for some or all of the office use and/or child care centre listed in the schedule.

Mr C Canavan, QC, instructed by Mr T Brezzi, Deacons.

Mr A Biacsi, Town Planner, Contour Consultants Australia.

Mr J Walsh, Traffic Engineer, Cardno Grogan Richards

Mr J Rantino, Solicitor, Maddocks [28 July 2008], Ms J Sharp, Solicitor, Maddocks [29 July 2008]

Mr J Dickie in person on his own behalf and the Flemington Hill Residents Association [unincoporated body]

(Given orally on 11 August 2008 but subsequently revised and amplified)

1. This was an application against the Moonee Valley City Council's decision to refuse approval of a development plan for Stage 2B of the Lombard's land redevelopment at 40-70 Mt Alexander Road, Flemington.
2. The Lombard's land is located on the east side of Mt Alexander Road between Mooltan Street and the City Link overpass. The land is irregular in shape with an overall area of about 1.6 hectares. Development plans for stages 1 and 2A have been approved. The approved development plans provide for the redevelopment of the northern part of the Lombard's land with buildings ranging in height from 4-9 storeys which are to be mainly used for residential dwellings and retail floor space.
3. Stage 1 of the development covers the northern most part of the Lombard's land. This stage was approved by the Minister and has been largely completed. Stage 2A, which covers roughly the middle part of the Lombard's land, was approved by order of the tribunal after the council gave its consent to the endorsement of the plan subject to an agreed set of changes. Stage 2A allows for residential development and retail use with associated car parking within a built form that rises to 9 storeys.
4. Stage 2B of the Lombard's redevelopment relates to the southernmost part of the land. For the purpose of this decision, I will refer to this part of the Lombard's land as "the site".
5. The site is currently vacant. It is located on the east side of Mt Alexander Road and surrounded by stages 1 and 2A to the north, the Moonee Ponds Creek and City Link freeway to the east, the City Link freeway overpass to the south and Debneys Park and the Housing Commission estate to the west. Residential hinterland areas, including the Travancore Estate and Flemington Hill area, are located beyond the Lombard's site to the north and west to north/west. Delhi Reserve is located immediately to the north of the Lombard's land adjacent to Stage 1.
6. Contextually the site is located about 2-3 kilometres north of Melbourne's CBD and a similar distance south of the Moonee Ponds Principal Activity Centre. The site is proximate to public transport in the form of tram services on Mt Alexander Road and the Flemington Bridge railway station.
7. The development plan for Stage 2B generally provides for a 23 storey building that includes approximately 18,000 square metres of office space; retail floor space of about 200 square metres and a child care centre. A total of 477 car parking spaces are to be provided[1].
8. The ground level of the building will provide for an active retail interface with Mt Alexander Road. The next 8 levels above provide for car parking, with the upper levels occupied by the child care centre and office floor space. Access to car parking is from Mt Alexander Road via a link to be created between Stages 2A and 2B that would also provide a connection with the bicycle path on Moonee Ponds Creek.
9. Under the planning scheme the site is zoned Business 2. In addition to the implementation of planning policy, the purpose of this zone is:

To encourage the development of offices and associated commercial uses.

1. Office is an "as of right" or no permit required use within the zone. There is no maximum floor area for office specified in the schedule to the zone. "Shop" and "Child care centre" are Section 2 uses that require a permit. A permit is required under the zone controls to construct buildings and works.
2. The whole of the Lombard's land is covered by the Development Plan Overlay (DPO). Under Clause 43.04-1, a permit must not be granted for buildings and works and to use land until a development has been approved to the Responsible Authority's satisfaction.
3. The provisions at Schedule 6 (DPO6) apply to the Lombard's land. The schedule to the DPO allows a development plan to be approved in stages for the Lombard's land. It also sets out various requirements as to the information to be shown included within the development plan. The decision guidelines under the schedule require the consideration be given to:
   • Whether the built form recognises the site as a significant gateway to Melbourne and to the City of Moonee Valley.
   • Whether the location, height, bulk and appearance of the buildings or works will respect the character and appearance of the adjoining residential areas, Delhi Reserve and Mt Alexander Road.
   • Whether the layout and appearance of the buildings and works will provide appropriate physical and visual linkages through the site and to the adjoining and nearby reserves, paths and roads.
   • Whether the built form responds to the site's development potential to accommodate a mix of uses.
4. There are a number of planning policies that are in some way relevant to the consideration of the development plan. In relation to the State Planning Policy Framework (SPPF) these include the policies set out within Melbourne 2030 which are now expressed in Clause 12, Clause 17 - Economic Development, and Clause 19.03 - Design and Built Form. In relation to the Local Planning Policy Framework (LPPF), consideration needs to be given to the MSS which sets out its vision for Moonee Valley at Clause 21.03 and how that vision is to be achieved at Clause 21.04. More specifically, Clause 21.21 sets out strategies for Mt Alexander Road. I will refer to the relevant policies as appropriate.
5. On the 19 February 2008, the council considered a report form its planning officer that recommended refusal of the development plan for Stage 2B. The council adopted this recommendation. While minutes of the meeting of the 19 February 2008 simply say that the council refused the development plan, Mr Rantino said that the council is fundamentally concerned that a building of the scale proposed:

(i) does not appropriately respond to the decision guidelines in DPO6, and

(ii) is not sufficiently supported by the planning scheme's policy frameworks.

1. Although the legislation and planning scheme do not provide third party rights in this matter, nonetheless discussions have been held between the Flemington Hill Residents Association and the council. The Residents Association was also consulted by a representative of a Priority Development Panel (PDP) appointed by the Minister. Although I declined to join Mr Dickie and the Residents Association as parties to the proceeding given the intent and limitations imposed by the legislation and planning scheme, he was given leave to present a submission at the hearing on his own behalf and for the Residents Association.
2. Mr Dickie and the Flemington Hill Residents Association support the council's position in relation to the height and scale of the proposed office tower. However, Mr Dickie and the Residents Association have a number of other concerns including that the proposal will cause traffic problems in the area given the number of vehicle movements that would be generated and the site remoteness from an activity centre; design details, particularly with respect to the creation of appropriate linkages, have not been provided in a satisfactory way; there is an insufficient range of uses proposed and there will be an adverse impact on the character, heritage values and amenity of surrounding areas. Mr Dickie also expressed the concern that the proposal has not responded appropriately to policy and urban design guidelines for Mt Alexander Road.
3. On the 4 March 2008, the council gave its consent for the approval of Stage 2A and also resolved to refer the matter of "development beyond Stage 2A" to a PDP, an advisory committee established by the Minister for Planning. Amongst other things, it is the role of PDPs to "provide expert advice to assist in resolving issues and facilitating strategic planning outcomes"[2]. The Minister agreed to refer the matter to a PDP. The PDP facilitated discussions and negotiations between the parties and their respective consultants. I also understand that a representative of the PDP met with the Flemington Hill Residents Association.
4. By letter dated 16 June 2008 the PDP advised the Minister that:

Given its relative isolation from smaller scale architectural elements and its location adjacent to major road infrastructure and parkland, the PDP accepts that the site has the capacity to absorb height and a building of some significant scale. The tower form, as a high quality finished building, is not inappropriate nor will it compromise the City Link Gateway

1. Having set out the background to this matter, I will now turn to the consideration of the merits of the development plan. There are two key issues to be decided:
   • Is the proposed use and intensity of development proposed in the development plan supported by planning policy?
   • Is the height and design of the building appropriate having regard to the context of the site?

Is the proposed use and intensity of development proposed in the development plan supported by planning policy?

1. This site is part of a former industrial/commercial site. It is large and well located in proximity to Melbourne's CBD, the Moonee Ponds Principal Activity Centre and public transport.
2. There does not appear to be any specific reference to the Lombard's land in the LPPF. This is somewhat surprising given the size of the land, its strategic location at the gateway to 2 municipalities and a context that includes proximity to the CBD, Moonee Ponds Principal Activity Centre and public transport. Two planning scheme amendments, C58 and C70, affecting the land have been approved, the first of which was undertaken by the council and involved rezoning the land from Industrial to Business 2. It is fair to say that the overlay controls that were put in place provide guidance; however, it would have been helpful if some mention of this site and its strategic role in facilitating the vision for Moonee Valley were also included in the MSS.
3. However, in its vision for Moonee Valley, the MSS provides general direction as to how sites that occupied by redundant industrial uses and are well located should be used and redeveloped. In particular, at Clause 21.02-3, the MSS identifies the potential offered by industrial sites for redevelopment as one of the opportunities to "improve" the city. In particular, this clause says:

The age and condition of the city's industrial stock makes reinvestment an attractive option - one that council needs to facilitate. Redevelopment will attract new organisations to Moonee Valley, creating new jobs and capturing additional expenditure for local shopping centres and established businesses in the city.

1. At Clause 21.03 it is acknowledged that the city's aged industrial estates will be progressively redeveloped and major redevelopment is contemplated in such industrial areas.
2. It is also relevant that the council responded to the site's strategic context by facilitating Amendment C58 to the planning scheme which resulted in the Lombard's land being rezoned Business 2. This is not a matter to be dismissed lightly as the zoning is one of the principle mechanisms used to give effect to the implementation of planning policy. Further under Amendment C58, no cap or limit was placed on the site's potential to be redeveloped for office, a use that is totally consistent with the primary purpose of the zone and allowed "as of right" on this site.
3. It is not the council's position that the proposed development plan should be refused because too much office space outside of an activity centre is proposed. Mr Rantino made it clear that the council is concerned about the height and scale of the proposed office tower. However, Mr Dickie raised the concern about the appropriateness of allowing the proposed amount of office space level of office development outside of a designated activity centre.
4. This is a matter that is relevant when consideration is given to the policies at Clause 12.01 of the SPPF. To achieve outcomes that are consistent with the notion of "a more compact city", the strategies at Clause 12.01-2 call for the concentration of new development at activity centres near current infrastructure and in areas that can cope with change. With respect to "out of centre development", the strategies in this clause include:
   • Ensuring that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.
   • Ensuring that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.
5. Under this clause proposals for single use commercial facilities outside activity centres are discouraged in preference to locations within activity centres. This would support the proposition that an office development of this size is appropriately located within the nearby Principal Activity Centre. However, the clause goes on to say that "out of centre" proposals may be considered if it is demonstrated that there is a net community benefit.
6. In allowing the rezoning of a 1.6 hectare site to Business 2, a zoning that allows "office" on an as of right basis and no cap placed on the amount of office floor space, it seems inconceivable that this amendment to the scheme would not come with an expectation, or at least the possibility, that some form of major office could occur. Indeed, a significant office development could occur on this site even with buildings of relevantly modest height, say of 3 to 4 storeys, were contemplated across the Lombard's land.
7. The issue of whether the amount of floor space is acceptable was specifically considered by the council. The planning officer's report of the 19 February 2008 notes that the applicant submitted an economic report to the council. That report dealt with the impact that the proposal would have on the role of Moonee Ponds as a Principal Activity Centre. The officer's report notes the following "key conclusions" which I reproduce, in part, below:
   • The office market to the north and western regions has been historically underrepresented relative to other regions of Melbourne with Moonee Ponds the most significant node within its region....Despite its scale in a metropolitan context large private sector users are underrepresented in the Moonee Ponds office market.
   • The Moonee valley office market is already undergoing a shift away from its prevailing focus upon Moonee Ponds......
   • The proposed office building at the subject site is not considered to be directly competitive with office buildings in the Moonee Ponds Activity Centre but rather more competitive with buildings across the City Fringe region (primarily within the City of Melbourne and City of Yarra). One of the most significant reasons for the lack of competition is the difference in the form of the proposed building to the current stock in Moonee Ponds. The proposal offers very large floor plates in response to contemporary business needs whilst such large floor plates are unavailable (with exception of ATO building) and unlikely to be provided in Moonee Ponds due to the limited availability of large sites for office use[3].
   • The proposed office building would complement the office market in the Moonee Ponds Activity Centre and enhances the overall appeal of the City of Moonee Valley...........
8. The council's planning officer considered the use and floor space proposed to be acceptable albeit that the site is outside of an activity centre.
9. This matter was also commented on by the PDP. In its letter of advice to the Minister, the PDP recognised the potential conflict with the strategies for out of centre development at Clause 12.01. While expressing a preference for the building to be used for residential purposes, ultimately the PDP resisted saying that the office use should not be supported on this site.
10. Clause 12.01 suggests that out of centre development can be contemplated when a net community benefit can be demonstrated. It was Mr Canavan's submission that the proposal does demonstrate such benefit. These benefits include investment and job creation in the region; the optimisation of an underutilised site that is well located with respect to the CBD and public transport; the provision of a development of high architectural quality that provides an appropriate response to the context and gateway location; the provision of suitable linkages with public transport and the bicycle network; as well as contributions made by the proponent to public infrastructure, particularly road widening, the upgrading of Delhi Reserve, landscaping to Mt Alexander Road, improvements to Debneys Park and a payment for public open space. I agree these factors demonstrate net community benefit.
11. Unlike the circumstances in Burns Bridge[4], I have note been persuaded that the proposed office building would undermine the strategies for the Moonee Ponds Principal Activity Centre.
12. It is my view that there is strategic support for significant office building on this site. The LPPF recognises that redundant industrial land offers an opportunity for major redevelopment to improve the city. The purpose of the zoning supports the proposed use and development. The council does not oppose the development plan because of the economic impact associated with the provision of the amount of office space proposed. Indeed, the evidence supports the view that a large office building on this site will not adversely affect strategies which encourage office development to be located within the nearby Moonee Ponds Principal Activity Centre. A net community benefit has been demonstrated.

Is the height and design of the building appropriate having regard to the context of the site?

1. This leads me to the second key issue about whether the proposed tower is acceptable from an urban design viewpoint having regard to the context of the site.
2. There is no doubt that the tower will present itself as a substantial and prominent built form element. It will be readily seen as one approaches the site and from various vantage points in the surrounding area. The tower element is considerably taller than the other buildings that have been built and/or are approved for the Lombards land which, by and large, reflect medium rise development and have minimal impact on longer range views, such as northward views up Flemington Road as one heads towards Moonee Valley.
3. Consideration of whether the proposed office tower is appropriate requires an understanding of the context in which the building is to be inserted, the very first matter to be considered under the policy at Clause 19.03.
4. The site is on land zoned for business purposes and in close proximity to public transport. The site does not have a direct interface with dwellings other than those forming part of the Lombard's land redevelopment itself. It is also located adjacent to a major piece of infrastructure, namely, the CityLink. The CityLink freeway and overpass wrap around the east and southern sides of the site. Factors such a traffic noise, the relationship of the overpass to buildings and the need to respect to DCM[5] designed gateway treatment to CityLink need to be considered.
5. The site is also located in an area where other tall structures, namely the Housing Commission towers, exist. While the Housing Commission towers may not be architecturally significant buildings, nonetheless, they form part of the context and cannot simply be dismissed or ignored. The site also has an adjacency to Debneys Park, a public open that is valued by the community.
6. Residential hinterland areas that contain "fine grain" housing, some of which are of heritage value, are located beyond the development and infrastructure that surrounds the site.
7. Further, the schedule to the DPO recognises the Lombard's land as a gateway location for two municipalities, the Cities of Moonee Valley and Melbourne.
8. Accordingly, it is clear that the context of this site is unusual, complex, and indeed unique. As such, it was not surprising that this proposal has been the subject of considerable scrutiny by several design experts. Significantly, the urban design/architectural experts have expressed support for this proposal. In this regard I note that:
   • (a) The council's Manager of Urban Design considered the proposed development and subject to some relatively minor changes as outlined in the officer's report to the council dated 19 February 2008, did not express any particular concern about the proposed height of the building. This is significant given Mr Rantino's advice that the Manager of Urban Design was not limited in any way as to the matters able to be considered in expressing a view about the proposed development plan.
   • (b) The council also referred the proposal to an urban design/architectural consultant, F2Architecture. In its response to the council[6], the consultant advised that:
     • The built form responds to the significance of the location and identifies the southern corner of the site as the appropriate location for a taller building functioning as an urban design marker and gateway building.
     • The tallest built form (Stage 2B) is located at the southern corner of the site which serves two purposes. First it functions as a gateway statement and secondly it minimises any adverse impacts to the adjoining properties and screens the residential component of the development from the nearest parts of the elevated CityLink freeway.
     • The layout of the proposed buildings enhances public access along Mount Alexander Road and through the site.
     • The proposed development will accommodate a mix of uses.
     • In my opinion the location, height, bulk and appearance of the buildings will respect the character and appearance of the adjoining area. The proposed buildings successfully integrate the island site with its surroundings and continue the principles laid down in development stage 1..... The proposed development is likely to provide a high quality urban and architectural outcome for the site and the City of Moonee Valley.
   • (c) The council also sought further assistance from a third urban design/ architectural consultant, Mr Rob McGauran, a well known architect and urban design consultant/expert, to facilitate negotiations through the PDP process. McGauran is well known to the tribunal and often gives evidence. Following the discussions and negotiations undertaken with the PDP, Mr McGauran was prepared to give his support to the proposed tower element.[7]
   • (d) In its letter to the Minister for Planning, the PDP concluded that the tower form proposed is not inappropriate given the context of the land[8].
9. All of these experts were independent of the Bensons Group. Needless to say, the project architect Mr Sutherland and Mr Biacsi, the consultants engaged by the Bensons Group, also expressed support for the proposal. I also note that in correspondence to the applicant[9], the designers of the CityLink gateway, DCM, said that:

We had always considered that a large building could occur on your site and feel that what you propose is entirely consistent with our expectations. As such we have no concerns about your proposals.

1. The only expert view to the contrary of those thus far set out were those of the council's planning officer as set out in the report to the council on the 19th February 2008. In that report, the planning officer expressed the view that the proposal does not respect the character of the area including Mt Alexander Road. It is clear that this view was formed having regard to the comments from the council's Manager Urban Design and F2 Architecture. However, the planning officer did not have the benefit of the discussions that were facilitated with Mr McGuaran's assistance with the PDP, Mr McGauran's conclusions or the conclusions reached by the PDP itself. As such it is unclear as to whether the planning officer would have been able to arrive at the same conclusion if these additional views, all of which support the development of a tower on this site had also been known.
2. There is no doubt that the proposed building will be different to the balance of the development on the Lombard's land. However, bearing in mind the quite specific, perhaps unique context of this site and the support which the various urban design experts have expressed for a tower element on this site, I am satisfied that a development plan allowing the tower to be facilitated should be approved subject to the changes that have been negotiated through the PDP process and are now reflected in the order that I have decided to make.
3. In coming to this conclusion, I accept that the height proposed is not consistent with the Mt Alexander Road Urban Design Guidelines referenced in the policy at Clause 21.21. The guidelines suggest that buildings of three storeys should be developed on this site. However, the guidelines were developed in 2004 and, to some extent, have been overtaken by events. These events include the redevelopment that has occurred and/or been approved on the Lombard's land which ranges from four to nine storeys. Bearing this in mind it is relevant to note that even Mr Rantino conceded that it will be difficult to mount a case against a development proposal involving a 12-14 storey building on the site, a height that clearly exceeds what is contemplated by the guidelines.
4. I can understand the community would have difficulty accepting that a tower at the height proposed would be respectful of the neighbourhood character. I would make two observations in this regard. The first is that the notion of respecting neighbourhood character does not necessarily mean replicating what exists. Second, the response to neighbourhood character should be considered in light of the whole of the redevelopment of the Lombard's land, not just what occurs on this site. In this regard the northern parts of the Lombard's land redevelopment involves low rise buildings adjacent to Delhi Reserve and the residential hinterland to the north with the height gradually increasing as development nears the southern end of the site. This form of development provides a transition in height, with the taller elements located away from the most sensitive interfaces.
5. Bearing in mind the changes that have been made to the proposal to facilitate appropriate linkages through the site and the ground floor interface, I am satisfied that the form, height and location of the proposed tower is acceptable.

1. Mr Dickie raised other issues in his submission.
2. Mr Dickie expressed concerns about the traffic impacts of the proposal. I do not share these concerns. The report by Grogan Richards supports the proposal on traffic and car parking grounds. The Responsible Authority has not raised any traffic issues. VicRoads has considered the proposal and subject to some requirements being met, it has not opposed the proposal.
3. A concern was also expressed about the loss of views. It is clear that the proposed tower element will be seen from various vantage points, as shown in the photographs tabled by Mr Dickie. This includes views from residential hinterland areas; however they will be at a distance. Given the context, I do not accept that the change in views toward the site from residential areas will be unacceptable.
4. The proposed tower will be located to the east of Debneys Park. Although forming part of the context, I was not advised that any of the experts consider the impact on Debneys Park to be unacceptable.
5. The Travancore Estate to the north of the Lombard's land and the residential area to the west are located within Heritage Overlay Areas. The tower element is some distance from these areas. While there will be potential for it to be seen, no material was presented to enable me to reach the conclusion that it will have an unreasonable adverse impact on the heritage values of those areas.
6. Further, there was no evidence that the proposal will cause unreasonable adverse impacts on residential amenity by ways such as overlooking, loss of daylight, overshadowing, noise etc.

1. Accordingly, I have reached the conclusion that the development plan should be approved subject to changes outlined in the draft order tabled at the hearing. The changes implement agreements that were reached desiring discussions through the PDP process. In light of issues raised by the PDP, I agree with Mr Canavan that it is prudent that the development plan also be modified so that discretion exists to allow part or all of the office and/or child care centre floor space to be used residential purposes.

1. At the end of the hearing, Mr Canavan made application for costs against the council. I have reserved my decision on this issue pending further submissions from the parties.

[1] This description includes amendments made to the plan following the Priority Development Panel process.

[2] Refer to Department of Planning and Community Development web site.

[3] The view that there are very few sites within the municipality capable of accommodating a development of the type proposed was also acknowledged in the Officer's report to the council dated 19 February 2008, page 22 of 40.

[4] Burns Bridge Services Pty Ltd v Greater Bendigo CC [2005] VCAT 1155 (and upheld by the Supreme Court on appeal - see Burns Bridge Services Pty Ltd v Greater Bendigo CC [2005] VSC422

[5] DCM are Denton Corker Marshall, designers of the CityLink gateway.

[6] Design Report by F2 Architecture dated 5 November 2007

[7] Mr McGauran was not called to give evidence. This statement is based on advice from Mr Rantino at the hearing.

[8] Refer to paragraph 18 of these reasons

[9] Letter from Bill Corker to Bensons Group dated 17 August 2006