Brady Lonsdale Pty Ltd v Melbourne CC [2007] VCAT 349

Brady Lonsdale Pty Ltd v Melbourne CC [2007] VCAT 349 - VCAT 2007 case summary — Zoe

[20]

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

2 The verandahs/balconies shall be drained to a legal point of discharge in accordance with plans and specifications approved by the Responsible Authority.

3 The owner of the subject land shall construct a stormwater drainage system for the development at no cost to Council and make provision to connect this system to Councils underground stormwater drainage system and, where necessary, upgrade the system to accept the discharge from the site in accordance with plans and specifications first approved by the Responsible Authority.

4 The owner of the subject land shall construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications approved by the Responsible Authority.

5 The owner of the subject land shall not alter existing footpath/road levels without prior written consent from Responsible Authority.

6 The Little Lonsdale Street footpath shall be upgraded and reconstructed in sawn bluestone together with associated works including the renewal and/or relocation of kerb and channel and the relocation of all services, pits and covers as necessary at the cost of the owner/developer in accordance with plans and specifications approved by the Responsible Authority with the works being carried out simultaneously with the reconstruction of the balance of the northern footpath in Little Lonsdale Street between William and Queen Streets.

7 Prior to the commencement of construction, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act, 1987.

The agreement must provide for the removal of any windows and/or openings on the boundary when the adjoining property is further developed in a manner which would require the closure of these windows and/or openings.

The owner/permit applicant of the land subject of this permit must pay all of Council's reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

8 Prior to the commencement of the development, the owner must prepare a Waste Management Plan to the satisfaction of the Responsible Authority.

9 All garbage and other waste material must be stored in an area set aside for such purpose, to the satisfaction of the Responsible Authority.

10 The area shown on the endorsed plans as garbage storage area must contain a floor waste tap and the area must only be used for garbage storage. The garbage storage area must also include adequate space for recyclable materials, to the satisfaction of the Responsible Authority.

11 Prior to the commencement of the development hereby permitted, a wind effects statement shall be submitted to the satisfaction of the Responsible Authority and modifications must be made to the design of the development to reduce any adverse wind conditions in areas used by pedestrians, to the satisfaction of the Responsible Authority. The recommendations of the report must be implemented at no cost to the Responsible Authority.

12 Prior to the commencement of any construction work (including excavation), the contractor appointed to carry out the work must submit a Construction Management Plan, with the objective of minimising adverse impacts on the environment and local amenity, with all details to the satisfaction of the Responsible Authority.

13 An appropriate remote control mechanism must be provided to activate the roller door or similar device from a distance as motorists approach the site.

14 The parking area and loading area must be kept available for such use at all times and the car parking spaces and access-ways must not be obstructed or otherwise rendered inaccessible.

15 The areas set aside for parking on the endorsed plans must not be operated as a public car parking facility. The areas set aside for car parking in the building must be restricted to the parking of the vehicles of, owners or occupiers of tenancies within the building or of visitors to the building.

16 All service pipes shall be concealed from the view of a person within public thoroughfares and adjoining properties.

17 A schedule and samples of all external materials, colours and finishes (including sample board) must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, (including car park surfacing), outbuildings and structures.

18 Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.

19 Any equipment or plant must not generate a noise level greater than 5 db (a) above ambient L 90 sound level at the boundaries of the site at any time of day.

20 The demolition hereby permitted must not be commenced unless and until the Responsible Authority is satisfied that the permit holder has made substantial progress towards obtaining the necessary Building permits for the development of the land generally in accordance with the development of the land proposed under this permit and the permit holder has entered into a bona fide contract for the construction of the development.

21 The development as shown on the endorsed plan(s) must not be altered or modified without the prior written consent of the Responsible Authority.

22 This permit will expire if one of the following circumstances applies:

[44]

29 It was Mr Prior's preference that the proposed tower be set back 5 metres from both the east and west boundaries of the subject land. The basic purpose of this setback is an urban design purpose, and assumes a similar building on adjoining sites[2], and seeks to maintain a minimum separation between buildings. A secondary purpose is an amenity purpose which seeks to establish a minimum separation between the principal habitable room windows of dwellings facing each other across a space between buildings.

30 The amended plans responded to this requirement of the Council, by leaving the western setback of the tower at approximately 1.6 metres, but increasing the eastern setback of the tower from 1.6 metres, to 4.5 metres, towards the centre of the eastern façade opposite the main habitable room windows of east facing dwellings[3]. The applicant's amendments are not directed so much towards an urban design outcome, but to create a situation where if another tower was permitted on the adjoining lot to the east, then the opportunity exists to create an appropriate interface between the two buildings[4].

31 In relation to the western interface we agree that no additional set back is warranted. In our view any reasonably foreseeable development on the Mint land would result in a quite spacious relationship between the proposed building and any building on the Mint land and therefore an additional set back is not warranted.

32 In relation to the eastern façade, a conceivable scenario is that a similar tower is allowed on the small lot to the east, on the basis that the opportunities for additional tower buildings within the subject city block are quite limited, and that therefore two closely spaced towers would not adversely affect the cityscape in a more general sense. In this scenario we agree that a satisfactory amenity outcome could be achieved[5] responding to the proposed setbacks and consider that it would be immaterial whether or not the perceived space between the buildings was a minimum of 3.2 metres or 10 metres because from most viewpoints the buildings would be viewed as a single built form mass. Having formed this conclusion, we think that this is a situation in which the loss of dwellings entailed by the increased setback proposed by the Council is not justified having regard to the limited benefit which would be gained from an urban design perspective.

[49]

38 Adjoining the subject land to the west is the site of the former Mint and its grounds. At Queen Street on the north-west and south-west corners of Little Lonsdale Street respectively, are the former Public Records building, and Titles Office. All three buildings are on the Victorian Heritage Register, and all are affected by individual heritage overlays under the provisions of the Planning Scheme. The subject land abuts land affected by a heritage overlay, but is not within a heritage overlay.

39 The subject land adjoins that of the Mint complex. The west wall of the existing building on the land directly abuts part of the substantial brick wall which surrounds the Mint grounds, and which is part of its heritage fabric. The west wall of the proposed building will similarly abut the wall of the Mint. Mint Inc argued that the proposed building was so large that it would detract from the heritage significance of the Mint. This was not a view supported either by Council's own heritage adviser, or Mr Briggs who appeared on behalf of the permit applicant.

40 It is true that the proposed building will be the closest high-rise building to the Mint, and will be very prominent viewed from within the Mint site, and will be seen as part of the backdrop to the Mint, from a number of vantage points. However, Mr Axford's digital images demonstrated that the proposed building adds to rather than creates the circumstance in which the Mint and its curtilage are viewed in the context of larger more modern buildings.

41 It is commonplace within the central city for important heritage buildings to be located cheek by jowl with larger more modern buildings, and a nearby example of this close relationship is that between the former Records building and the Republic Tower. While we think it is important that the architecture of the building be developed to the extent that it is an attractive addition to the cityscape within which the Mint is seen we do not think that the redevelopment of the subject land with a large modern building is inappropriate from a heritage perspective.

[51]

i

It was Mr Walsh's opinion that in the peak hour traffic generation associated with the proposed building was unlikely to be substantially different to that of the existing car park on the land. We accept this opinion and note that the council did not regard traffic generation as a significant issue;

ii

Council's traffic engineer was critical of the car park layout more particularly in relation to conflict between circulating traffic. We accept that the layout is constrained but are of the opinion that this is primarily a product of the small size of the subject land, and should not be regard as being fatal to the proposal;

iii

In relation to waste management it is clearly the case that at street level some redesign of the floor plan is required to create appropriate connections between the bin store, the loading area and the street. The council opposed any collection of waste from the street. We do not necessarily consider that this option should be categorically rejected. The ultimately preferred option depends on the detail of a particular waste management proposal. This is a matter which can be satisfactorily resolved through conditions.

iv

A limited loading facility is to be provided on site, and there is a loading bay in Little Lonsdale Street. This seems to us to be a satisfactory outcome in a central city context.

v

Two lifts are planned to provide access the proposed tower. It was alleged, without any supporting evidence, that two lifts would be inadequate. It was submitted on behalf of the applicant, that buildings of similar scale served by two lifts had been successfully development by the applicant, and Mr Stent in evidence said that factors which influence the number of lifts include car size and speed. To the extent that this is a fundamental safety issue, it is a matter for building regulation. The absence of any applicable design guideline or standard means that other issues such as amenity are matters properly left to the consideration of future purchasers.

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Brady Lonsdale Pty Ltd v Melbourne CC [2007] VCAT 349 (8 March 2007)

Parties

Legislation Cited (1)