The decision of the responsible authority in permit application TP 2006-414 is set aside. A permit is granted in relation to land at 380-386 Little Lonsdale Street, Melbourne. The permit will allow the development of a multi level building generally in accordance with the endorsed plans and subject to the following conditions:-

1 Prior to the commencement of any demolition, bulk excavation, construction or carrying out of works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans received on 13 February 2007 but amended to show:

(a) The minimum clearance of the underside of the proposed verandahs/balconies projecting over Little Lonsdale Street from the existing footpath surface being 3 metres. The minimum setback from the face of the adjacent kerb being 750 mm;

(b) Details of Reduced Levels (RLs) above the Australian Height Datum, or a temporary benchmark which relates to existing conditions of the site, for all finished floor levels, the tops of all proposed walls, roof structures and architectural features;

(d) Details of any external service facilities such as air conditioners;

(e) The dimensions of the bicycle spaces and bicycle signage;

(f)

All apartments having access to the on site bicycle and garbage facilities;

(h) Sight distance for pedestrians to the sides of the proposed crossover improved through the use of clear glazing for a minimum of 1.0m along the eastern section of the wall within the vehicular entry/exit to the land and a notation on the southern boundary of the retail unit as "Glass" as per AS 2890.1;

(i) Sign(s) at the exit point into Little Lonsdale Street alerting exiting vehicular traffic to the proximity of pedestrians;

(j) The vehicular ramp headroom being a minimum of 2.2 metres and kerb design detail;

(k) Signage in the car park so that drivers of tall vehicles are not adversely affected by the change in headroom from the car park entry to the ground level ramp.

(l) An appropriate connection between the proposed loading bay, main lift lobby and bin store;

(m) The complete development of external, architectural detailing, colours and materials, of all facades (including podium walls) generally in accordance with the evidence of Mr Robert Stent, Architect, before the Victorian Civil And Administrative Tribunal in application P2447/2006;

(n)

A reduction in the podium height to 8 levels without necessarily reducing the overall height of the building;

(o) All east facing living and dining room windows being set back at least 4.5 metes from the east boundary of the land;

(p)

Measures to prevent excessive tyre squeal within the car park;

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:

(a)

the development is not started within two years of the date of this permit;

(b)

the development is not completed within four years of the date development starts;

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.

1 This is an application to review the decision of the responsible authority to refuse permission for 36 level building at 380-386 Little Lonsdale Street, Melbourne. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposal represents an overdevelopment of the site.

2. The proposed setbacks from side boundaries at levels 9-36 are inadequate to allow equitable distribution of outlook and sunlight between towers.

3. The height of the podium is excessive in relation to heights of nearby buildings in Little Lonsdale Street.

4. The absence of habitable floor space at the Little Lonsdale Street frontage on levels 5-8 will detract from the Little Lonsdale Street streetscape.

5. The proposed development is contrary to relevant provisions of the Melbourne Planning Scheme, including Clause 22.01 and Decision Guidelines set out under Schedule 1 to the Capital City Zone.

2 At the commencement of the hearing Mr Pitt 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. 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 Mr Pitt'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 The subject land is located on the north west side of Little Lonsdale Street, approximately mid way between William and Queen Street, and is occupied by an interwar industrial building presently used for car parking.

5 To the south west is the former Mint in substantial grounds with the buildings facing William Street. The Mint is set within a garden with the balance of the grounds, as it abuts the subject land, used for car parking. The grounds of the Mint are surrounded by a substantial brick fence which forms part of its heritage fabric.

6 To the north of the subject land is a large site containing the Royal Mint Centre a building occupied by the Australian Federal Police. To the east of the subject land is a lot of similar size to the subject land. This land is owned by Victoria University as is all the land on the north side of Little Lonsdale Street between the subject land and Queen Street.

7 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. Like the Mint these building are of considerable heritage significance.

8 On the south side of Little Lonsdale Street are the Children's Court and the rear of the County Court. The land is at the periphery of what is an important legal precinct with the central city.

9 Beyond these buildings and on the south west corner of Queen and La Trobe Streets is the Republic Tower apartment building. This building is part of an emerging residential precinct within this part of the central city, particularly to the north of La Trobe Street.

10 The proposal is for a 36 level building comprising a podium rising 9 levels above Little Lonsdale Street with a 27 level tower above. The top of the tower is 112.8 metres above ground level.

11 At ground level there is a retail outlet, a car park entry, entry foyers for the proposed apartments and service areas. Levels 2 to 7 have apartments facing Little Lonsdale Street and car parking to the rear. Levels 8 & 9 in the podium, and all the tower levels each incorporate a number of apartments. A gymnasium and pool are proposed at level 10.

12 The building incorporates in total:

•

113 one bedroom apartments;

•

144 two bedroom apartments;

•

120 car spaces;

•

76 bicycle spaces;

•

12 storage cages, and;

•

A loading bay.

13 The Subject land is within the Capital City Zone 1, and Design and Development Overlay 1 (Active Street Frontages). The land abuts land affected by a Heritage Overlay.

14 The principal policy influences are:

•

Clause 12 - Metropolitan Development including Guidelines for Higher Density Residential Development

•

Clause 19.03 - Design and Built Form

•

Clause 21.05 - City Structure and Built Form

•

Clause 21.08 - Local Areas

•

Clause 22.01 - Urban Design within the Capital City Zone

•

Clause 22.02 - Sunlight in public spaces

15 The subject land is a small regular lot located within the central city outside the retail core. The land is within an area identified by the planning scheme as being one in which there will be a substantial built form change.

16 The land is approximately 20 metres wide and 46 metres deep. It is the small size of the land which is central to the urban design issues contested in this application.

17 It was clear at the hearing, that from an urban design perspective, the preparation of the amending plans had the result that the permit applicant and the council were not far apart. Mr Prior in his evidence in chief observed that a factor which supported the proposed development, was the intensive development of an existing smaller lot without site amalgamation. More intensive development is being achieved as anticipated by the planning scheme, without modifying the fine grain pattern of subdivision in this part of the city. We think that this was an important observation, and one which affects the way in which the competing issues in this application are resolved.

18 In these reasons we deal first with the disputed urban design considerations, before turning to other matters raised by both the council and the affected persons who were permitted to make a submission to the Tribunal as a consequence of the order of Deputy President Gibson.

19 The amending plans reduced the height of the podium by one level, and introduced dwellings at all levels of the podium in its Little Lonsdale Street façade. Consequentially from an urban design perspective issues outstanding between the council and the permit applicant were the side setbacks of the tower element, and the question of detailed design development. In evidence Mr Prior expressed the view that the overall height of the building, and the proposed front and rear setbacks of the tower were acceptable.

20 The relevant urban design guidelines call for a separation distance of 24 metres between towers exceeding 45 metres in height. The guidelines seek to ensure that buildings are well spaced and offset to equitably distribute outlook and sunlight between towers and preserve privacy.

21 Having regard to the existing built form context, the proposed building complies with this guideline. The only other tower building within the subject city block is the Republic Tower located more than 50 metres to the north east. Other tower buildings on adjoining city blocks are more distant.

22 The issue debated at length in the hearing was how this guideline is applied having regard to the impact of the proposed building on the development potential of adjoining sites, ie;

i

To the west of the subject land is the land within the boundary wall of the Mint Complex, which includes a large area of vacant land used for car parking. Even putting aside for one moment the development constraints affecting the Mint land arising from its heritage significance, the site is so large that we do not think that it could be said that a tower on the subject land would unreasonably compromise the development potential of that land.

ii

To the north of the subject land is a large site containing the Royal Mint Centre a building occupied by the Australian Federal Police. This building is a relatively recent building and is unlikely to be redeveloped in the foreseeable future. In any event it is a relatively large site, and we do not think that a tower on the subject site would significantly constrain its redevelopment.

iii

To the east of the subject land is a lot of similar size to the subject land. This land is owned by Victoria University as is all the land on the north side of Little Lonsdale Street between the subject land and Queen Street and which includes the historic Public Records Office building. It is clear that if the 24 metre separation rule was applied as a mandatory requirement, then a tower could not be developed on this adjoining lot, and the development potential on that lot would be significantly affected.

23 How then should we regard this guideline in relation to building separation when considering the impact of a proposal on the future development potential of adjoining land, when both the subject land and the adjoining land are relatively small lots? On balance we think that the guidelines should be applied in respect of existing development, in other words it is really a first come first served consideration. The alternative approach would be that neither site can be developed, because the development of one would always prevent the development of the other.

24 When the guideline is applied as we suggest if a tower building is approved on one small lot, the decision maker considering the redevelopment of an adjoining lot at some future date, would have to decide:

i

whether or not it would be inappropriate to allow another tower building on the adjoining lot having regard to the guideline in respect of the separation of towers, or;

ii

whether or not it would be appropriate to allow a reduced setback between towers;

having regard the objectives of the guideline discussed in paragraph 20 above.

25 Within the subject city block the foreseeable opportunities to develop other tower buildings is limited. In such a context another slender tower on this immediately adjoining site may be acceptable. Alternatively in the present land ownership context, the potential for an acceptable future development scenario is even more positive, because Victoria University owns both the small lot to the east of the subject and other adjoining and developable land[1].

26 We accept Mr Prior's judgement that the overall height of the proposed building is appropriate having regard to the location of the subject land in the central city context. In relation to the podium height, Mr Prior's view was that the amending plans were perhaps acceptable but observed that the podium would nevertheless be considerably taller than any similar elements in Little Lonsdale Street between Queen Street and William Street.

27 The central city decision guidelines called for podiums with heights in the range of 35 metres to 40 metres. All of the urban design evidence suggests that a lesser height would be more appropriate in this part of Little Lonsdale Street notwithstanding the relevant guideline. The proposed podium remains substantially taller than the street façade of all other buildings fronting onto Little Lonsdale Street between Queen Street and William Street. Indeed, the podium is taller than the street façade of most buildings fronting onto Little Lonsdale Street east of William Street, at least as far as Exhibition Street. Mr Axford's digital montages demonstrate that the proposed podium would be seen as being taller than the Public Records Building, but not necessarily inappropriately taller having regard to the separation between the two buildings.

28 On balance we are of the view that the amending plans do not go quiet far enough, and that the podium of the building should be reduced in height by an additional one storey, (with the overall height of the building remaining unchanged).

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.

33 The side setbacks of the proposed podium, were not an issue raised by the parties. Nevertheless on Levels 8 and 9 there are eight dwellings on each level with east facing windows set back 1.2 metres from the east boundary of the subject land. The Tribunal was concerned about the future amenity of these dwellings, in the event that the small lot to the east of the subject land is redeveloped with a podium somewhat similar to that proposed on the subject land.

34 It is undoubtedly the case that these apartments are proposed in an extremely urban context. Furthermore, we would expect that the planning and building systems will ensure that absolute minimum standards in respect of daylight and ventilation would prevail. Moreover, it is entirely possible that within the central city area there are dwellings in buildings with a sole outlook to the wall of another building 2 to 3 metres away and that such dwellings may in fact be the more affordable dwellings within the central city area. However, the issue is should such an outcome be considered acceptable in the context of a quite substantial number of dwellings in a new purpose built building. On balance we are of the opinion that a more spacious outcome is desirable, and that the 9 metre rule of thumb serves as a basis for requiring that the east facing living & dining room windows of dwellings within the podium should be set back at least 4.5 metres from the east boundary of the site.

35 The Planning Scheme calls for high quality architectural outcomes. And even more particularly, the Planning Scheme calls for the side walls of buildings to be fully developed and the, unadorned, unfinished, side walls of the past to be avoided. These considerations are of particular importance in this case because:

•

The proposed building is a very substantial building and will become a prominent element in the cityscape, from a variety of vantage points, and;

•

The west façade of the podium levels, is unlikely to be concealed, at some future date, by buildings on the adjoining site.

36 Mr Stent in his evidence spoke about his firm's approach to high quality architectural outcomes utilising building approaches which are both commercial and economic. Mr Stent also demonstrated how the design of the proposed building could evolve to produce an interesting and satisfactory outcome.

37 As a result of Mr Stent's evidence, we are confident that the architecture of the proposed building can be developed to produce a high quality architectural outcome without compromising the aim to produce more affordable dwellings. We propose to include conditions on the permit which will require the permit applicant and its architect to enter into a consultation with the Council and its urban designers to produce a satisfactory outcome for this land.

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.

42 During the course of the hearing there were a number of other less determinative issues raised including, traffic congestion, car park layout, waste management, loading and the number of lifts. Our observations in relation to these issues are:

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.

43 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.

44 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 these reasons.

[1] In particular another small lot separated from the small lot to the east of the subject land under discussion by Sampson Lane.

[2] More particularly the small lot to the east.

[3] A 9 metre separation between habitable room windows relates to the Rescode privacy standard and has been accepted by the Tribunal as a "rule of thumb" for a separation distance between habitable rooms on adjoining multi level buildings in higher density, highly urbanised, environments, see Design Consortia Australia v Frankston CC [2004] VCAT 1718 and Salvation Army (Vic) Property Trust v Boroondara CC [2006] VCAT 660

[4] Assuming opposing habitable room windows separated by the space between buildings.

[5] Albeit with a very extreme change in amenity for the future residents of the proposed building