Busztyn v Melbourne City Council [2003] VCAT 1991 (29 December 2003)

Application for Review under s. 77 Planning and Environment Act 1987, extension to existing hotel, car parking, amenity

[2003] VCAT 1991

The decision of the responsible authority is set aside. A permit is granted and directed to be issued for the land at 379 St Kilda Road, Melbourne

The construction of a building and the construction and carrying out of works under clauses 34.02-4 (Business 2 zone), 43.02-2 (DDO17 and DDO19), and a reduction in the provision of car parking under clause 52.06-5, Melbourne Planning Scheme

1. The building hereby permitted shall not be occupied until the operator under this permit enters into an agreement with the Responsible Authority pursuant to the provisions of Section 173 of the Planning and Environment Act 1987 in which it shall be covenanted as follows:

(a) that the operator shall lease six car parking spaces in a nearby commercial car park to be approved by the Responsible Authority.

(b) that such lease agreement shall provide that the six car parking spaces shall be kept available for the exclusive use of patrons and or staff on Friday and Saturday.

(c) that the lease agreement shall provide for the validation or part validation of tickets and such arrangements shall be to the satisfaction of the Responsible Authority.

(d) that a sign, advising the availability of the car parking hereby required shall at all times be prominently displayed on the subject premises.

(e) that all promotional literature including business cards will carry a message advertising the car parking arrangements hereby required.

(f) that the requirements contained in this agreement shall form part of any lease of the premises which the operator under this permit may enter into with another party.

(g) pursuant to the provisions of Section 181 of the Planning and Environment Act 1987, this agreement shall be registered with the Registrar of Titles and shall run with the land.

(h) the operator under this permit shall pay the reasonable legal costs of the preparation and registration of the said agreement.

2. The development as shown on the endorsed plans must not be altered or modified without the prior consent of the Responsible Authority.

3. A schedule and sample board of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, fences and paving, outbuildings and structures.

4. Areas set aside for car-parking in the building shall be restricted to the parking of employer, employee, customer or client vehicles in association with the uses conducted in the building and must be made available for such use at all times, to the satisfaction of the Responsible Authority.

5. A valet parking service shall at all times be provided for the parking of vehicles within the car park area.

6. Car parking on the site on Friday and Saturday must be provided at no cost to persons parking vehicles within the car park area

7. The owner of the subject land shall construct a drainage system within the development and make provision to connect this system to Council's stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority.

8. The time for the commencement of the development hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act, 1987, specified as 2 years from the date of issue of this permit and the time for the completion is specified as 2 years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

F Reed, A Mulcahy, Dr M Fox and K Mansfield, K McMillan and D Berlin appeared on their own behalf. K McMillan appeared on behalf of L McKinnar. B Heath appeared on behalf of H Brown

1 This is an Application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought by T Bursztyn to review a decision by the City of Melbourne ("The Council") to refuse a permit .

2 I adopt the following description of the proposal, taken from Mr Tweedie's written submission:

It is proposed to construct two additional levels to the existing hotel building. The two new levels will be located above the modem extensions to the existing building. Again, the additions will comprise two "wings" joined by a glazed curtain wall element.

The additional two levels will contain a further 29 hotel rooms (and additional service rooms) over the two levels. The layout of the rooms will essentially match the layout on the existing third floor (fourth level).

The additional two levels will take the overall height of the building including the additions to 17.82 metres in height, when measured to the top of the parapet for the proposed fifth floor (sixth level). The existing lift over-run is proposed to be extended to 20.17 metres in height. A satellite dish is also proposed for the roof.

Both additional levels will be set back approximately 6.2 metres from the eastern rear boundary, with a fire escape stair located within this set back area on the fourth floor (fifth level).

The fourth floor (fifth level) is proposed to be set back 5 metres from the Bromby Street frontage of the site, The modem portion of the existing building is currently set back about 3 metres from the Bromby Street frontage. The 2 metre setback between the existing building and the proposed addition will be used to accommodate balconies to rooms on the new fourth floor.

The proposed setback of the new fourth floor (fifth level) from St Kilda Road matches the existing set back of the levels of the modern portion of the existing building located below.

The proposed fifth floor (sixth level) will be set back 5 metres from the Bromby Street frontage, but with no balconies intruding into this setback area. The setback from the eastern boundary will be the same for the floor below, with no stairway proposed in this setback area.

This floor will be set back a minimum of 5.4 metres and a maximum of 8 metres from the St Kilda Road frontage of the site, with balconies intruding into this setback.

The open fire escape stair located on the eastern side of the existing building adjacent to the eastern most wall will be extended up to the proposed fourth (fifth level) floor level. The fire escape is to be enclosed by a perforated metal screen. A walkway would extend over the roof of the existing third floor to allow access ftom within the new fourth floor level. An internal stair to the fifth floor (sixth level) will be located on the eastern side of the building.

A building services platform is to be located on the western side of the building above the roof level of the existing original Kellow Falkiner portion of the building.

3 Mr Tweedie also provided the following useful description of the review site and its locality which I adopt;

The subject land is located on the south east corner of Bromby Street and St Kilda Road.

The site currently contains a part two, part four storey building which operates as a hotel named the Royce Hotel.

The existing building includes the former Kellow Falkiner Showroom, which is a double storey building constructed in the Spanish Mission style in 1928.

A later addition to the building, which provided for the conversion of the original car showroom into a hotel, "wraps" around the original portions of the building. It is currently four storeys in height. It has effectively two wings, one of which fronts St Kilda Road, and the other which fronts Bromby Street.

The hotel has 71 rooms and a first floor function room and incorporates a ground floor restaurant (Dish) and a bar (known as the Amber Room). The bar and restaurant are not restricted to use by hotel patrons only. There is a courtyard area located in the south eastern corner of the site.

A basement car park with 23 spaces is accessed via a ramp from St Kilda Road. 16 of the 23 spaces are tandem spaces. One of the non-tandem spaces is a disabled space.

On the north side of Bromby Street opposite the subject site is Melbourne Grammar School. To the east of the site is a single storey Victorian dwelling (No 71 Brumby Street) which fronts Bromby Street (and owned by the Walkers) The single storey dwelling is a detached dwelling with a nominal setback from the boundary with the subject land. The private open space of the dwelling is located in the south eastern corner of the site.

To the south east of the site are the rear yards of two Victorian ten-aces which front on to Arnold Street. There are outbuildings located on the rear boundary of these dwellings, one of which partly abuts the eastern boundary of the subject site. An area of open space is located between the outbuildings on the boundary and the dwellings located further to the east. This open space area is open to the laneway and concreted.

Most of the remainder of land to the cast of the site along Bromby Street comprises single and double storey residential dwellings.

On the southern boundary of the subject land is a four storey office building. Land further to the south contains a three storey medical centre. There is then a two storey development used predominately for shops.

Land on the western side of St Kilda Road is used and developed for much larger scale multi-storey office and residential developments. That land is situated within the City of Port Phillip, the municipal boundary running down the centre of St Kilda Road.

4 The review site is zoned Business 2 under the Melbourne Planning Scheme. The purpose of the zone is, in addition to implementing the State and Local Planning Policy Frameworks;

To encourage the development of offices and associated commercial uses.

5 The review site is also affected by a Heritage Overlay (HO 490). A permit is required to construct a building and to externally alter a building under the overlay, however the existing building on the review site is identified as a place included on the Victorian Heritage Register and pursuant to clause 43.01-3 no permit is required to develop a heritage place included on the Register if a permit for the development has been granted under the Heritage Act 1995. A permit has been issued for this development (Permit P6178) and a permit is not therefore required for the proposed works under the Heritage Overlay.

6 There are two Design and Development Overlays applying to the review site. Pursuant to DDO17 - Shrine Vista a permit is required to construct a building or to construct or carry out works. The design objective is

To ensure that the Shrine of Remembrance and its outline as viewed from Swanston Street outside the State Library is not fully or partially obscured by any buildings or works.

7 The height of buildings or works must be in compliance with the shrine vista height control formula as prescribed in the Shrine Vista Computations Engineering Manual, June 1986 (Melbourne Metropolitan Board of Works E-023), and the views of the Shrine of Remembrance Trustees must be considered before deciding on an application. The extensions comply with the formula and the Trustees have not objected to the application. I am satisfied that the proposal meets the design objective of this overlay.

8 A permit is required to construct a building or to construct or carry out works under DDO19 - St Kilda Road Area. The design objectives of the DDO19 are;

* To encourage site development that will enhance the appearance, dignity and spaciousness of St Kilda Road.

* To protect and enhance the appearance of St Kilda Road as a major boulevard.

* To encourage urban design improvements so that the physical environment offers variety, interest, safety and convenience to people in the area.

* To encourage retention of those features of the area that enhance its appearance, give it character or provide a sense of identity.

* To encourage appropriate landscaped outdoor uses within a garden environment.

* To ensure that any new development or redevelopment is at a scale that protects the visual amenity of Fawkner Park.

9 The Table to the DDO19 specifies a height limit of 12 metres which can be exceeded and an applicant must demonstrate that a development will achieve the specific design objectives and outcomes of the schedule. The specified outcome in the table is;

Development does not intrude into the vista to the Shrine of Remembrance.

10 The table at Clause 52.06-5 sets out the number of car spaces required for uses not covered by a parking precinct plan or another clause. The requirement for car spaces for a use listed in column 1 of the table is the product of columns 2 and 3 of the table. A permit may be granted to reduce or to waive the number of car spaces required by the table. The table at clause 52.06-5 provides that for a residential building, one parking space per lodging room is required to be provided. Twenty nine parking spaces are therefore required to be provided.

11 With respect to the State and Local Planning Policy Frameworks, the following clauses are relevant;

* Clause 13 Principles of land use and development planning

* Clause 18.02 Car parking and public access to development

* Clause 22.05 Heritage places outside the Capital City Zone

* Clause 22.17 Urban Design outside the Capital City Zone

Council Consideration and the Application for Review

12 The Council required notice of the application to be given and 20 objections to the application were received. The application was refused by the Council on the following grounds;

a. The height and bulk of the additions would detrimentally affect the appearance of and are incompatible with the scale of the St Kilda Road and Bromby Street streetscapes and the appearance of the existing building.

b. The proposed additions are contrary to the Design Objectives of the Design and Development Overlay, DDO19, for the St Kilda Road Area and the decision guidelines for the Design and Development Overlay of the Melbourne Planning Scheme.

c. The proposed additions are contrary to the objectives of the Local Policy for Urban Design Outside the Capital City Zone of the Melbourne Planning Scheme.

d. There is inadequate on the site to meet the demand for which would be created by the proposed additions and insufficient access to on street car parking to meet this additional demand.

e. The additions are contrary to the purposes of Clause 52.06 of the Melbourne Planning Scheme for car parking.

13 The permit applicant subsequently commenced an Application to Review the Council's decision on grounds which generally refuted each of the grounds of refusal.

14 At the review hearing all parties tabled and read from written submissions or made oral submissions.

15 Mr Tweedie called Mr H Turnbull, traffic engineer of Traffix Group and Mr R Moore, urban designer, to give evidence. Both witnesses presented written reports and gave oral evidence, and were made available for cross examination.

16 Mr Southall called Ms R Hansen, town planner of the Hansen Partnership, Mr C Czarny, urban designer of the Hansen Partnership, Mr B Trethowan, architect of Trethowan Architecture, Mr G Tucker, traffic engineer of GTA Consultants and Mr S Hunt, traffic engineer of Grogan Richards. Each witness presented a written report and gave oral evidence and were made available for cross examination.

17 Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

18 I inspected the review site and the locality, subsequent to the hearing.

19 Mr Tweedie appropriately identified the principal issues in this matter as being the appropriateness of the design of the additions, and the adequacy of the car parking provision for the extensions.

20 With respect to the design issues, Mr Tweedie submitted that the proposed extensions will be excessive in terms of their scale and height both in terms of the site's interface with the residential area to the east and also in terms of its visual impact on the appearance, dignity and spaciousness of St kilda Road as a major boulevard.

21 Mr Tweedie relied on the evidence of Mr Moore with respect to these matters. Mr Moore was critical of the proposed increase in height to approximately 18 metres and it was his evidence that the proposed additional two storeys fails to respond to the site's context as it is required to do pursuant to the local policy at clause 22.17. Mr Moore said;

Being located on a corner site, an analysis of the proposed development needs to consider its effect from both the Bromby Street context and also from the broader approaches and views of the site from St Kilda Road.

As viewed from Bromby Street, the site clearly sits within a low-rise pocket, giving this precinct a distinct identity in contrast with the much taller and massive tower buildings that line much of St Kilda Road. Bromby Street is characterised by both one and two storey Victorian buildings and more modern two storey buildings. The existing two storey Royce Hotel building with its setback four storey modern addition sits fairly comfortably within this context.

As viewed from St Kilda Road, the site is again sitting in a low-rise pocket but with slightly taller buildings ranging from two to four storeys. The building immediately to the south of the subject site is a four storey building with a set back lift over-run built up to the site boundary. Again, the existing scale of the Royce Hotel and modern four storey addition sits comfortably in this context..........

I suggest such a development would be out of scale with the immediate built form on both streets and most particularly on Bromby Street. Such a development would also have the effect of overwhelming the scale of the original host building. A two level addition would be clearly visible and dominant from the west side of St Kilda Road above the host building fronting the road.

22 Mr Moore concluded that a single storey addition, constructed in a recessive, light weight manner, maybe more appropriate to the site context and more consistent with the outcomes sought to be achieved by the policy at clause 22.17

23 The objectors who are predominantly residents within the Bromby Street residential area broadly supported the submissions and evidence led by the Council, but raised additional concerns regarding the visual impact of the interface between the proposed additional two storeys and nearby residences, and amenity issues including overlooking. Concern was also raised about the existing use and the intensification of that use which would flow from the provision of an additional 29 rooms. In broad terms, I think Ms McMillan encompassed many of the objector's submissions by describing the existing development on the review site as an intrusive element in the neighbourhood, which the current proposal will only exacerbate.

24 I agree with Mr Moore that an extension to this building necessitates a design response to two very different interfaces, St Kilda Road and the lower scale, residential are to the east. I do not agree however that an appropriate design response should be limited to one additional, "light weight" storey.

25 With respect to the St Kilda Road interface, I think the visual impact of the additional two storeys on this grand boulevard and the manner in which it is appreciated will not be significanct. There are vantage points from within St Kilda Road from which the two additional storeys will be visible, but it is unclear to me why this ought to be regarded as a negative characteristic of the proposal. The St Kilda Road boulevard is a robust environment, comprising a very wide declared main road with substantial median strips, central tram tracks, established street tree planting and carrying high volumes of traffic at most times of the day. The extent of the additional built form associated with this proposal which has a direct interface with St Kilda Road is limited to a 13 metre section above the existing building which adjoins the somewhat nondescript, four storey, office building to the south. The proposed fourth floor is setback between 2 and 4 metres from the street boundary while the proposed fifth floor is then stepped to provide a setback of between 5 and 8 metres (with balconies intruding into that setback). The additional two storeys in this location will in effect conceal a blank wall and a lift overrun on the adjoining building, features which are both visible when travelling south along St Kilda Road.

26 The balance of the additional built form is setback approximately 20 metres and more importantly, behind the ridge of the roof of the original heritage listed building. As I have stated above, I acknowledge that the additional two storeys will be visible from various points in St Kilda Road, and from some vantage points the additions may even be quite prominent. At the present time, the Royce Hotel has a relatively low visual profile in the St Kilda Road streetscape and that profile will change as a consequence of the construction of two additional storeys, but I do not regard the additional height and scale of those additional storeys as being of such a magnitude as to have any deleterious affect on the grandeur of the St Kilda Road boulevard. I note that it was the evidence of both Mr Czarny and Ms Hansen that the proposal will enhance the boulevard by establishing a stronger visual presence on a corner site. I think there is some merit in that evidence, and I also think that the concealment of the blank wall and lift overrun on the adjoining building is a positive outcome in terms of this proposal's contribution to the St Kilda Road streetscape.

27 In my view, the proposal is consistent with the outcomes sought to be achieved by the design objectives of DDO19

28 With respect to Mr Moore's concerns about the proposal detracting from the host building, this is a matter which was addressed by the Heritage Council when it granted the permit for the additions under the Heritage Act, and it is not a matter about which I am required to make a finding.

29 I am also satisfied that the proposal responds appropriately to the lower scale residential area to the east. In arriving at this conclusion, it is significant that the review site is located within a Business 2 zone and as a consequence a substantial, commercial built form and scale on the site is to be anticipated. This does not mean that the interface between the residential area and the business zone does not need to be appropriately responded to but it does set a relevant context within which consideration of what constitutes an acceptable interface treatment must be undertaken. In this case, the interface is treated with a stepped built form resulting from the additional storeys being setback 3 metre from the parapet line of the existing building on Bromby Street and by 3.8 metres from the eastern parapet and 6 metres from the eastern boundary. The setback from the eastern boundary then increases to 10 metres further to the south and I agree with Ms Hansen's assessment that this successfully moves the visual bulk and mass of the building away from the adjoining residential areas to an acceptable degree.

30 With respect to other amenity impacts, the shadow diagrams submitted with the application demonstrate that the additional shadow cast by the proposal falls predominantly over the roof of the adjoining dwelling and that additional shadowing of private open space is limited to between 2pm and 3pm. In the context of this site existing at the interface between a commercial and a residential area, I consider this impact to be acceptable.

31 Opportunities for overlooking from the additional two storeys have also been appropriately minimised. Windows in the wall nearest the eastern boundary are at the end of an internal passageway rather than habitable rooms, while the windows and balconies further to the south along the eastern elevation are setback by between 10 and 12.8 metres and the balconies have a perforated screen. The combined affect of this treatment will be to limit view lines to the east from within the building, so that they will be predominantly over the roof tops of adjoining buildings, rather than downwards into private open space areas. It is also relevant to my findings that the residential area to the east of the review site is largely dominated by outbuildings and car parking areas rather than highly exposed and sensitive private open space.

32 During the hearing some reliance was placed on the existence of high rise buildings to the west of the review site on the opposite side of St Kilda Road as justification for the proposed additional two storeys. These high rise buildings clearly provide a dramatic backdrop when viewed over the review site from the east in Bromby Street, but the existence of that backdrop has not greatly influenced my findings in this matter. I have explained previously the context of the review site's eastern interface to which a design ought to respond, and I am satisfied that the design response is appropriate to that context.

33 I also received submissions that the proposal would adversely impact on the amenity of residents of the high rise towers to the west, because of its visual impact. The impact of two additional storeys on an existing four storey building located in a Business 2 zone, when viewed from an elevated position from buildings on the opposite side of St Kilda Road, cannot be regarded as an unacceptable impact.

34 I also note that some of the submissions made by objectors related to a large extent to the existing operation of the ground floor bar. The existence and operation of that bar is authorised by an earlier permit and its continued operation is not a matter which is before me.

35 Turning now to the issue of car parking, I was assisted in my deliberations by the evidence of three expert traffic witnesses. It was Mr Turnbull's evidence that the existing provision of 23 parking spaces on site represented a significant reduction in the required provision of parking at the time that the existing use and development was approved, and that that provision is insufficient in terms of meeting the demand for car parking generated by the additional proposed 29 rooms. Mr Turnbull's evidence was based on the surveys undertaken by GTA Consultants as part of the application made to Council, and on a spot survey undertaken by Mr Turnbull's firm in October, 2003. Based on that material Mr Turnbull concluded that;

Accordingly, the predicted on - site shortfall (three spaces) and the additional off site demand as a result of providing 29 extra rooms (29 rooms by 0.63 car/guest by 58% parking on street , equals 11 spaces), i.e. a total of 14 spaces cannot be met by the current supply of unoccupied spaces within the area surveyed by GTA. Significantly, this only relates to parking demand generated by guests of the hotel rooms and excludes any parking requirement for staff, or patrons to the bar, restaurant etc.

36 Mr Turnbull's concerns were primarily related to the lack of available unrestricted on street parking which is suited to resident parking, and to the higher parking demand generated by customers of the Royce Hotel which occurs on Fridays and weekends (0.63 spaces per room compared to 0.22 spaces per room during the week).

37 Mr Turnbull's evidence about the short supply and inconvenience of suitable on street parking was supported by a number of submissions by resident objectors.

38 Mr Hunt provided a detailed analysis of the car parking characteristics of the existing Hotel and concluded that the existing basement car park is under utilised and that the available capacity within that car park and the available on street parking is sufficient to accommodate the demand generated by an additional 29 rooms. Mr Hunt said;

Current usage of the on site parking indicates a minimum of 6 vacant guest spaces during the day increasing to 9 spaces over night during the week whilst at weekends there appear to be in the order of 10 vacant guest spaces during the day decreasing to 7 spaces over night.

The above analysis of parking demand indicates a peak requirement for 4 daytime spaces and 5 overnight spaces during the week and 9 daytime spaces and 11 overnight spaces during the weekend.

I conclude from this that additional parking generated during the week can be comfortably accommodated with existing reserves of on site parking. At weekends, it is anticipated that all additional daytime parking requirements can also be accommodated on site whilst over night some 4 vehicles would be required to utilise public parking surrounding the Hotel.

39 In terms of the availability of on street parking, Mr Hunt stated that;

........at weekends there are a minimum of 6 vacant, unrestricted parking spaces in the vicinity of the site at 8 pm increasing to in the order of 20 vacant spaces by 10 pm.

40 The car parking analysis presented by each of the witnesses is broadly consistent with each other in that all witnesses identified the weekend period as the period during which the proposed additional 29 rooms will rely on available on street car parking. While Mr Hunt and Mr Tucker were satisfied that sufficient on street parking is available to accommodate the increased demand, Mr Turnbull's view was that this is an area in which unrestricted on street parking is limited and that a waiving of parking requirements is therefore not justified.

41 During the course of the hearing, Mr Southall advised that while he relied on the evidence of Mr Hunt and Mr Tucker, he submitted that if the Tribunal formed the view that additional car parking ought to be provided to accommodate the shortfall of parking at peak (weekend) times, his client would be prepared to accept the imposition of a condition which required the applicant to enter into a contractual arrangement with a nearby commercial car park to provide parking for those peak nights, and for a reduction or waiver of the current valet parking charge for Friday and Saturday nights, to remove any disincentive this fee may have for the use of the basement car park.

42 It is my view that a total waiver of car parking requirements for the additional 29 rooms is not justified in the context of this locality and having regard to the availability and utilisation of existing car parking resources. I am satisfied however, that the imposition of a permit condition requiring the applicant to enter into a commercial arrangement with nearby car parks, combined with a waiving of the valet fee on weekends would be sufficient to meet my concerns with respect to the provision of car parking. My view on this matter is consistent with the evidence of all three traffic experts who gave evidence in this case that a short fall of car parking is likely to occur at weekends when parking rates per room are higher than weekday periods because of the higher proportion of local patrons. I am also satisfied that a commercial arrangement of the type proposed by Mr Southall represents an acceptable response to the car parking issue. In support of his submission on this matter, Mr Southall referred me to a number of decisions of this Tribunal which supported the use of commercial arrangements to make provision for car parking which would not otherwise be available.

43 I have imposed a condition to give affect to my findings on this matter.

44 With respect to other permit conditions, Mr Tweedie provided a set of draft conditions during the hearing, and I received submissions on those conditions. I propose to impose conditions generally in accordance with the conditions provided by Mr Tweedie, except that the waiving of the parking fee will apply on Saturday and Friday only.

45 It follows from the above that the decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached Order.