Camplin v Melbourne CC [2008] VCAT 460 (25 March 2008)

Melbourne Planning Scheme; Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit; Mixed use Zone; Heritage Overlay 3; DDO26; DDO32; Four storey office building with commercial uses at ground floor; Site with two frontages; Whether carparking and traffic arrangements satisfactory; Whether height and design acceptable in the context of surrounding development; Amenity impacts upon dwellings nearby. Contaminated site.

Camplin v Melbourne CC [2008] VCAT 460

1. The Permit Applicant is to advise the Registrar, the other parties and the Responsible Authority in writing by 8th April 2008 (notification date) whether it intends to lodge amended plans in accordance with the opportunity and leave hereby given, and in accordance with the Tribunal's recommended plan modifications.
2. Within thirty days of the notification date the Permit Applicant must complete any modified plans (completion date).
3. Within seven days of the completion date, the Permit Applicant must file with the Tribunal and serve on the parties and the Responsible Authority as follows:

1. fully detailed plans drawn to a scale of 1:100 showing the proposal with any and all modifications (but not including multiple options); 2. an accompanying letter pointing out each modification made;

1. one such copy is to be served on the Responsible Authority for its own use; and 2. one such copy is to be served on each of the respondent objectors.
2. The date by which the Applicant must complete service in accordance with the foregoing direction is the circulation date.
3. The Applicant must file with the Tribunal within seven days of the circulation date, a statement of service evidencing its compliance with these directions, together with a copy of the form of letter and any other document sent with it.
4. Within 14 days from the circulation date the respondent parties, including the Responsible Authority, must give notice to the Tribunal, the Responsible Authority and the Permit Applicant of their comments on the modified plans. If any party considers that a further hearing is necessary or desirable, that party should say so in his or her written submission stating why it is said to be necessary or desirable and what matters, limited to the amendments made to the plans, should be considered in such a hearing.
5. The Tribunal will then consider the amended plans and the submissions received and any request for a further hearing. If no further hearing is determined to be necessary, the Tribunal will make its final determination.
6. If the Permit Applicant finds this course unacceptable, the Tribunal will allow the review application and direct that no permit is to issue.

Ms Georgia Camplin in person. She also appeared on behalf of S Lowndes; A Gatto; S Derham; V & D Bosanac; A Hegarty; H Ahmet; E Kitchingman; H McDonald; C Linane & F J Tallorin.

Mr Geoff Leach on behalf of the North and West Melbourne Association.

Mr Garry Wissenden, consultant town planner of Hansen Partnership

Mr Lorenzo Rigoni, consultant town planner of Terrain consulting group. He called the following witnesses to give evidence:

• Ms Charmaine Dunstone, traffic engineer of the Traffix Group
• Mr James Holdsworth, urban designer and architect.

1. This case concerns a proposal to construct a contemporary four storey commercial building on a 1050sq.m site with frontages to Dryburgh Street and Little Dryburgh Street North in North Melbourne. The land was previously used as a transport depot. The new building would primarily accommodate office floor space and would have 69 basement car spaces with separate access split between the two streets.
2. Reflective of its Mixed Use zoning, land use and development in this area is quite diverse and includes industrial, manufacturing and residential. The site is also affected by a Heritage Overlay and two Design and Development Overlays.
3. The Council required public notice of the application to be given to neighbours and 21 objections were received. The Council decided to support the proposal and issued a Notice of Decision to Grant a Permit subject to various conditions.
4. Objectors are now seeking a review of the Council's decision.
5. The key issues for consideration in this case are whether:
   • the use of the land for an office is acceptable;
   • the height and design of the building is acceptable;
   • the proposal would create traffic and parking difficulties in the area;
   • residential properties nearby would suffer an unreasonable loss of amenity by way of overlooking and overshadowing;
   • remediation works are required in light of the site's contamination.

1. The review site is located on the east side of Dryburgh Street between Arden and Queensberry Streets. It has a secondary frontage to Little Dryburgh Street North and is contained within two titles. Both frontages are 40.39m and the site's depth is 25.36m. The site falls by about 1.7m from north-west to south-east.
2. Buildings and paving associated with the site's former use as a transport depot have been removed from the land and it now lies vacant.
3. The construction of a new three-storey residential development with a roof deck is nearly complete on the abutting land to the north (No. 220-226 Dryburgh Street).[1] This development is built to the common boundary with punctuations to two light courts on the third level. West and south facing windows serving bathrooms and bedrooms benefit from the light court.
4. The abutting site to the south is a 2-3 storey brick commercial building also built to the common boundary.
5. On the opposite side of Dryburgh Street are a mix of commercial/industrial uses interspersed with dwellings. One of these dwellings, No. 213 Dryburgh Street owned by Mr Cocks is known as Rose Cottage and is a 'B' graded building of heritage significance.
6. Immediately opposite in Little Dryburgh Street North are a number of dwellings. In the case of No. 24 Little Dryburgh Street North and No. 73-75 Lothian Street, these are warehouse conversions while the backyards of workers' cottages are located to the south. These residential properties typically rely on Little Dryburgh Street North for access to on-site carparking.
7. This area of North Melbourne is characterised by a range of uses including low intensity manufacturing and warehousing activity as well as residential, the latter taking the form of either warehouse conversions, new apartment development or workers' cottages. The scale of development varies from 1 to 3 storeys with some higher buildings such as the Melbourne Mills building on the corner of Lothian and Arden Streets also evident.

1. This proposal for a four storey building has the following features:
   • Two levels of carparking together with bicycle parking and lift access.
   • The lower ground floor contains 37 car spaces accessed from Dryburgh Street. Twenty spaces are in a tandem arrangement.
   • The upper ground floor contains 32 car spaces accessed from Little Dryburgh Street North. Twenty-six spaces are in a tandem arrangement. A small shop of 23sq.m is proposed at the Little Dryburgh Street North frontage. Other facilities at this level include a lobby, foyer and 115sq.m of commercial (display) space - the latter which is located along much of the Dryburgh Street frontage.
   • Office floor space would occupy the three levels above comprising 2,655sq.m floor area. The internal layout is identical through all three levels and also includes a meeting room, lobby, bathroom facilities, stairs and a lift on the south side. Each meeting room has a floor area of about 16sq.m.
   • The building would be constructed to all four boundaries with a 14m height at the middle of the site. Given the sloping topography, the building height varies from 13.2m to 14.9m at the southern and northern ends respectively.
   • Street facades comprise glass curtain walls while the north and south sides are to be concrete with some patterning. A screen of aluminium louvres is proposed to the Dryburgh Street façade while in Little Dryburgh Street North at street level, a patterned masonry and louvre treatment is proposed, providing natural ventilation to the carpark.

1. The land is in a Mixed Use zone. A planning permit is required for an office and shop use. The "commercial" space would in my view fall within the definition of a "commercial display area" - a use which also requires a planning permit and which should be notated accordingly on the plans.[2]
2. Planning permission for buildings and works is required in conjunction with these uses.
3. Dryburgh Street is in a Road Zone Category 1. Clause 52.29 provides that a planning permit is required to construct or alter access to a road in a Road Zone Category 1. Applications must also be referred to the Roads Corporation (VicRoads). This authority does not oppose this proposal subject to the inclusion of certain conditions on any permit issued.

1. The site is also affected by three overlays controls. They are:
   • Heritage Overlay - North and West Melbourne Precinct - (HO3)
   • Design and Development Overlay - Schedule 26 - North and West Melbourne Noise Attenuation Area (DDO26);
   • Design and Development Overlay - Schedule 32 - North Melbourne Peripheral (DDO32).
2. Planning permission is required for the construction of buildings and to carry out works under the terms of the Heritage Overlay. Decision guidelines require a consideration of relevant policies and whether a proposal will adversely affect the significance, character and appearance of the heritage place.
3. The DDO26 relates to residential and other noise sensitive uses. None of the uses proposed would invoke the requirements of the schedule to the Design and Development Overlay. It is therefore unnecessary to say anything more about the DDO26.
4. A planning permit is required for buildings and works under the DDO32 and a 14m height limit applies. The provisions of the DDO32 generated some debate at the hearing and I will return shortly to this overlay in greater detail.

1. Clause 52.06 of the Planning Scheme sets out specified rates for the provision of car parking spaces in conjunction with certain uses. In this case, an office use attracts a rate of 3.5 car spaces per 100sq.m of net floor area and 8 car spaces per 100sq.m of floor area are required for a shop. There are no rates specified for a commercial display area but an adequate number of car spaces must still be provided for uses of this kind.[3]
2. The on-site provision of 69 spaces is less than the specified rates. Planning permission is therefore required to reduce the required number of car spaces.

1. The shop and commercial display area attract a requirement for a loading bay under Clause 52.07 of the Planning Scheme. As no loading bay is proposed on site, planning permission is required for this aspect of the proposal.

1. Bicycle parking for an office use of this size is required under Clause 52.34 of the Planning Scheme. In this instance, 17 bicycle spaces are proposed which would exceed the rates required for staff and visitors.[4] A shower and change room facility are also required but are not presently shown on the plans. This can be required as a permit condition.

1. The parties referred to various State policies[5] that are relevant to my consideration of this proposal and I have taken them into account. Amongst these is Clause 12, giving effect to Melbourne 2030.
2. Local policies of particular relevance to this proposal are:
   • Clause 21.04 - Land Use
   • Clause 21.05 - City Structure and Built Form
   • Clause 21.08-9 - North and West Melbourne
   • Clause 22.05 - Heritage Places Outside the Capital City Zone
   • Clause 22.17 - Urban Design Outside the Capital City Zone
   • Clause 22.19 - Environmentally Sustainable Office Buildings.

1. Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering permit applications. These include the State and Local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

1. The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

Are the proposed uses appropriate in a Mixed Use Zone and in the context of planning scheme policies?

1. Mr Cocks questioned the acceptability of the site's proposed commercial use, contending that such a use would be inconsistent with the emerging trend of new residential development in the area. Mr Cocks, like Mr Leach submitted that the proposal would introduce an unacceptably intense use of the land, to the detriment of residential neighbours nearby. The intensity of the use was said to be inconsistent with local policies such as those at Clause 21.08-9 that provide support for "small to medium offices".
2. In forming my view about the acceptability of the uses proposed one of the purposes of the Mixed Use Zone provides a useful starting point:

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

1. Local policies including Clause 21.04 replicate this purpose. Clause 21.08-9 for North and West Melbourne also contemplates a mixed range of uses in this area including residential, retail, small scale business uses, some light industrial uses and small to medium offices as the following policy extracts highlight:

• Implementation of the objectives and strategies in Clause 21.04 includes:

Housing and community in North and West Melbourne

1.279 Support residential development in parts of the Mixed Use Zone in North Melbourne (identified as area [2] in Figure 20) while maintaining the predominantly low scale of the area. This area is expected to support a mix of uses including residential development, with retail and small scale business uses and some light industrial uses.

Office and commercial in North and West Melbourne

1.288 Support home business, small to medium offices and other commercial developments in the Mixed Use Zone of North and West Melbourne (identified as [2] in Figure 20).

1. It is clear that the zoning of the land and local policies support both residential and commercial uses including small to medium offices. I consider that the uses proposed are acceptable for the following reasons:
   • this area has a long history of mixed uses - including commercial and industrial activity interspersed with residential uses. The site was formerly a transport depot and warehousing, printing, manufacturing and automotive related uses are among the types of uses nearby that remain operational today;
   • I regard the proposed uses as being potentially less injurious than some of these other long standing uses;
   • while there may be a recent trend towards medium density housing local policies do not actively discourage other permitted uses in the zone. Indeed some light industrial uses are expressly contemplated by the policies described above;
   • I consider the office component as being of "medium" intensity within the policy context of "small to medium";
   • I accept Mr Rigoni's submission that if the Council sought to limit office and shop uses in the Mixed Zone as a means of advancing particular strategic objectives in favour of residential use and development it would have introduced floor area limits in the schedule to the Mixed Use Zone. No such limits exist.
2. Despite my findings as to the acceptability of the uses proposed, this does not amount to an "anything goes approach". Indeed policies such as those at Clause 21.04 describe amenity expectations for different zones in the City of Melbourne. Of relevance are the following amenity principles for land in a Mixed Use Zone as set out in Table 3 to this policy:
   • Ensure that responsibility for management of operational impacts such as traffic, parking, odour, light spill, signage and noise falls upon the agent of change, to minimise impacts on the neighbourhood.
   • Ensure that all new residential uses have appropriate acoustic attenuation measures.
3. I am also mindful of the fact that the uses proposed each require a planning permit while dwellings are permitted as-of-right. I therefore give preferential weight to the need for protection of residential amenity in light of this circumstance. However, as I have observed in the past, it must also be said that in a Mixed Use Zone, one cannot reasonably expect the same level of residential amenity capable of being enjoyed in a purely residential area. I think it is telling that the above policy would also require new residential development to include appropriate acoustic attenuation measures.

Land uses influence the sort of amenity experienced by residents and visitors to the municipality. The presence of business, retail and entertainment uses can create active and vibrant areas with good access to services and facilities, but could also mean increased noise from the operation of businesses, on-street parking impacts, and impacts from signs, lighting and odours.

1. Thus, while there is a need for new development to manage off site amenity impacts, amenity expectations must also be tempered by the mixed use function of this area. It is against this backdrop that I have considered the acceptability of this proposal.

1. It was common ground that the DDO32 which allows buildings of up to 14m in height does not imply that proposals designed to this height ought automatically obtain approval. Rather, there remains a need to consider a suite of relevant Planning Scheme matters, including state and local policies, the zone and all overlay provisions and decision guidelines.
2. While all parties agreed with this principle, they held opposing views about the acceptability of the proposal in terms of its height, scale and form and its relationship with identified heritage features.
3. Objectors all expressed concerns with the scale and height of the building, submitting that its size shape would not be sympathetic to the nature of surrounding development nearby. In support of these arguments, Ms Camplin and Mr Leach referred to the "Local Area Map - North and West Melbourne" (Figure 20) at Clause 21.08 of the Scheme and the accompanying text under the heading "Height and Scale in North and West Melbourne". A relevant land use implementation strategy is to:

1.303 Maintain lower scale streetscapes in other parts of West Melbourne and North Melbourne (identified as [2 and 3] in Figure 20). Ensure that development is sympathetic to the architecture, scale and heritage character of the lower scale areas.

1. Opponents of the proposal also contended that this development would not maintain lower scale streetscapes of North Melbourne and the building should reduced by one storey. Ms Camplin also argued that the building is:

...too modern to reflect the historic and cultural identity of North Melbourne. While the amended design is slightly better than the initial design, which was a huge glass house, this design is of large scale in both height and width, and uses a large amount of glass and hard crisp lines that are not sensitive to the architecture of the area at all.

1. The boundary to boundary construction was also criticised - a response that was said to emphasise the building's scale and mass.
2. Ms Camplin also spoke of the need for an improved degree of passive surveillance in Little Dryburgh Street North given existing problems with graffiti, submitting that this proposal would not deliver such a response.
3. I will address each of these issues in turn.

1. I begin by describing the controls that apply in Schedule 32 to the Design and Development Overlay.
2. Between Arden and Queensberry Streets , the DDO32 covers all of the land on both sides of Dryburgh Street, Little Dryburgh Street North and Lothian Street.
3. Schedule 32 has the following design objectives:
   • To maintain the predominant low scale nature of the area.
   • To ensure that development retains views to significant landmarks.
   • To ensure development supports high levels of pedestrian amenity related to access to sunlight and sky views and a pedestrian friendly scale.
4. I note that there are no significant landmarks in this area with which this proposal would interfere.
5. The maximum building height is 14m and a permit cannot be granted to vary this requirement in relation to new development of the kind proposed. Building height is described as:

...the vertical distance between the footpath or natural surface level at the centre of the site frontage and the highest point of the building, with the exception of architectural features and building services.

1. This schedule identifies five "built form outcomes" to which proposals must respond. Of relevance to this proposal are the first two points that state:

New development respects existing built form especially low scale of the existing older building stock in the street.

Development in streets with higher typical built form provides a transition in scale to the lower building forms.

1. Adopting the criteria for assessing building height, the proposal numerically complies with the 14m height limit. Given the topography of the land, however, the building ranges in height from 13.2m at its southern end to 14.9m at its northern end. The building would therefore be some 3.5m higher than the abutting commercial building to the south and between 2.3m[7] to 4.6m[8] higher than the new residential apartments under construction on the abutting land to the north. I think the development would provide an acceptable transition to both of these neighbours and other buildings further to the north and south.
2. I acknowledge that the proposed building will be taller than its nearest neighbours and the residential properties opposite in both Little Dryburgh Street North and Dryburgh Street. I consider however that its additional height is of an increment that is capable of being absorbed by this part of both streetscapes without unreasonable visual impacts. I might well have formed a different view if this 4-storey building were to be interposed between single storey dwellings in a streetscape where such a response is uncommon. But that is not the case here.
3. This is a robust hard-edged environment with a diverse range of building heights and forms. Smaller cottages which are single storey in scale are frequently interspersed with larger, taller buildings often two to three storeys in scale and commonly utilitarian in appearance. Although less common, examples of 4-storey development are nonetheless also evident nearby, including the residential development at the southern end of Little Dryburgh Street and the large imposing form of the Melbourne Mills building on the corner of Lothian and Arden Streets.
4. A further consideration is the relatively large size of the site whose frontages extend for 40m. Under cross-examination from Mr Leach, it was Mr Holdsworth's evidence that the vertical to horizontal proportions of the building in its current form are "about right". I agree. The image presented by Mr Leach showing the proposed building reduced by one level affirms my view about this. I consider that the building modified in this way would reduce it to a squat form with a disproportionate horizontal emphasis.
5. I am not persuaded by arguments that the planning scheme envisages development of the height and type proposed around the North Melbourne railway station. In that location a different schedule to the DDO applies - that is Schedule 28. It would allow commercial buildings of 20m in height and unlike Schedule 32, is not a mandatory control in relation to new development.

1. Mr Cocks who lives opposite the site in Dryburgh Street argued that the building would be out of character with the heritage qualities of the streetscape and his dwelling known as "Rose Cottage" which has a 'B' grading - the second highest level of heritage significance.
2. In forming my view about the acceptability of the proposal in heritage terms, it is relevant that the Heritage Overlay[9] requires consideration of the following:
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • Any applicable heritage study and any applicable conservation policy.
   • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
   • Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
3. In terms of significance, I note that the review site sits within streetscapes that have a "Level 3" grading. Council's heritage policy provides the following description of Level 3 streetscapes:

Level 3 streetscapes may contain significant buildings, but they will be from diverse periods or styles, and of low individual significance or integrity.

1. I consider that this is an apt description of the streetscapes in which the review site is located.
2. The heritage policy also defines 'B' graded buildings in this way:

'B' buildings are of regional or metropolitan significance, and stand as important milestones in the architectural development of the metropolis. Many will be either already included on, or recommended for inclusion on the Register of the National Estate.

1. The Statement of Significance[10] for Rose Cottage is as follows:

Architecturally, (similar to No. 155 Dryburgh Street but unpainted) it is a simple cottage built from a material used fro a short period in Melbourne's history and possessing, by its roof line and small setback, the characteristic form of an early cottage, of regional importance. Historically, one of a group of early houses owned and occupied by the building trade and other skilled occupations, of regional interest.

1. In forming my view about the acceptability of this proposal in heritage terms I have carefully considered the significance of the broader heritage place and Rose Cottage. In relation to the heritage place, that is the broader precinct, it is relevant that no specific statement of significance exists and the streetscape grading is "Level 3". This is the lowest grading available. Moreover, Rose cottage stands as an isolated example of a 'B' graded building in Dryburgh Street between Queensberry and Arden Streets. These factors, together with my own observations about the mixed nature of development in the area lead me to conclude that the heritage qualities of this area exert a lesser influence over new development than that which exist in some other heritage precincts. For example, this precinct is less sensitive in heritage terms than other precincts that contain a number of contributory buildings or where there is a distinct architectural consistency.
2. Relevant also is the distance of Rose cottage from the review site. Council's heritage policy refers to "adjoining" buildings. I regard the term "adjoining' to mean contiguous to or touching another building or site. Rose cottage does not adjoin the review site. I find that there is adequate separation between the two sites, across four traffic lanes, bicycle lanes, parking lanes and a central median such that the significance of Rose Cottage would not be unreasonably compromised by this proposal. Nor for reasons I have explained, would the significance of the precinct be adversely affected by this proposal.
3. Overall, I think that this building is well designed. Although stylistically different to many of its neighbours I regard it as a modern attractive building. Its siting from boundary to boundary is I think an appropriate response - one that is commonplace in this hard edge environment.
4. In Dryburgh Street, the provision of a commercial display area at ground level and the podium treatment will allow good levels of integration with the pedestrian realm. I agree with Mr Holdsworth that the addition of perforated metal screen panels to this façade as now proposed will "respond to the more fine grain rhythm of traditional architecture in the vicinity".
5. In Little Dryburgh Street North, I consider the provision of retail space and a pedestrian entry at the south-east end as a positive aspect of the design that will also activate the public realm of this 'back' street.

... the Little Dryburgh Street elevation is treated as a frontage of equal architectural resolution to the Dryburgh Street façade.

1. I say this for the following reasons. While I have found that there is no consistent form or style of development, there is one element common to most development in the area, particularly this smaller street. This element is the vertical segmentation of buildings. That occurs either as a consequence of individual development on narrower lots usually sitting side by side or in the case of larger buildings on wider lots, the vertical segmentation of facades into a number of narrower elements.
2. I think this has been successfully achieved in relation to the shop and meeting room elements in the south-east corner which have internal column rising through each level of the building. The remainder of the façade does not however, adequately respond to this fine grain pattern.
3. I also do not agree with Mr Holdsworth opinion that the introduction of vertical segmentation would not be appreciable in the narrower confines of Little Dryburgh Street North. During my inspection I observed a number of developments, such as the new apartments at the south end of Little Dryburgh Street South where architectural devices have been successfully used to achieve vertical expression of facades and which are readily appreciable.
4. On the second day of the hearing, Mr Rigoni tabled plans showing the introduction of three separate perforated screens primarily shrouding the upper level of the building. While I regard this as a step in the right direction I consider that the vertical segmentation should continue through all levels of the building. This could be achieved by lengthening the screens downwards in a similar fashion to the Dryburgh Street facade. Alternatively, in addition to the screens panels (but instead of lengthening them only), internal columns visible behind the façade or different glazing segments running vertically between the perforated screens could be introduced. I do not intend to prescribe which solution should be adopted as I am confident that the architect will design an acceptable solution. Indeed there may well be other solutions that would achieve the required outcome - provided the screens are included to at least the upper levels of the building to address potential residential amenity impacts - an issue to which I will return shortly.
5. On a related point, Mr Holdsworth recommended modifications to the car park ventilation screen in Little Dryburgh Street to limit solid masonry elements, thus minimising their attractiveness for graffiti and to overcome the need for mechanical ventilation. I do not take issue with this recommendation. Any redesign of this element would however need to include appropriate vertical segmentation for the reasons I have already explained. To this end, I do not support a continuous horizontal treatment of this element such as that shown on the plans tabled on Day 2 of the hearing. The replacement of the solid masonry elements with louvres in a contrasting colour thus maintaining a similar patterning of the façade to that presently shown would however achieve an acceptable outcome.

Interface with dwellings in Little Dryburgh Street North

1. Ms Camplin expressed particular concerns about the visual impact of the proposed building when viewed from inside her dwelling through three unglazed windows or more aptly, punctuations in the building façade, in Little Dryburgh Street North. Similar concerns were expressed in relation to the outlook from Ms Kitchingham's dwelling at No. 24 Little Dryburgh Street North through two façade punctuations.
2. During my inspection, I went inside both of these dwellings. In relation to Ms Camplin's dwelling, there would be views towards the proposed building from various locations including the kitchen and main living areas at ground level through the two smaller façade punctuations. Glimpsed views from a suspended corridor, effectively on the second level, are possible through the larger punctuation.
3. From Ms Kitchingham's dwelling, views would be possible through two façade punctuations from a terrace and bedroom/living room behind the terrace at a mezzanine level.
4. While views of the proposed building would be possible from these vantage points, I do not consider that such views would bring about unacceptable visual impacts. I say this for a number of reasons.
5. Firstly, I think that one must reasonably accept that views of a commercial building from dwellings in this inner city mixed use environment is not unusual. With the refinements I will require to the Little Dryburgh Street North façade, I consider that the building would achieve a reasonable fit with its neighbours.
6. Secondly, the building's presence will of course bring some change to the outlook from these dwellings. In the case of Ms Kitchingham's dwelling, views are presently available across the site and indeed towards the west side of Dryburgh Street. From Ms Camplin's dwelling, those views are primarily skyward with some glimpsed views towards the southern façade of the new apartments on the north side of the review site. The presence of those views are however largely due to the absence of any buildings on this site - a condition that given the large size of the site would realistically not remain in perpetuity. Even if a lower building was constructed on the review site, an appreciable change to the outlook from these dwellings would occur.
7. Thirdly, these two dwellings are located about 10m from the review site. The internal layout of the dwellings is such that indoor areas are recessed again behind the external walls which contain those façade punctuations. I think that adequate separation between existing and proposed buildings therefore exists.

Would the proposal create traffic and parking difficulties in the area?

1. Ms Camplin expressed concerns with a range of traffic related impacts said to arise from the proposed development. In particular, it was contended that increased traffic volumes particularly in Lothian Street and Little Dryburgh Street North would be unreasonably excessive given the absence of vehicle access to the review site at present. In light of increased traffic volumes, it was said that the design of Little Dryburgh Street North with its 90 degree bends at either end would potentially lead to traffic conflicts. More broadly, traffic safety issues were raised in relation to vehicles turning right into and out of Lothian Street at the intersections with both Arden and Queensberry Streets.
2. In relation to traffic volumes, it was Ms Dunstone's evidence that the traffic carrying capacity of surrounding streets would be capable of absorbing the additional demand generated by this proposal without any safety or amenity related concerns. In Little Dryburgh Street North, she estimated that 77 extra vehicle movements would be brought onto this road. This traffic would be split between the north and south ends of the street - depending on the origin of vehicles arriving to the site and the destination of departing vehicles.
3. It was also Ms Dunstone's opinion that in relation to traffic safety concerns:
   • Little Dryburgh Street North is a low speed environment, given the 90 degree configuration and its narrow width. Visibility would be acceptable around the bends given the presence of parking restrictions on one side
   • More broadly, there are many ways of approaching and exiting the site through the surrounding road network which allows a high degree of flexibility including the avoidance of right turns. While it is not desirable to make right turns into Lothian Street from Arden Street the controlled intersection at Abbotsford Street could be used instead.
4. In broad terms, I agree with Ms Dunstone's analysis of the proposal's traffic implications. I consider that the surrounding road network can absorb the additional traffic generated by this proposal without any unreasonable traffic or amenity related impacts.
5. While it is true that the site has not historically used Little Dryburgh Street North for vehicle access, I am not persuaded that there are any valid town planning or traffic related reasons to maintain this arrangement given the large size of the site in this mixed use environment. I observe also that there are a number of other commercial properties who rely on this street for access including use by large delivery vehicles with the potential for greater amenity related impacts than the nature of traffic associated with an office use.

1. Opponents of the proposal submitted that the on-site parking provision would not adequately meet demand generated by the proposed uses resulting in overspill parking onto surrounding streets. Such on-street parking opportunities were said to be extremely limited and in high demand - particularly long term parking spaces.
2. On the other hand, it was Ms Dunstone's evidence that a parking rate based on 2.5 spaces per 100sq.m of net floor area would be acceptable to cater for long term parking demands and that adequate on-street parking would be available for visitors. Parking surveys conducted by Ms Dunstone's firm found that of the 335 spaces within an area of approximately 200m of the site, 46 spaces were available at peak times.[11] Of these, only 8 short term spaces were available along Dryburgh Street between Queensberry and Arden Streets.
3. She also relied upon journey to work data from the 1996 census (ABS). This data shows that in the City of Melbourne (excluding the CBD):
   • only 55.8% of all trips to work were made by car (as the driver) compared to the average of 65.2% for nine 'inner suburban' municipalities.[12]
   • 20.2% of journeys were made by public transport.
4. Ms Dunstone also contended that the area is well serviced by public transport including tram services in Abbotsford and Queensberry Streets and the North Melbourne train station 750m away.
5. Before commenting on this issue, I think it is useful to re-state the proposed on-site parking provision for the various uses:
   • Shop - 1 space.
   • Office - 66 spaces.
   • Commercial display area - 2 spaces.
6. Firstly, I am satisfied with the parking provision for the proposed shop which I think, because of its small size and absence of main road exposure will have a localised role primarily attracting persons who live and work nearby.
7. I am not however persuaded that the level of on-site parking proposed would be acceptable to meet the likely demands generated by the office use. The planning scheme rates for an office set out under Clause 52.06 would require 3.5 car spaces per 100sq.m of net floor area. For 2,655sq.m of floor area, 93 car spaces for the office use alone would be required. Additionally the office floor area calculations have not taken into account the meeting rooms on each of the three levels of the building. Based on planning scheme rates, these rooms would account for approximately an additional 48sq.m of floor space (total 2703sq.m). At a rate of 3.5 spaces per 100sq.m, this equates to a requirement for 95 spaces.

1. Preliminary testing of the site by the permit applicant's environmental consultants (Alpha Environmental Pty Ltd) has revealed the presence of soil and ground water contamination.[14] The findings of that report include recommendations for further remediation of soil and ground water.
2. Ms Camplin expressed concerns about the potential impact of soil and ground water contamination upon residents and the ecosystem.
3. The Council did not seek to impose any relevant conditions on the Notice of Decision to Grant a Permit (the NOD). Instead a note appears on the NOD which simply states:

A preliminary contamination assessment of the site identified some soil and groundwater contamination on the site. The permit holder should make their own enquiries as to any further remedial work that should be undertaken before development.

1. Although, as Mr Rigoni and the Council correctly pointed out that an Environmental Audit Overlay does not cover the land I consider that the recommendations made by Alpha environmental ought be implemented.
2. I will therefore require two new conditions on any permit issued which reflect those recommendations. I will also require the preparation of a management plan, particularly as contaminated soil may need to be removed from the land.
3. The conditions will be as follows:

Prior to the commencement of any bulk earthworks on the site, the following documents must be prepared by an appropriately qualified professional consultant:

(a) a further detailed investigation of soil and groundwater contamination

(b) a management plan detailing appropriate measures for the management of contaminated soil and groundwater during and after construction of the development approved under this permit.

A copy of the investigation report and management plan must be provided to the Responsible Authority and all costs associated with obtaining the report and implementing the recommendations must be met by the permit holder. The recommendations contained in the investigation report and management plan must be implemented, including, but not limited to, the remediation of any contaminated soil and ground water as far as practicable.

1. There was come discussion at the hearing about a number of matters including a requirement for a construction management plan, waste management plan and plan modifications in relation to roof top plant and equipment and appropriate ramp grades and head room clearances in the car park.
2. I will require suitably worded conditions dealing with all of these matters.

1. I have found that, subject to the recommended modifications, this proposal has the potential to be worthy of a permit. However, a number of the amendments I have described - primarily related to the car parking shortfall - may give rise to consequential amendments and may require further scrutiny.
2. Accordingly, my directions require that any amended plans are to be circulated to all parties to provide an opportunity for comment on the plans and the changes that I have required. Any comments on those plans are to be limited to the amendments I have requested only. It is not an opportunity for broader issues already discussed at the hearing to be raised again.
3. I also make it very clear that this opportunity to redesign should be seen as an opportunity to rectify the shortcomings in the design as a response to the planning scheme controls. This will enable the Tribunal to further review the proposal. It does not mean that a permit would be granted as a matter of course.
4. If the plan amendments were not to my satisfaction, as not complying with the spirit and specifics of this decision, I would refuse a permit.

1. I now summarise my recommended modifications expressed above which may lead to the grant of a permit for the development.
2. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans described as Drg No.'s A03, A04, A05, A06, A07, A08, A09, A10, A11, A14, A15, dated November 2006; Drg. No.'s A13 and A16 dated January 2008 and Drg No. A12 as modified to include the architectural screen feature as shown on plans submitted to Council on 25 May 2007; Job No. 5050 prepared by John Demos Architect but modified to show:
   1. the inclusion of additional vertical segmentation to the Little Dryburgh Street North façade in accordance with paragraphs 71 and 72 of my reasons;
   2. cross-sections demonstrating that the design and placement of the Little Dryburgh Street North screens will limit views into windows of residential properties opposite.
   3. shower and change room facilities;
   4. the location, height and design of any roof top plant (including any lift overrun) screened from view with appropriately design architectural devices, with such equipment limited to the southern, central part of the roof;
   5. a plan notation describing the "commercial space" as "commercial display area";
   6. on-site parking spaces for the office use provided at a rate of 3 spaces per 100sq.m of net floor area including any consequential modifications to the design and layout of the building;
   7. the location of 1 car space for the shop use and 2 car spaces for the commercial display area use;
   8. the location and design of waste storage areas;
   9. conditions 1, 4 and 5 described in the Vic Roads letter dated 30 July 2007;
   10. in relation to the Lower Carpark, a headroom clearance of 2.2m in accordance with AS2890.1-2004 and ramp grade modifications to achieve a 1 in 8 ramp for a distance of 4.5m from the property boundary and 1 in 37 ramp for 5.08m to the basement level as described in Section 6.3.1 of the statement of evidence by Ms Charmaine Dunstone.

[1] Planning Permit TP-2005-741 issued on 22 September 2006.

[2] "Commercial display area" is defined under Clause 74 of all Victorian Planning Schemes as "land used only to display goods".

[4] I calculate that at least 9 bicycle spaces are required for staff and 3 for visitors.

[5] See in particular Clause 11.01 - Introduction; Clause 12 - Metropolitan Development; Clause 15.11 - Heritage; Clause 15.12 - Energy Efficiency; Clause 17.02 - Business; Clause 18.02-1; Clause 19.03 - Design and Built Form.

[6] See for example _Alexander v Bayside C_C [2007] VCAT 2300

[7] Measured to the top of the top of the tallest elements on this neighbouring building.

[8] Measured to the top of parapet on the south side of this neighbouring building.

[9] Clause 43.01-4 of Melbourne Planning Scheme

[10] North and West Melbourne Conservation Study by Graeme Butler. Study dated 1 July 1991.

[11] Based on surveys conducted on Thursday 6th December, 2007 between 10am and 3pm.

[12] The municipalities classed by Ms Dunstone as 'inner suburban' are Melbourne (excluding the CBD), Stonnington, Yarra, Port Phillip, Boroondara, Moonee Valley, Moreland, Darebin and Maribyrnong.

[14] Report titled "Preliminary Contamination Assessment 202-232 Dryburgh Street, North Melbourne for V M Romano Constructions" July 2006 by Alpha Environmental Pty Ltd.